[Federal Register Volume 65, Number 205 (Monday, October 23, 2000)]
[Rules and Regulations]
[Pages 63438-63466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26967]



[[Page 63437]]

-----------------------------------------------------------------------

Part III





Department of the Interior





-----------------------------------------------------------------------



Fish and Wildlife Service



-----------------------------------------------------------------------



50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Determination of 
Critical Habitat for the San Diego Fairy Shrimp (Branchinecta 
sandiegoensis); Final Rule

Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / 
Rules and Regulations

[[Page 63438]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF97


Endangered and Threatened Wildlife and Plants; Final 
Determination of Critical Habitat for the San Diego Fairy Shrimp 
(Branchinecta sandiegoensis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat pursuant to the Endangered Species Act of 1973, as 
amended (Act), for the San Diego fairy shrimp (Branchinecta 
sandiegonensis). The San Diego fairy shrimp is listed as an endangered 
species under the Act. A total of approximately 1,629 hectares (4,025 
acres) of land falls within the boundaries of designated critical 
habitat. Critical habitat for the San Diego fairy shrimp is located in 
San Diego and Orange Counties, California.
    Section 7 of the Act requires Federal agencies to ensure that 
actions they authorize, fund, or carry out are not likely to destroy or 
adversely modify designated critical habitat. As required by section 4 
of the Act, we considered economic and other relevant impacts prior to 
making a final decision on what areas to designate as critical habitat.

DATES: This final rule is effective November 22, 2000.

ADDRESSES: The complete administrative record for this rule is on file 
at the Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2730 Loker Avenue West, Carlsbad, California 92008. The 
complete file for this rule is available for public inspection, by 
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Ken Berg, Field Supervisor, Carlsbad 
Fish and Wildlife Office, at the above address (telephone 760/431-9440; 
facsimile 760/431-5902).

SUPPLEMENTARY INFORMATION:

Background

    The San Diego fairy shrimp (Branchinecta sandiegonensis) is a small 
aquatic crustacean (Order: Anostraca), restricted to vernal pools 
(pools that have water in them for only a portion of any given year) in 
coastal southern California and south to northwestern Baja California, 
Mexico. It is a habitat specialist found in small, shallow vernal pools 
and ephemeral (lasting a short time) basins that range in depth from 
approximately 5 to 30 centimeters (2 to 12 inches (in)) (Simovich and 
Fugate 1992; Hathaway and Simovich 1996). Water chemistry is also an 
important factor in determining fairy shrimp distribution (Belk 1977; 
Gonzales et al. 1996), hence, no individuals have been found in 
riverine or marine waters. All known localities are below 701 meters 
(m) (2,300 feet (ft)) and are within 64 kilometers (km) (40 miles (mi)) 
of the Pacific Ocean.
    San Diego fairy shrimp is one of several Branchinecta species that 
occur in southern California (Simovich and Fugate 1992). Other species 
of Branchinecta in southern California include the non-listed versatile 
fairy shrimp (B. lindahli) and the federally threatened vernal pool 
fairy shrimp (B. lynchi). Male San Diego fairy shrimp are distinguished 
from males of other species of Branchinecta by differences found at the 
distal (located far from the point of attachment) tip of the second 
antennae. Females are distinguishable from females of other species of 
Branchinecta by the shape and length of the brood sac, the length of 
the ovary, and by the presence of paired dorsolateral (located on the 
sides, toward the back) spines on five of the abdominal segments 
(Fugate 1993).
    Mature individuals lack a carapace (hard outer covering of the head 
and thorax) and have a delicate elongate body, large stalked compound 
eyes, and 11 pairs of swimming legs. They swim or glide gracefully 
upside down by means of complex wave-like beating movements of the legs 
that pass from front to back. Adult male San Diego fairy shrimp range 
in size from 9 to 16 millimeters (mm) (0.35 to 0.63 in); adult females 
are 8 to 14 mm (0.31 to 0.55 in.) long. The second pair of antennae in 
males are greatly enlarged and specialized for clasping the females 
during copulation, while the second pair of antennae in the females are 
cylindrical and elongate. The females carry their eggs in an oval or 
elongate ventral brood sac (Eriksen and Belk 1999). Little data is 
available for what fairy shrimp feed on, although algae, bacteria, 
protozoa, rotifers, and bits of organic matter are thought to be a 
large part of their diet (Pennak 1989; Eng et al. 1990).
    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 1996; 
Simovich and Hathaway 1997). 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 eggs,'' or ``cysts,'' are capable of withstanding 
temperature extremes 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 composed of the eggs 
from several years of breeding (Donald 1983; Simovich and Hathaway 
1997). Simovich and Hathaway (1997) found that vernal pools and 
ephemeral wetlands that support anostracans (i.e., San Diego fairy 
shrimp), and occur in areas with variable weather conditions or filling 
periods (such as southern California), may hatch only a fraction of the 
total cyst (organisms in a resting stage) bank in any given year. Thus, 
reproductive success is spread over several seasons.
    Vernal pools have a discontinuous occurrence in several regions of 
California (Keeler-Wolf et al. 1995), from as far north as the Modoc 
Plateau in Modoc County, south to the international border in San Diego 
County. 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; Thorne 1984; Zedler 1987; Simovich 
and Hathaway 1997). In years of high precipitation, overbank flooding 
from intermittent streams may augment the amount of water in some 
vernal pools (Hanes et al. 1990). Vernal pool studies conducted in the 
Sacramento Valley indicate that the contribution of subsurface or 
overland flows is significant only in years of high precipitation when 
pools are already saturated (Hanes and Stromberg 1996). Downward 
percolation of water in vernal pool basins is prevented by the presence 
of an impervious subsurface layer, such as a claypan, hardpan, or 
volcanic stratum (Holland 1976, 1988).
    Researchers have found that vernal pools located in San Diego 
County are associated with five soil series types, Huerheuero, 
Olivenhain, Placentia, Redding, and Stockpen (Bauder and McMillan 
1991). These soil types have a nearly impermeable surface or subsurface 
soil layer with a flat or gently sloping topography (Service 1998). Due 
to local topography and geology, the

[[Page 63439]]

pools are usually clustered into pool complexes (Bauder 1986; Holland 
and Jain 1977). 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.
    Vernal pool systems are often characterized by different landscape 
features including mima mound (miniature mounds) micro-topography, 
varied pool basin size and depth, and vernal swales (low tract of 
marshy land). Vernal pool complexes that support one to many distinct 
vernal pools are often interconnected by a shared watershed.
    San Diego County supports the largest number of remaining vernal 
pools occupied by the San Diego fairy shrimp. Scientists estimated 
that, historically, vernal pool soils covered approximately 208 
hectares (ha) (520 acres (ac)) of San Diego County (Bauder and McMillan 
1991). Based on available information at the time of listing, we 
estimate that fewer than 82 ha (202 ac) of occupied vernal pool habitat 
(based on vernal pool basins and not their associated watersheds) 
remain in the county, of which an estimated 70 percent occurs on 
military lands (Bauder and Weir 1991). Keeler-Wolf et al. (1995) 
concluded that the greatest recent losses of vernal pool habitat in San 
Diego County have occurred in Mira Mesa, Rancho Penasquitos, and Kearny 
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 between 1979 to 1990. 
Similar to San Diego County, vernal pool habitat was once extensive on 
the coastal plain of Los Angeles and Orange counties (Mattoni and 
Longcore 1997). Unfortunately, there has been a near-total loss of 
vernal pool habitat in these areas (Ferren and Pritchett 1988; Keeler-
Wolf et al. 1995).
    Urban and water development, flood control, highway and utility 
projects, as well as conversion of wildlands to agricultural use, have 
eliminated vernal pools and/or their watersheds in southern California 
(Jones and Stokes Associates 1987). Changes in hydrologic pattern, 
overgrazing, and off-road vehicle use also imperil this aquatic habitat 
and San Diego fairy shrimp. The flora and fauna in vernal pools or 
swales can change if the hydrologic regime is altered (Bauder 1986). 
Human activities that reduce the extent of the watershed or that alter 
runoff patterns (i.e., amounts and seasonal distribution of water) may 
eliminate San Diego fairy shrimp, reduce their population sizes or 
reproductive success, or shift the location of sites inhabited by this 
species. The California Department of Fish and Game's Natural Diversity 
Data Base ranks the vernal pool habitat type in priority class G1-S1, 
which denotes communities in the State of California that occur over 
fewer than 809 ha (2,000 ac) globally.

Previous Federal Action

    David Hogan, formerly of the San Diego Biodiversity Project in 
Julian, California; Dr. Denton Belk of Our Lady of the Lake University 
in San Antonio, Texas; and the Biodiversity Legal Foundation petitioned 
us to list the San Diego fairy shrimp as an endangered species, in a 
letter dated March 16, 1992. We received the petition on March 24, 
1992. On August 4, 1994, we 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 was the first Federal action on 
the San Diego fairy shrimp, and also constituted the 12-month petition 
finding, as required by section 4(b)(3)(B) of the Act. On February 3, 
1997, we published a final rule determining the San Diego fairy shrimp 
to be an endangered species (62 FR 4925).
    At the time of listing, we concluded that designation of critical 
habitat for the San Diego fairy shrimp was not prudent because such 
designation would not benefit the species. We were also concerned that 
critical habitat designation would likely increase the degree of threat 
from vandalism or other human-induced impacts. We were aware of several 
instances of apparently intentional habitat destruction that had 
occurred during the listing process. However, we have determined that 
the threats to this species, and its habitat, from specific instances 
of habitat destruction do not outweigh the broader educational and any 
potential regulatory and other possible benefits that designation of 
critical habitat would provide for this species. A designation of 
critical habitat will provide educational benefits by formally 
identifying those areas essential to the conservation of the species, 
and the areas likely to be the focus of our recovery efforts for the 
San Diego fairy shrimp. Therefore, we conclude that the benefits of 
designating critical habitat on lands essential for the conservation of 
the San Diego fairy shrimp will not increase incidences of vandalism 
above current levels for this species.
    On October 14, 1998, the Southwest Center for Biological Diversity 
filed a lawsuit in Federal District Court for the Southern District of 
California for our failure to designate critical habitat for the San 
Diego fairy shrimp. On September 16, 1999, the court ordered that ``On 
or before February 29, 2000, the Service shall submit for publication 
in the Federal Register, a proposal to withdraw the existing not 
prudent critical habitat determination together with a new proposed 
critical habitat determination for the San Diego fairy shrimp'' 
(Southwest Center for Biodiversity v. United States Department of the 
Interior et al., CV 98-1866) (S.D. Cal.).
    On March 8, 2000, we published a proposed rule to designate 
critical habitat for the San Diego fairy shrimp (65 FR 12181). We 
proposed critical habitat within approximately 14,771 ha (36,501 ac) 
within Orange and San Diego counties, California. The public comment 
period was open for 60 days. On August 21, 2000, we published a notice 
of availability for the draft economic analysis and reopening of the 
comment period for the proposed rule for the San Diego fairy shrimp 
critical habitat (65 FR 50672). The second comment period closed on 
September 5, 2000.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographic 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 considerations 
or protection and; (ii) specific areas outside the geographic 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 that are 
necessary to bring an endangered species or a threatened species to the 
point at which listing under the Act is no longer necessary.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Section 4 requires that we designate critical habitat at the time 
of listing and based on what we know at the time of the designation. 
When we designate critical habitat at the time of listing or

[[Page 63440]]

under short court-ordered deadlines, we will often not have sufficient 
information to identify all areas of critical habitat. We are required, 
nevertheless, to make a decision and thus must base our designations on 
what, at the time of designation, we know to be critical habitat.
    Within the geographic area occupied by the species, we will 
designate only areas currently known to be essential. Essential areas 
should already have the features and habitat characteristics that are 
necessary to sustain the species. We will not speculate about what 
areas might be found to be essential if better information became 
available, or what areas may become essential over time. If the 
information available at the time of designation does not show that an 
area provides essential life cycle needs of the species, then the area 
should not be included in the critical habitat designation. Within the 
geographic area occupied by the species, we will not designate areas 
that do not now have the primary constituent elements, as defined at 50 
CFR 424.12(b), that provide essential life cycle needs of the species.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species.'' (50 
CFR 424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (Vol. 
59, p. 34271), provides criteria, establishes procedures, and provides 
guidance to ensure that decisions made by the Service represent the 
best scientific and commercial data available. It requires Service 
biologists, to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas are critical 
habitat, a primary source of information should be the listing package 
for the species. Additional information may be obtained from a recovery 
plan, articles in peer-reviewed journals, conservation plans developed 
by states and counties, scientific status surveys and studies, and 
biological assessments or other unpublished materials (i.e. gray 
literature).
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under Section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the Section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    In determining areas that are essential to conserve the San Diego 
fairy shrimp, we used the best scientific and commercial data 
available. This included data from research and survey observations 
published in peer-reviewed articles, recovery criteria outlined in the 
Recovery Plan for Vernal Pools of Southern California (Recovery Plan) 
(Service 1998), regional Geographic Information System (GIS) vegetation 
and species coverages (including vegetation layers for Orange and San 
Diego Counties), data collected on the U.S. Marine Corps (Marine Corps) 
Air Station, Miramar (Miramar) and Marine Corps Station, Camp Pendleton 
(Camp Pendleton), data collected from reports submitted by biologists 
holding section 10(a)(1)(A) recovery permits, and comments received on 
the proposed rule and economic analysis.

Primary Constituent Elements

    In accordance with sections 3(5)(A)(i) and 4(b)(2) of the Act, and 
regulations at 50 CFR 424.12, in determining which areas to propose as 
critical habitat, we are required to base critical habitat 
determinations on the best scientific and commercial data available. We 
consider those physical and biological features (primary constituent 
elements) that are essential to the conservation of the species, and 
that may require special management considerations or protection. These 
include, but are not limited to: space for individual and population 
growth, and for normal behavior; food, water, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding and 
reproduction; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The primary constituent elements for the San Diego fairy shrimp are 
those habitat components that are essential for the primary biological 
needs of foraging, sheltering, reproduction, and dispersal. The primary 
constituent elements are found in those areas that support vernal pools 
or other ephemeral depressional wetlands. Primary constituent elements 
include the vernal pool basins and associated watersheds, and include, 
but are not limited to: small to large vernal pools with shallow to 
moderate depths that hold water for sufficient lengths of time 
necessary for San Diego fairy shrimp incubation and reproduction, but 
not necessarily every year; associated watershed(s) and hydrology for 
vernal pool basins and their related vernal pool complexes; ephemeral 
depressional wetlands, flat or gently sloping topography, and any soil 
type with a clay component and/or an impermeable surface or subsurface 
layer known to support vernal pool habitat. The associated watersheds 
are essential in maintaining the hydrology of vernal pools necessary to 
support San Diego fairy shrimp. The long-term conservation of vernal 
pools that are essential for the recovery of the San Diego fairy shrimp 
include the protection and management of their associated watersheds. 
Primary constituent elements or components thereof are found in all the 
areas designated for critical habitat.

Criteria Used To Identify Critical Habitat

    In an effort to map areas essential to the conservation of the 
species, we used data on known San Diego fairy shrimp locations, and 
those vernal pools and vernal pool complexes that were identified in 
the Recovery Plan as essential for the stabilization and 
reclassification of the species. The long-

[[Page 63441]]

term conservation of the San Diego fairy shirmp depends upon the 
protection and management of vernal pools within each management area 
to retain local genetic differentiation, reduce the risk of losing 
individual species or pool types, buffer environmental variation, and 
provide for the opportunity for re-establishment of new populations 
(Service 1998). We then evaluated those areas based on the hydrology, 
watershed and topographic features. Based on this evaluation, a 250 m 
(820 ft) Universal Transverse Mercator (UTM) (North American Datum 1927 
(NAD 27)) grid was overlaid on top of those vernal pool complexes and 
their associated essential watersheds. In those cases where occupied 
vernal pools were not identified in the Recovery Plan, we relied on 
recent scientific data to update the map coverage.
    In defining critical habitat boundaries, we made an effort to avoid 
developed areas, such as towns and other similar lands, that are 
unlikely to contribute to San Diego fairy shrimp conservation. However, 
the minimum mapping unit that we used did not allow us to exclude all 
developed areas, such as towns, or housing developments, or other lands 
unlikely to contain the primary constituent elements essential for 
conservation of the San Diego fairy shrimp. Existing features and 
structures within the boundaries of the mapped units, such as 
buildings, roads, aqueducts, railroads, airports, other paved areas, 
lawns, landscaped areas, and other urban areas, will not contain one or 
more of the primary constituent elements. Federal actions limited to 
those areas, therefore, would not trigger a section 7 consultation, 
unless they affect the species and/or primary constituent elements in 
adjacent critical habitat. Within the area designated as critical 
habitat, only an estimated 18 ha (45 ac) is of unknown occupancy. The 
remaining complexes of vernal pools and their associated watersheds 
within the designated critical habitat area are within the geographical 
area occupied by San Diego fairy shrimp.
    In summary, in determining areas that are essential to conserve San 
Diego fairy shrimp, we used the best scientific information available 
to us. The critical habitat areas described below constitute our best 
assessment of areas needed for the species' conservation and recovery.

Critical Habitat Designation

    The approximate area of critical habitat by county and land 
ownership is shown in Table 1. Critical habitat includes San Diego 
fairy shrimp habitat throughout the species' range in the United States 
(i.e., Orange and San Diego Counties, California). Lands designated are 
under private, State, and Federal ownership, with Federal lands 
including lands managed by the U.S. Department of Defense (DOD) and the 
Service. Lands designated as critical habitat have been divided into 
five Critical Habitat Units. A brief description of each unit and the 
reasons for designating it as critical habitat are presented below. The 
units are generally based on geographical location of the vernal pools, 
soil types, and local variation of topographic position (i.e., coastal 
mesas, inland valley).

 Table 1.--Approximate Area Encompassing Designated Critical Habitat in Hectares (ha) (Acres (ac)) By County and
                                                 Land Ownership
----------------------------------------------------------------------------------------------------------------
                                                          Federal land   Local/state
                         County                                \1\          land      Private land      Total
----------------------------------------------------------------------------------------------------------------
Orange..................................................           N/A         25 ha           N/A         25 ha
                                                                             (62 ac)                     (62 ac)
San Diego...............................................         88 ha        154 ha      1,362 ha      1,604 ha
                                                              (218 ac)      (379 ac)    (3,366 ac)    (3,963 ac)
    Total...............................................         88 ha        179 ha      1,362 ha      1,629 ha
                                                              (218 ac)      (441 ac)    (3,366 ac)   (4,025 ac)
----------------------------------------------------------------------------------------------------------------
\1\ Includes Department of Defense and U.S. Fish and Wildlife Service lands.

Unit 1: Orange County (Fairview Regional Park)

    Unit 1 encompasses approximately 25 ha (62 ac) in Orange County 
within the Los Angeles Basin-Orange Management Area as outlined in the 
Recovery Plan. The Fairview Regional Park vernal pool complex is 
occupied by the species and is designated as critical habitat. This 
unit provides the northern extent of this species' distribution and 
represents the historic distribution of coastal terrace vernal pools in 
this area. This northernmost unit is essential to the conservation of 
the San Diego fairy shrimp by maintaining the ecological distribution 
of this species, retaining the genetic diversity of this population, 
and to provide a buffer against catastrophic events.

Unit 2: San Diego: North Coastal Mesa

    Unit 2 encompasses approximately 79 ha (195 ac) in San Diego County 
within the San Diego. It includes a small portion of Camp Pendleton and 
an area within the City of Carlsbad as outlined in the Recovery Plan. 
The area designated on Camp Pendleton includes lands leased by the 
California State Department of Parks and Recreation and private 
interests from Camp Pendleton. Within the jurisdiction of the City of 
Carlsbad, one vernal pool complex located in the vicinity of Palomar 
Airport and one complex at Poinsettia Lane train station are designated 
as critical habitat. These vernal pool complexes represent vernal pool 
habitat associated with coastal terraces found north of the San 
Dieguito River. Given the rarity of San Diego fairy shrimp and the 
limited amount of vernal pool habitat, this unit is essential to the 
conservation of this species because of the broad array of vernal pool 
complexes that are represented. This unit supports recovery criteria by 
maintaining a diversity of vernal pools that support the genetic 
diversity and population stability of the San Diego fairy shrimp.

Unit 3: San Diego: Inland Valley

    Unit 3 encompasses 1,231 ha (3,042 ac) in San Diego County within 
the San Diego: Inland Valley Management Area as outlined in the 
Recovery Plan. Lands designated contain vernal pool complexes within 
the jurisdiction of the City of San Marcos and the community of Ramona. 
In the community of Ramona, one of the complexes is within the County's 
Ramona Airport boundaries. These vernal pool complexes are generally 
isolated from maritime influence (greater than 10 km (6 mi) from the 
coast) and are representative of vernal pools associated with alluvial 
or volcanic type soils. Approximately 18 ha (45 ac) of this unit are 
currently of unknown occupancy. This unit provides for the conservation 
of the San Diego fairy shrimp by protecting vernal pools within the

[[Page 63442]]

geographical range, maintaining the diversity of vernal pool habitats, 
and retaining the genetic diversity of these populations.

Unit 4: San Diego: Central Coastal Mesa

    Unit 4 encompasses 225 ha (556 ac) in San Diego County within the 
San Diego: Central Coastal Mesa Management Area as outlined in the 
Recovery Plan. Lands designated contain vernal pool complexes within 
the jurisdiction of the City of San Diego, State of California, 
Service, and private interests. These vernal pool complexes are 
associated with coastal terraces and mesas found south of the San 
Dieguito River to the San Diego Bay. This unit protects a diversity of 
vernal pools that support the San Diego fairy shrimp. Protection of 
this broad representation of vernal pools furthers the recovery of this 
species by maintaining genetic diversity and stabilizing populations.

Unit 5: San Diego: Southern Coastal Mesa

    Unit 5 encompasses 69 ha (170 ac) in San Diego County within the 
San Diego: Southern Coastal Mesa Management Area as outlined in the 
Recovery Plan. Lands designated include vernal pool complexes within 
the jurisdiction of the Service, City of San Diego, City of Chula 
Vista, County of San Diego, U.S. Immigration and Naturalization Service 
(INS), and private interests. These vernal pool complexes are 
associated with coastal mesas from the Sweetwater River south to the 
international border with Mexico. This southernmost unit is essential 
to the conservation of the San Diego fairy shrimp by maintaining the 
ecological distribution of this species, retaining the genetic 
diversity of this population, and to provide a buffer against 
catastrophic events.

Effects of Critical Habitat Designation

Section 7  Consultation

    Section 7(a) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to jeopardize the continued existence of a threatened or 
endangered species, or result in the destruction or adverse 
modification of critical habitat to the extent that the action 
appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. Individuals, organizations, 
States, local governments, and other non-Federal entities are affected 
by the designation of critical habitat only if their actions occur on 
Federal lands, require a Federal permit, license, or other 
authorization, or involve Federal funding. In 50 CFR 402.02, 
``jeopardize the continued existence'' (of a species) is defined as 
engaging in an activity likely to result in an appreciable reduction in 
the likelihood of survival and recovery of a listed species. 
``Destruction or adverse modification'' (of critical habitat) is 
defined as a direct or indirect alteration that appreciably diminishes 
the value of critical habitat for the survival and recovery of the 
listed species for which critical habitat was designated. Thus, the 
definitions of ``jeopardy'' to the species and ``adverse modification'' 
of critical habitat are nearly identical.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, 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 designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) requires Federal agencies 
to confer with us on any action that is likely to jeopardize the 
continued existence of a proposed species or result in destruction or 
adverse modification of proposed critical habitat. Conference reports 
provide conservation recommendations to assist the agency in 
eliminating conflicts that may be caused by the proposed action. The 
conservation recommendations in a conference report are advisory. If a 
species is listed or critical habitat is designated, section 7(a)(2) 
requires Federal agencies to ensure that activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of such a species or to destroy or adversely modify its critical 
habitat. If a Federal action may affect a listed species or its 
critical habitat, the responsible Federal agency (action agency) must 
enter into consultation with us. Through this consultation, we would 
ensure that the permitted actions do not adversely modify critical 
habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid resulting in the destruction or adverse 
modification of critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated, and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation with us on actions for which formal consultation has been 
completed, if those actions may affect designated critical habitat and 
they have retained discretionary involvement in the action. Further, 
some Federal agencies may have conferenced with us on proposed critical 
habitat. We may adopt the formal conference report as the biological 
opinion when critical habitat is designated, if no significant new 
information or changes in the action alter the content of the opinion 
(see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect the San Diego fairy 
shrimp or its critical habitat will require section 7 consultation. 
Activities on private or State lands requiring a permit from a Federal 
agency, such as a permit from the U.S. Army Corps of Engineers (Corps) 
under section 404 of the Clean Water Act, or some other Federal action, 
including funding (e.g., Federal Highway Administration, Federal 
Aviation Administration, or Federal Emergency Management Agency) will 
also continue to be subject to the section 7 consultation process. 
Federal actions not affecting listed species or critical habitat and 
actions on non-Federal lands that are not federally funded, authorized, 
or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat, or that may be affected by such designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and require that a section 
7 consultation be conducted include, but are not limited to:

[[Page 63443]]

    (1) Any activity that results in discharge of dredged or fill 
material, excavation, or mechanized land clearing of ephemeral and/or 
vernal pool basins (e.g., road and fence construction and maintenance, 
right-of-way designation, airport improvement activities, and 
regulation of agricultural activities);
    (2) Any activity that alters the watershed, water quality, or water 
quantity to an extent that water quality becomes unsuitable to support 
San Diego fairy shrimp, or any activity that significantly affects the 
natural hydrologic function of the vernal pool system; and
    (3) Activities that could lead to the introduction of exotic 
species into San Diego fairy shrimp habitat.
    Activities that may destroy or adversely modify critical habitat 
include those that alter the primary constituent elements to an extent 
that the value of critical habitat for both the survival and recovery 
of the San Diego fairy shrimp is appreciably reduced. We note that such 
activities may also jeopardize the continued existence of the species.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the value of critical 
habitat for the survival and recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would almost always result in jeopardy to the species 
concerned, particularly when the area of the proposed action is 
occupied by the species concerned. In those cases, critical habitat 
provides little additional protection to a species, and the 
ramifications of its designation are few or none. However, if occupied 
habitat becomes unoccupied in the future, there is a potential benefit 
from critical habitat in such areas.
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat, 
contact the Field Supervisor, Carlsbad Fish and Wildlife Office (see 
ADDRESSES section). Requests for copies of the regulations on listed 
wildlife, and inquiries about prohibitions and permits may be addressed 
to the U.S. Fish and Wildlife Service, Branch of Endangered Species, 
911 N.E. 11th Ave, Portland, Oregon 97232 (telephone 503/231-2063; 
facsimile 503/231-6243).
    All lands designated as critical habitat are within the 
geographical area occupied by the species and are likely to be used by 
the San Diego fairy shrimp. Federal agencies already consult with us on 
activities in areas currently occupied by the species, or if the 
species may be affected by the action to ensure that their actions do 
not jeopardize the continued existence of the species. Thus, we do not 
anticipate additional regulatory protection will result from critical 
habitat designation.

Exclusions Under Section 3(5)(A) Definition

    Special management or protection is a term that originates in the 
definition of critical habitat in section 3 of the Act that refers to 
areas within the current range of the species. For areas in the current 
range of the species, we first determine whether the area contains the 
physical and biological features essential to the conservation of the 
species and the area has or needs special management or protection. 
Additional special management is not required if adequate management or 
protection is already in place. Adequate special management or 
protection is provided by a legally operative plan/agreement that 
addresses the maintenance and improvement of the primary constituent 
elements important to the species and manages for the long-term 
conservation of the species. We use the following three criteria to 
determine if a plan provides adequate special management or protection: 
(1) A current plan/agreement must be complete and provide sufficient 
conservation benefit to the species, (2) the plan must provide 
assurances that the conservation management strategies will be 
implemented, and (3) the plan must provide assurances that the 
conservation management strategies will be effective, i.e., provide for 
periodic monitoring and revisions as necessary. If all of these 
criteria are met, then the lands covered under the plan would no longer 
meet the definition of critical habitat.
    The Sikes Act Improvements Act of 1997 (Sikes Act) requires each 
military installation that includes land and water suitable for the 
conservation and management of natural resources to complete, by 
November 17, 2001, an Integrated Natural Resources Management Plan 
(INRMP). An INRMP integrates implementation of the military mission of 
the installation with stewardship of the natural resources found there. 
Each INRMP includes an assessment of the ecological needs on the 
installation, including needs to provide for the conservation of listed 
species; a statement of goals and priorities; a detailed description of 
management actions to be implemented to provide for these ecological 
needs; and a monitoring and adaptive management plan. We consult with 
the military on the development and implementation of INRMPs for 
installations with listed species. We believe bases that have completed 
and approved INRMPs that address the needs of the species generally do 
not meet the definition of critical habitat discussed above, as they 
require no additional special management or protection.
    We evaluated Department of Defense (DOD) Integrated Natural 
Resource Management Plans (INRMPs) for DOD land that was within the 
proposed critical habitat to determine whether any INRMPs met the 
special management criteria. To date, Marine Corps Air Base, Miramar is 
the only DOD installation that has completed a final INRMP that 
provides for sufficient conservation management and protection for the 
San Diego fairy shrimp. We reviewed this plan and determined that it 
addresses and meets the three criteria. Therefore, lands on Marine 
Corps Air Base, Miramar no longer meet the definition of critical 
habitat, and they have been excluded from the final designation of 
critical habitat for the San Diego fairy shrimp.

Exclusions Under Section 4(b)(2)

    Subsection 4(b)(2) of the Act allows us to exclude areas from 
critical habitat designation where the benefits of exclusion outweigh 
the benefits of designation, provided the exclusion will not result in 
the extinction of the species. For the following reasons, we believe 
that in most instances the benefits of excluding HCPs from critical 
habitat designations will outweigh the benefits of including them.
(1) Benefits of Inclusion
    The benefits of including HCP lands in critical habitat are 
normally small. The principal benefit of any designated critical 
habitat is that activities in such habitat that may affect it require 
consultation under section 7 of the Act. Such consultation would ensure 
that

[[Page 63444]]

adequate protection is provided to avoid adverse modification of 
critical habitat. Where HCPs are in place, our experience indicates 
that this benefit is small or non-existent. Currently approved and 
permitted HCPs are already designed to ensure the long-term survival of 
covered species within the plan area. Where we have an approved HCP, 
lands that we ordinarily would define as critical habitat for the 
covered species will normally be protected in reserves and other 
conservation lands by the terms of the HCPs and their implementation 
agreements. These HCPs and implementation agreements include management 
measures and protections for conservation lands that are crafted to 
protect, restore, and enhance their value as habitat for covered 
species.
    In addition, an HCP application must itself be consulted upon. 
While this consultation will not look specifically at the issue of 
adverse modification of critical habitat, it will look at the very 
similar concept of jeopardy to the listed species in the plan area. 
Since HCPs, particularly large regional HCPs, address land use within 
the plan boundaries, habitat issues within the plan boundaries will 
have been thoroughly addressed in the HCP and the consultation on the 
HCP. Our experience is also that, under most circumstances, 
consultations under the jeopardy standard will reach the same result as 
consultations under the adverse modification standard. Implementing 
regulations (50 CFR Part 402) define ``jeopardize the continued 
existence of'' and ``destruction or adverse modification of'' in 
virtually identical terms. Jeopardize the continued existence of means 
to engage in an action ``that reasonably would be expected * * * to 
reduce appreciably the likelihood of both the survival and recovery of 
a listed species.'' Destruction or adverse modification means an 
``alteration that appreciably diminishes the value of critical habitat 
for both the survival and recovery of a listed species.'' Common to 
both definitions is an appreciable detrimental effect on both survival 
and recovery of a listed species, in the case of critical habitat by 
reducing the value of the habitat so designated. Thus, actions 
satisfying the standard for adverse modification are nearly always 
found to also jeopardize the species concerned, and the existence of a 
critical habitat designation does not materially affect the outcome of 
consultation. Additional measures to protect the habitat from adverse 
modification are not likely to be required.
    Further, HCPs typically provide for greater conservation benefits 
to a covered species than section 7 consultations because HCPs assure 
the long term protection and management of a covered species and its 
habitat, and funding for such management through the standards found in 
the 5-Point Policy for HCPs (64 FR 35242) and the HCP No Surprises 
regulation (63 FR 8859). Such assurances are typically not provided by 
section 7 consultations which, in contrast to HCPs, often do not commit 
the project proponent to long term special management or protections. 
Thus, a consultation typically does not accord the lands it covers the 
extensive benefits an HCP provides.
    The development and implementation of HCPs provide other important 
conservation benefits, including the development of biological 
information to guide conservation efforts and assist in species 
recovery and the creation of innovative solutions to conserve species 
while allowing for development. The educational benefits of critical 
habitat, including informing the public of areas that are important for 
the long-term survival and conservation of the species, are essentially 
the same as those that would occur from the public notice and comment 
procedures required to establish an HCP, as well as the public 
participation that occurs in the development of many regional HCPs. For 
these reasons, then, we believe that designation of critical habitat 
has little benefit in areas covered by HCPs.
(2) Benefits of Exclusion
    The benefits of excluding HCPs from being designated as critical 
habitat may be more significant. During two public comment periods on 
our critical habitat policy, we received several comments about the 
additional regulatory and economic burden of designating critical 
habitat. These include the need for additional consultation with the 
Service and the need for additional surveys and information gathering 
to complete these consultations. HCP applicants have also stated that 
they are concerned that third parties may challenge HCPs on the basis 
that they result in adverse modification or destruction of critical 
habitat, should critical habitat be designated within the HCP 
boundaries.
    The benefits of excluding HCPs include relieving landowners, 
communities and counties of any additional minor regulatory review that 
might be imposed by critical habitat. Many HCPs, particularly large 
regional HCPs, take many years to develop and, upon completion, become 
regional conservation plans that are consistent with the recovery of 
covered species. Many of these regional plans benefit many species, 
both listed and unlisted. Imposing an additional regulatory review 
after HCP completion may jeopardize conservation efforts and 
partnerships in many areas and could be viewed as a disincentive to 
those developing HCPs. Excluding HCPs provides us with an opportunity 
to streamline regulatory compliance and confirms regulatory assurances 
for HCP participants.
    A related benefit of excluding HCPs is that it would encourage the 
continued development of partnerships with HCP participants, including 
states, local governments, conservation organizations, and private 
landowners, that together can implement conservation actions we would 
be unable to accomplish alone. By excluding areas covered by HCPs from 
critical habitat designation, we preserve these partnerships, and, we 
believe, set the stage for more effective conservation actions in the 
future.
    In general, then, we believe the benefits of critical habitat 
designation to be small in areas covered by approved HCPs. We also 
believe that the benefits of excluding HCPs from designation are 
significant. Weighing the small benefits of inclusion against the 
benefits of exclusion, including the benefits of relieving property 
owners of an additional layer of approvals and regulation, together 
with the encouragement of conservation partnerships, would generally 
result in HCPs being excluded from critical habitat designation under 
Section 4(b)(2) of the Act.
    Not all HCPs are alike with regard to species coverage and design. 
Within this general analytical framework, we need to evaluate completed 
and legally operative HCPs in the range of the San Diego fairy shrimp 
to determine whether the benefits of excluding these particular areas 
outweigh the benefits of including them.
    Several habitat conservation planning efforts have been completed 
within the range of the San Diego fairy shrimp. Principal among these 
is the San Diego Multiple Species Conservation Program (MSCP) and its 
subarea plans. The MSCP provides conservation measures for the San 
Diego fairy shrimp even though take authorization, should any be 
needed, is designed to come from a subsequent permitting process 
(typically through a section 7 consultation with the Corps). The MSCP 
will result in the avoidance of the majority of fairy shrimp habitat 
within the planning area. The MSCP provides that fairy shrimp habitat 
should be completely avoided to the maximum extent practicable

[[Page 63445]]

pursuant to the Clean Water Act Section 404(b)(1) guidelines. 
Unavoidable impacts to vernal pool habitats are to be minimized and 
mitigated to achieve no net loss of wetland function and value and to 
provide additional protective measures. Moreover, the MSCP provides for 
adaptive management and monitoring to ensure the long-term viability of 
the vernal pool habitat. The benefits of excluding lands covered by 
these HCPs would be significant in preserving positive relationships 
with our conservation partners, lessening potential additional 
regulatory review and potential economic burdens, reinforcing the 
regulatory assurances provided for in the implementation agreements for 
the approved HCPs, and providing for more established and cooperative 
partnerships for future conservation efforts. In the economic analysis 
completed for the San Diego fairy shrimp critical habitat designation, 
we concluded that some development companies may be affected by any 
modifications to projects or incremental delays in the implementation 
of projects due to consultations that occur as a result of critical 
habitat designation for the San Diego fairy shrimp. In addition, we 
concluded that landowners may incur costs to determine whether their 
land contains the primary constituent elements for the San Diego fairy 
shrimp, and may experience temporary changes in property values as 
markets respond to the uncertainty associated with critical habitat 
designation. Thus, we determined that the benefits of excluding 
critical habitat within the San Diego MSCP outweigh the benefits of 
designation. Consequently, these lands have not been designated as 
critical habitat for the San Diego fairy shrimp.
    In summary, the benefits of including the MSCP in critical habitat 
for the San Diego fairy shrimp include increased educational benefits 
and minor additional management protections and measures. The benefits 
of excluding MSCP from being designated as critical habitat for the San 
Diego fairy shrimp include the additional conservation measures for the 
San Diego fairy shrimp and other listed species, preservation of 
partnerships that may lead to future conservation, and the avoidance of 
the minor regulatory and economic burdens associated with the 
designation of critical habitat. The benefits of excluding these areas 
from critical habitat designation outweigh the benefits of including 
these areas. Furthermore, we have determined that these exclusions will 
not result in the extinction of the species. We have already completed 
section 7 consultation on the impacts of these HCPs on the species. We 
have determined that they will not jeopardize the continued existence 
of the species, meaning that they will not appreciably reduce the 
survival and recovery of the species.
    Another HCP effort is the Natural Community Conservation Planning 
(NCCP) program in Orange and San Diego Counties. The NCCP/HCP effort in 
Orange County Central/Coastal is designed to provide the same level of 
protection for San Diego fairy shrimp as the San Diego MSCP. However, 
unlike the San Diego MSCP, the vernal pool complex at Fairview Regional 
Park within Orange County occurs within a city which is not a 
participating jurisdiction under the plan. The benefits from 
designating this area as critical habitat are not outweighed by the 
benefits of the HCP. Therefore, the Fairview Regional Park vernal pool 
complex is included as critical habitat.
    We anticipate that future HCPs in the range of the San Diego fairy 
shrimp will include it as a covered species and provide for its long-
term conservation. We expect that HCPs undertaken by local 
jurisdictions (e.g., counties, cities) and other parties will identify, 
protect, and provide appropriate management for those specific lands 
within the boundaries of the plans that are essential for the long-term 
conservation of the species. Section 10(a)(1)(B) of the Act states that 
HCPs must meet issuance criteria, including minimizing and mitigation 
for any take of the listed species covered by the permit to the maximum 
extent practicable, and that the taking must not appreciably reduce the 
likelihood of the survival and recovery of the species in the wild. We 
fully expect that our future analysis of HCPs and section 10(a)(1)(B) 
permits under section 7 will show that covered activities carried out 
in accordance with the provisions of the HCPs and section 10(a)(1)(B) 
permits will not result in the destruction or adverse modification of 
critical habitat designated for the San Diego fairy shrimp.
    In the event that future HCPs covering the San Diego fairy shrimp 
are developed within the boundaries of designated critical habitat, we 
will work with applicants to ensure that the HCPs provide for 
protection and management of habitat areas essential for the 
conservation of this species. This will be accomplished by either 
directing development and habitat modification to nonessential areas, 
or appropriately modifying activities within essential habitat areas so 
that such activities will not adversely modify the primary constituent 
elements. The HCP development process provides an opportunity for more 
intensive data collection and analysis regarding the use of particular 
habitat areas by the San Diego fairy shrimp. The process also enables 
us to conduct detailed evaluations of the importance of such lands to 
the long-term survival of the species in the context of constructing a 
biologically configured system of interlinked habitat blocks.
    We will provide technical assistance and work closely with 
applicants throughout the development of future HCPs to identify lands 
essential for the long-term conservation of the San Diego fairy shrimp 
and appropriate management for those lands. The take minimization and 
mitigation measures provided under these HCPs are expected to protect 
the essential habitat lands designated as critical habitat in this 
rule. If an HCP that addresses the San Diego fairy shrimp as a covered 
species is ultimately approved, we will reassess the critical habitat 
boundaries in light of the HCP. We will seek to undertake this review 
when the HCP is approved, but funding constraints may influence the 
timing of such a review.
    In contrast to Marine Corps Air Base Miramar, Marine Corps Base 
Camp Pendleton (Camp Pendleton) has not yet completed their INRMP. Camp 
Pendleton has several substantial vernal pool complexes that support 
the San Diego fairy shrimp. In light of these factors, we proposed 
4,902 ha (12,114 ac) of the approximately 50,000 ha (125,000 acre) base 
as critical habitat for the San Diego fairy shrimp. Out of the 46 
training or joint use areas on Camp Pendleton, the proposal included 
all of five such areas, which were concentrated on the coastal portion 
of the Base. In addition, the proposal included habitat found elsewhere 
on the base.
    The INRMP for Camp Pendleton will be completed by the statutory 
deadline of November 17, 2001. We will consult with the Marines under 
section 7 of the Act on the development and implementation of the 
INRMP. We fully expect that, once the INRMP is completed and approved, 
areas of the base included in the proposed critical habitat designation 
will not meet the definition of critical habitat, as they will require 
no additional special management or protection.
    Today, as the INRMP has not yet been completed and approved, these 
lands on the base meet the definition of critical habitat. 
Nevertheless, we have determined that it is appropriate to exclude Camp 
Pendleton from this critical habitat designation under section 4(b)(2). 
The main benefit of this

[[Page 63446]]

exclusion is ensuring that the mission-critical military training 
activities can continue without interruption at Camp Pendleton while 
the INRMP is being completed. On March 30, 2000, at the request of the 
Marines, we initiated formal consultation with Camp Pendleton on their 
uplands activities. These activities include military training, 
maintenance, fire management, real estate, and recreation programs. 
Upon completion, this consultation will address the 93 percent of the 
Base not included in our 1995 opinion concerning the Base's 
programmatic conservation plan for riparian and estuarine/beach 
ecosystems (U.S. Fish and Wildlife Service 1995). Because of the 
immense complexity of dealing with a multitude of hard-to-define upland 
activities and numerous federally listed plants and animals, we expect 
completion of the consultation and issuance of our biological opinion 
to take several months to a year.
    The proposed critical habitat designation included about 4,902 ha 
(12,114 ac), or about 10 percent of the Base. If critical habitat is 
designated on Camp Pendleton for the San Diego fairy shrimp, the 
Marines would be compelled by their interpretation of the Endangered 
Species Act to significantly curtail necessary training within the area 
designated as critical habitat, to the detriment of mission-critical 
training capability, until the consultation is concluded, up to a year 
from now. As a result, the Base's utility as a Marine training site 
would be limited. The Marines have no alternative site suitable for the 
kinds of training that occur on the Base.
    In contrast, the benefits of designating critical habitat on the 
base now are small. The primary benefit of designation is the 
prohibition on destruction or adverse modification of critical habitat 
under section 7 of the Act. However, we believe that section 7 
consultation on any proposed action on the base that would result in an 
adverse modification conclusion would also result in a jeopardy 
conclusion, and we are now engaged in formal consultation with the 
Marines on their activities in vernal pool habitat on the Camp 
Pendleton. In addition, the Marines have a statutory obligation under 
the Sikes Act to complete an INRMP for Camp Pendleton about 13 months 
from now; as noted above, we expect that, when completed and adopted, 
this INRMP will provide equal or greater protection to San Diego fairy 
shrimp habitat on the base than a critical habitat designation.
    We conclude that the benefits of excluding Camp Pendleton exceed 
the benefits of including the base in the critical habitat designation; 
further, we have determined that excluding the base will not result in 
the extinction of the San Diego fairy shrimp, as sufficient vernal 
pools remain within the final critical habitat designation and sections 
7(a)(2) and 9 of the Act still apply to the activities affecting San 
Diego fairy shrimp on Camp Pendleton, This exclusion does not include 
that part of Camp Pendleton leased to the State of California and 
included within San Onofre State Park (including San Mateo Park). 
Because these lands are used minimally, if at all, by the Marines for 
training, the 16 ha (40 ac) of lands proposed within the state park are 
retained in the final designation.
    Should additional information become available that changes our 
analysis of the benefits of excluding any of these (or other) areas 
compared to the benefits of including them in the critical habitat 
designation, we may revise this final designation accordingly. 
Similarly, if new information indicates any of these areas should not 
be included in the critical habitat designation because they no longer 
meet the definition of critical habitat, we may revise this final 
critical habitat designation. If, consistent with available funding and 
program priorities, we elect to revise this designation, we will do so 
through a subsequent rulemaking.

Summary of Comments and Recommendations

    In the March 8, 2000, proposed rule (65 FR 12181), we requested all 
interested parties to submit comments on the specifics of the proposal 
including information, policy, treatment of HCPs, and proposed critical 
habitat boundaries. The first comment period closed on May 8, 2000. The 
comment period was reopened from August 21 to September 5, 2000, (65 FR 
50672), to allow for additional comments on the proposed rule and 
comments on the draft economic analysis of the proposed critical 
habitat. Due to an error in the date of the deadline for public comment 
that was identified in the Federal Register notice (65 FR 50672), we 
published a correction on August 25, 2000 (65 FR 51903). We entered 
comments received from May 8 to August 21, 2000, into the 
administrative record for the second comment period. Comments received 
following the close of the second comment period (a total of 3) were 
entered into the administrative record and marked as late. These later 
comments were reviewed to determine if they raised any new or 
substantial issues that had not been raised by any earlier comment. 
None of the late comments raised a new or substantial issue that had 
not been raised earlier.
    We contacted all appropriate State and Federal agencies, county 
governments, elected officials, and other interested parties and 
invited them to comment. In addition, we published newspaper notices 
inviting public comment in the following newspapers in southern 
California: Orange County Register, North County Times, and the San 
Diego Union-Tribune. These notices were published on March 8 and 9, 
2000.
    We requested four biologists familiar with the San Diego fairy 
shrimp and the conservation of vernal pools to peer review the proposed 
critical habitat designation. Two of the peer reviewers submitted 
comments on the proposed critical habitat designation, providing 
updated biological information, critical review, and editorial 
comments. We addressed their comments in the responses below, or 
incorporated them into other parts of this final rule.
    We received a total of 31 comments during the 2 comment periods, 
from 2 Federal agencies, 3 State agencies, 5 local agencies, and 15 
private organizations or individuals. Three commenters submitted 
comments more than once. We reviewed all comments received for 
substantive issues and new data regarding the San Diego fairy shrimp 
and critical habitat. We grouped comments of a similar nature into four 
general issues relating specifically to the proposed critical habitat 
determination and draft economic analysis on the proposed 
determination. These are addressed in the following summary.

Issue 1: Biological Justification and Methodology

    (1) Comment: The broad or landscape scale of the proposed critical 
habitat includes areas that do not contain the primary constituent 
elements for the San Diego fairy shrimp. The statements in the proposed 
rule that only areas containing the primary constituent elements for 
the San Diego fairy shrimp are being proposed as critical habitat is 
confusing and does not allow for a defined boundary. Several commenters 
questioned the biological justification for proposing critical habitat 
for the San Diego fairy shrimp using such a landscape scale approach 
when specific, detailed information is available. Many commenters felt 
the mapping should be more detailed, and the critical habitat be more 
precisely defined, excluding areas that obviously are not San Diego 
fairy shrimp critical habitat. Some commenters criticized our use of a 
1-km UTM grid as flawed because it included too much area unlikely to 
contain the

[[Page 63447]]

primary constituent elements, and that the Economic Analysis was also 
flawed because it was based on these large units, and was not in 
keeping with the Act's requirement to ``narrowly define critical 
habitat.'' Additionally, one commenter stated that the designation was 
not based on the best scientific and commercial data available, and 
that the Service has not adequately provided notice of the precise 
outlined boundaries of critical habitat.
    Our Response: We are required to describe critical habitat (50 CFR 
424.12(c)) with specific limits using reference points and lines as 
found on standard topographic maps of the area. Due to the time 
constraints imposed by the court, and the absence of detailed GIS 
coverages during the preparation of the proposed determination, we used 
a 1 km (0.6 mi) UTM grid system to describe the boundaries of critical 
habitat units. Because of this large mapping scale, some areas not 
essential for the conservation of the San Diego fairy shrimp were 
included in the boundaries of proposed critical habitat.
    In the preparation of the final determination, we had available for 
use, more detailed GIS coverages that allowed us to reduce our minimum 
mapping unit from a 1 km (0.6 mi) UTM grid square to a 250 m (820 ft) 
UTM grid square. This allowed for the exclusion of many areas not 
essential to the conservation of the San Diego fairy shrimp and 
resulted in the drawing of more refined critical habitat boundaries. 
Consequently, by using a finer scale grid, the total acreage of lands 
designated as critical habitat decreased. The lands within the mapped 
boundaries are considered critical habitat for the San Diego fairy 
shrimp.
    (2) Comment: Several commenters voiced concern that their property 
was within proposed critical habitat boundaries even though it does not 
contain San Diego fairy shrimp habitat.
    Our Response: We recognize that not all parcels of land within 
designated critical habitat contain the habitat components essential to 
San Diego fairy shrimp conservation. While we have refined the critical 
habitat maps since the proposal, even with the 250 m (820 ft) UTM grid 
square, the minimum mapping unit that we used in defining critical 
habitat boundaries for the San Diego fairy shrimp did not allow us to 
exclude all developed areas such as towns, housing developments, or 
other developed lands unlikely to provide habitat for the San Diego 
fairy shrimp. However, these areas are within designated critical 
habitat since they are within the defined boundaries of the 
designation. Because they do not contain habitat for the species, we 
believe that activities that occur on them will not affect critical 
habitat. Therefore, these activities would not trigger a section 7 
consultation.
    (3) Comment: The final rule listing the San Diego fairy shrimp (62 
FR 4925) as endangered stated that the species occupied only 81 ha (200 
ac) of vernal pool habitat and is not a widespread species. The 
proposed rule for designating critical habitat (65 FR 12181) proposed 
over 14,771 ha (36,501 ac) as occupied critical habitat. How is this 
possible?
    Our Response: The 81 ha (200 ac) estimate refers to the vernal pool 
basins occupied by the San Diego fairy shrimp at the time of listing in 
1997. Since the listing of the San Diego fairy shrimp, additional 
surveys and scientific studies have increased our understanding of the 
distribution and habitat needs of this species and the amount of vernal 
pool habitats. Additionally, the 1 km (0.6 mi) grid size used in the 
proposed rule to define critical habitat also included some 
nonessential portions of the watersheds of the vernal pools. Thus, the 
14,771 ha (36,501 ac) identified in the critical habitat proposal 
included both the vernal pool basins and their associated watersheds. 
We refined our grid size (250 m (820 ft)) and removed nonessential 
areas (10,171 ha (25,133 ac)), which reduced the amount of land 
designated as critical habitat for the final rule. The areas designated 
as critical habitat include both vernal pool basins and their 
associated watersheds. The associated watersheds are essential in 
maintaining the hydrology of vernal pools necessary to support San 
Diego fairy shrimp.
    (4) Comment: ``Incidentally-created habitat'' should not be 
considered critical habitat, and take of the species in ``incidentally-
created habitats'' should not be considered to ``jeopardize'' the 
species.
    Our Response: ``Incidentally created habitats'' for the San Diego 
fairy shrimp are generally associated with existing vernal pools, 
vernal pools complexes, and ephemeral ponds and depressions. We define 
these habitats as ``highly disturbed'' or ``modified'' habitats as 
opposed to incidentally created, as often these areas supported natural 
vernal pools in the past. All of the designated critical habitat areas 
are considered essential to the conservation of the San Diego fairy 
shrimp as described in the Recovery Plan for Vernal Pools of Southern 
California. Therefore, these vernal pools, including any ``incidentally 
created habitats,'' have been designated as critical habitat. The take 
prohibitions under section 9 of the Act do not differentiate between 
natural and ``incidentally created habitats.''

Issue 2: Policy and Regulations

    (5) Comment: Many commenters were supportive of the policy that 
lands covered by approved and future HCPs that provide take 
authorization for the San Diego fairy shrimp be excluded from critical 
habitat. Several commenters suggested that designated critical habitat 
be removed concurrently with approval of the HCP because they are 
concerned that additional consultations would be required as a result 
of critical habitat. Some commenters also asked if completed and 
Service-approved subarea plans would be exempted similar to HCPs. Many 
commenters questioned whether the MSCP would provide for adequate 
protection of fairy shrimp in lieu of critical habitat, when it has not 
done so in the past (without critical habitat).
    Our Response: We recognize that critical habitat is only one of 
many conservation tools for federally listed species. HCPs are one of 
the most important tools for reconciling land use with the conservation 
of listed species on non-Federal lands. Section 4(b)(2) allows us to 
exclude from critical habitat designation areas where the benefits of 
exclusion outweigh the benefits of designation, provided the exclusion 
will not result in the extinction of the species. We believe that in 
most instances, the benefits of excluding HCPs from critical habitat 
designations will outweigh the benefits of including them. For this 
designation, we find that the benefits of exclusion outweigh the 
benefits of inclusion for the MSCP HCP issued for the San Diego fairy 
shrimp. However, lands without completed HCPs have been included as 
critical habitat. We expect to analyze the specific benefits in each 
particular critical habitat designation because not all HCPs are alike 
with regard to species coverage and design.
    We anticipate that future HCPs in the range of the San Diego fairy 
shrimp will include it as a covered species and provide for its long-
term conservation. We expect that HCPs undertaken by local 
jurisdictions (e.g., counties, cities) and other parties will identify, 
protect, and provide appropriate management for those specific lands 
within the boundaries of the plans that are essential for the long-term 
conservation of the species. Section 10(a)(1)(B) of the Act states that 
HCPs must meet issuance criteria, including minimizing and mitigating 
any take of the listed species covered by the permit to the maximum 
extent practicable, and that the taking will not appreciably reduce the

[[Page 63448]]

likelihood of the survival and recovery of the species in the wild. We 
fully expect that our analyses of future HCPs and section 10(a)(1)(B) 
permits under section 7 will show that covered activities carried out 
in accordance with the provisions of the HCPs and Section 10(a)(1)(B) 
permits will not result in the destruction or adverse modification of 
critical habitat designated for the San Diego fairy shrimp.
    In the event that future HCPs covering the San Diego fairy shrimp 
are developed within the boundaries of designated critical habitat, we 
will work with applicants to ensure that the HCPs provide for 
protection and management of habitat areas essential for the 
conservation of the San Diego fairy shrimp by either directing 
development and habitat modification to nonessential areas, or 
appropriately restricting activities within essential habitat areas so 
that such activities will not result in the destruction or adverse 
modification of the primary constituent elements. The HCP development 
process provides an opportunity for more intensive data collection and 
analysis regarding the use of particular habitat areas by the San Diego 
fairy shrimp. The process also enables us to conduct detailed 
evaluations of the importance of such lands to the long-term survival 
of the species in the context of constructing a biologically configured 
system of interlinked habitat blocks. We are continuing to work with 
the cities of Chula Vista, Carlsbad, San Marcos, and other 
jurisdictions to insure that their subarea plans provide for the long-
term conservation of the San Diego fairy shrimp.
    We will provide technical assistance and work closely with 
applicants throughout the development of future HCPs to identify lands 
essential for the long-term conservation of the San Diego fairy shrimp 
and appropriate management for those lands. The take minimization and 
mitigation measures provided under these HCPs are expected to protect 
the essential habitat lands designated as critical habitat in this 
rule. If an HCP that addresses the San Diego fairy shrimp as a covered 
species is ultimately approved, we will reassess the critical habitat 
boundaries in light of the HCP. We will seek to undertake this review 
when the HCP is approved, but funding constraints may influence the 
timing of such a review.
    (6) Comment: It is illegal and unscientific to withdraw critical 
habitat designation from land covered by a currently approved HCP, or 
to withdraw it from future HCPs when they are approved because these 
HCPs do not provide adequate protection for the San Diego fairy shrimp. 
Critical habitat protects land essential for conservation, which is a 
higher standard than an HCP permit or section 7 consultation, which 
only assure that jeopardy would not occur.
    Our Response: Section 4(b)(2) of the Act provides for a balancing 
test in designating critical habitat. We may exclude HCPs from critical 
habitat if the benefits of excluding them outweigh the benefits of 
including them in the designation. See our response to Comment 5 for a 
discussion of conservation measures afforded covered species under 
HCPs.
    (7) Comment: An Environmental Impact Statement as defined under 
NEPA should be written to address the potential significant impacts 
from the proposed designation of San Diego fairy shrimp critical 
habitat.
    Our Response: We determined that we do not need to prepare an 
Environmental Assessment and/or an Environmental Impact Statement as 
defined under the authority of the National Environmental Policy Act of 
1969, in connection with regulations adopted pursuant to section 4(a) 
of the Act. We published a notice outlining our reason for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244).
    (8) Comment: The broad scale of the proposed critical habitat maps 
is not specific enough to allow for reasonable public comment therefore 
violating the Act and 50 CFR Sec. 424.12(c).
    Our Response: We identified specific areas referenced by UTM 
coordinates, which are found on standard topographic maps. We also made 
available a public viewing room where the proposed critical habitat 
units superimposed on 7.5 minute topographic maps and spot imagery 
could be inspected. Further, we distributed GIS coverages and maps of 
the proposed critical habitat to everyone who requested them. We 
believe the information made available to the public was sufficiently 
detailed to allow for informed public comment. This final rule contains 
the legal descriptions of areas designated as critical habitat required 
pursuant to 50 CFR Sec. 424.12(c). If additional clarification is 
necessary, contact the Carlsbad Fish and Wildlife Office (see ADDRESSES 
section).
    (9) Comment: The designation of critical habitat would place an 
additional burden on landowners above and beyond what the listing of 
the species would require. The number of section 7 consultations will 
increase; large areas where no San Diego fairy shrimp are known to 
occur will now be subject to section 7 consultation. Many Federal 
agencies have been making a ``no effect'' determination within 
unoccupied suitable habitat. Now, with critical habitat there will be 
``may affect'' determinations, and section 7 consultation will be 
required if any of the constituent elements are present.
    Our Response: We acknowledge that there may be some additional 
section 7 consultations due to critical habitat. However, we believe in 
most cases, the outcome of these consultations will be similar to the 
outcome of consultations without critical habitat. See our response to 
Issue 39. Since vernal pools are widely recognized as a sensitive and 
declining habitat, projects are often required, by jurisdictions other 
than the Service, to offset impacts to vernal pools regardless of the 
presence of designated critical habitat. Therefore, we believe that if 
there is any additional burden due to critical habitat, it will be 
minimal.
    (10) Comment: Several commenters requested that, once a section 7 
consultation is completed that addresses the San Diego fairy shrimp, 
the lands covered by the consultation be excluded from critical 
habitat, similar to what has been proposed for lands covered by 
approved HCPs.
    Our Response: We disagree that lands covered by a section 7 
consultation should be removed from critical habitat. Section 7 of the 
Act requires that Federal actions not jeopardize the continued 
existence of a species or result in the destruction or adverse 
modification of critical habitat. In contrast, HCPs typically provide 
for greater conservation benefits to a covered species by assuring the 
long-term protection and management of a covered species and its 
habitat, and funding for such management through the standards found in 
the 5-Point Policy for HCPs (64 FR 35242), the HCP No Surprises 
regulation (63 FR 8859), and relevant regulations governing the 
issuance and implementation of HCPs. However, such assurances are 
typically not provided in connection with Federal projects subject to 
section 7 consultations which, in contrast to activities on non-Federal 
lands covered by HCPs, often do not commit to long term special 
management or protections.
    (11) Comment: Comments received from the Department of Defense 
(DOD) requested that their lands be excluded from the critical habitat 
designation because protections and management afforded the San Diego 
fairy shrimp under Integrated Natural Resource Management Plans 
(INRMPs) pursuant to the Sike's Act were sufficient, thereby resulting 
in their lands not requiring special management or protection and

[[Page 63449]]

not meeting the definition of critical habitat.
    Our Response: We agree that INRMPs can provide special management 
lands such that they no longer meet the definition of critical habitat 
when the plans meet the following criteria: (1) a current INRMP must be 
complete and provide sufficient conservation benefit to the San Diego 
fairy shrimp, (2) the plan must provide assurances that the 
conservation management strategies will be implemented, and (3) the 
plan must provide assurances that the conservation management 
strategies will be effective, i.e., provide for periodic monitoring and 
revisions as necessary. If all of these criteria are met, then the 
lands covered under the plan would no longer meet the definition of 
critical habitat.
    To date, Marine Corps Air Base, Miramar is the only DOD 
installation that has completed a final INRMP that provides for 
sufficient conservation management and protection for the San Diego 
fairy shrimp. We have reviewed this plan and have determined that it 
addresses and meets the three criteria. Therefore, lands on Marine 
Corps Air Base, Miramar no longer meet the definition of critical 
habitat, and they have been excluded from the final designation of 
critical habitat for the San Diego fairy shrimp.
    (12) Comment: Are emergency maintenance activities within 
designated critical habitat exempt for consultation under section 7 of 
the Act?
    Our Response: Emergency maintenance activities are not exempt from 
consultation under section 7 of the Act. The regulations at 50 CFR 
402.05 allow for informal consultation where emergency circumstances 
mandate the need to consult in an expedited manner. Formal consultation 
must be initiated as soon as possible after the emergency is under 
control. In addition, we have conducted programmatic consultations with 
FEMA and other Federal agencies for future anticipated emergency 
actions. These consultations can be conducted prior to the emergency 
and address anticipated response activities.
    (13) Comment: Several commenters requested that we extend the 
comment period on the proposed determination and economic analysis to 
allow for additional outreach to affected property owners and to obtain 
their comments.
    Our Response: Following the publication of the proposed critical 
habitat determination on March 8, 2000, we opened a 60-day public 
comment period, which closed on May 8, 2000. We conducted outreach 
notifying affected elected officials, local jurisdictions, and interest 
groups. We conducted much of this outreach through legal notices in 
regional newspapers; letters and news releases faxed and/or mailed to 
elected officials, local jurisdictions, and interest groups; and 
publication of the proposed determination and associated material on 
our Regional world wide web page. We published a notice in the Federal 
Register on August 21, 2000, announcing the availability of the draft 
economic analysis and opening a public comment period from August 21, 
2000, to September 5, 2000, to allow for comments on the draft economic 
analysis and additional comments on the proposed determination. We 
provided notification of the draft economic analysis through letters 
and news releases faxed and/or mailed to affected elected officials, 
local jurisdictions, and interest groups. We also published the draft 
economic analysis and associated material on our Regional world wide 
web page following the draft's release on August 21, 2000. Because of 
the court-ordered timeframe, we were not able to extend or open an 
additional public comment period.
    (14) Comment: Critical habitat should not have been proposed before 
an economic and other impacts analysis was completed, and the 
opportunity to comment on the economic analysis and the proposed rule 
was limited.
    Our Response: We published the proposed determination in the 
Federal Register (65 FR 5946), and invited public comment. We used 
comments received on the proposed critical habitat to develop the draft 
economic analysis. We reopened the comment period from August 21, 2000, 
to September 5, 2000, to allow for comments on the draft economic 
analysis and proposed rule. We believe this was sufficient given the 
short timeframe ordered by the court.
    (15) Comment: Several commenters recommended adding specific lands 
to critical habitat. These additions included Carmel Mountain, all 
pools identified in the Vernal Pool Recovery Plan, and all vernal pools 
currently known.
    Our Response: We did not include all known vernal pools in proposed 
critical habitat. All of the designated critical habitat areas are 
considered essential to the conservation of the San Diego fairy shrimp 
as described in the Recovery Plan for Vernal Pools of Southern 
California. Other vernal pools, including those on Carmel Mountain, 
were not designated as critical habitat, because they are included in 
the MSCP plans. The vernal pools on Carmel Mountain are within the San 
Diego MSCP and were excluded pursuant to section 4(b)(2).
    (16) Comment: A number of commenters identified specific areas that 
they thought should not be designated as critical habitat.
    Our Response: Where site-specific documentation was submitted to us 
providing a rationale as to why an area should not be designated 
critical habitat, we evaluated that information in accordance with the 
definition of critical habitat pursuant to section 3 of the Act. We 
made a determination as to whether modifications to the proposal were 
appropriate. We reviewed the maps to ensure that only those lands 
essential for the conservation of the San Diego fairy shrimp were 
designated as critical habitat. We excluded lands from the final 
designation that we determined to be non-essential to the conservation 
of the San Diego fairy shrimp. We also excluded lands that were located 
within an approved HCP for the San Diego fairy shrimp upon determining 
that the benefits of excluding those areas outweighed the benefits of 
including them. We included lands in the final designation that we 
still considered essential, using the revised mapping scale and did not 
have special management sufficient for the conservation of the San 
Diego fairy shrimp. Certain lands that were included in the proposed 
rule were not designated as critical habitat. For example, based on 
information provided during the comment periods, we excluded Otay Land 
Company property since no vernal pools were present.
    (17) Comment: Several commenters recommended that we postpone 
issuing a final determination until a more specific and defensible 
critical habitat proposal can be written and an accurate and 
quantitative economic analysis be conducted.
    Our Response: We are required to use the best available information 
in designating critical habitat. We are under a court order to complete 
the designation of San Diego fairy shrimp critical habitat by October 
15, 2000. We did solicit new biological data and public participation 
during the comment periods on the proposed rule and draft economic 
analysis. These comments have been taken into account in the 
development of this final determination. Further, we will continue to 
monitor and collect new information and may revise the critical habitat 
designation in the future if new information supports a change, given 
our available funding and priorities.

[[Page 63450]]

Issue 3: Economic Issues

    (18) Comment: Some commenters stated that we should have estimated 
the cumulative economic effect of the critical habitat designation for 
the San Diego fairy shrimp along with the effect of future pending and 
proposed critical habitat for other species in southern California.
    Our Response: We are not required to estimate the cumulative 
effects of critical habitat designations as part of our rulemaking 
procedures. We are required to only consider the effect of the proposed 
government action, which in this case is the designation of critical 
habitat for the San Diego fairy shrimp. Again, the appropriate baseline 
to use in an analysis of a Federal action, which in this case is the 
designation of critical habitat for the San Diego fairy shrimp, is the 
way the world would look absent the proposed regulation. Against this 
baseline, we attempt to identify and measure the incremental costs and 
benefits associated with the government action. Because the San Diego 
fairy shrimp is already a federally protected species, any effects the 
listing has on the regulated community is considered part of the 
baseline scenario. Future pending and proposed critical habitat 
designations for other species in southern California will be part of 
separate rulemakings and consequently, their economic effects will be 
considered separately.
    (19) Comment: Some commenters were concerned that, while we 
discussed impacts that are more appropriately attributable to the 
listing of the San Diego fairy shrimp than to the proposed designation 
of critical habitat, we did not provide quantified estimates of 
economic impacts associated with the listing.
    Our Response: We do not agree that the economic impacts of the 
listing should be considered in the economic analysis for the 
designation of critical habitat. Section 4(b) of the Act is clear that 
the listing decision be based solely on the best available scientific 
and commercial data available. Congress also made it clear in the 
Conference Report accompanying the 1982 amendments to the Act that 
``economic considerations have no relevance to determinations regarding 
the status of species * * *'' If we were to consider the economic 
impacts of listing in the critical habitat designation analysis it 
would lead to confusion, because the designation analysis is meant to 
determine whether areas should be excluded from the designation of 
critical habitat based solely upon the costs and benefits of the 
designation, and not upon the costs and benefits of listing a species. 
Additionally, because the Act specifically precludes us from 
considering the economic impacts of the listing, it would be improper 
to consider those impacts in the context of an economic analysis of the 
critical habitat designation. Our economic analyses address how our 
actions may affect current or planned activities and practices; they do 
not address impacts associated with previous Federal actions, which in 
this case includes the listing of the San Diego fairy shrimp as an 
endangered species.
    (20) Comment: One commenter was concerned that the economic 
analysis failed to address the economic impacts of baseline conditions 
and we were at fault for defining the baseline as ``without critical 
habitat.''
    Our Response: The statutory language in the Act prohibits us from 
considering economic impacts when determining whether or not a species 
should be added to the list of federally protected species. As a 
result, we have not estimated these impacts in the past, nor were we 
able to do so for the draft economic analysis on proposed critical 
habitat for the San Diego fairy shrimp. Typically, our economic 
analyses are principally concerned with how our proposed actions may 
affect current activities and practices and do not focus on impacts 
associated with previous Federal actions, which in this case includes 
the listing of the San Diego fairy shrimp as an endangered species in 
1997. By defining our baseline as ``without critical habitat 
designation'' our analyses are consistent with the standards published 
by the Office of Management and Budget for preparing economic analyses 
under Executive Order 12866.
    (21) Comment: Many commenters expressed concern that the draft 
economic analysis failed to quantify the effects of proposed critical 
habitat designation, or that we could not adequately assess the impacts 
of critical habitat, as we did not include detailed information on land 
uses or potential effects of their designation.
    Our Response: We were able to identify only the types of impacts 
likely to occur as a result of proposed critical habitat designation. 
These impacts include new consultations, reinitiation of consultations, 
and perhaps some prolongment of ongoing consultations to address 
critical habitat concerns, as required under section 7 of the Act. In 
some of these cases, it is possible that we might recommend reasonable 
and prudent alternatives to the proposed activity that triggered the 
consultation, which would also be an impact. Also, the length of time 
required to carry out consultations may result in opportunity costs 
associated with project delays. Due to the short time required by the 
court to complete this action, we were unable to quantify these 
impacts. We intend to quantify impacts for future designations.
    In the case of critical habitat for the San Diego fairy shrimp, 
however, we have only designated habitat within the geographical area 
that is occupied by the San Diego fairy shrimp (except for 18 ha (55 
ac) of unknown occupancy). As a result, these impacts are not likely to 
be significant because Federal agencies are already required to consult 
with us on activities taking place on these lands that have the 
potential to adversely affect the San Diego fairy shrimp. While the Act 
requires agencies to consult with us on activities that may adversely 
affect the San Diego fairy shrimp and critical habitat, we do not 
believe that within proposed critical habitat for the San Diego fairy 
shrimp there are likely to be any actions of concern that adversely 
modify critical habitat without simultaneously causing concern about 
the potential for the action to jeopardize the San Diego fairy shrimp, 
which would trigger a consultation regardless of critical habitat 
designation.
    We also recognize that in some instances, the designation of 
critical habitat could result in a distorted real estate market because 
participants may believe that land within critical habitat designation 
is subject to additional constraints. In truth, this is not the case 
because critical habitat designation for the San Diego fairy shrimp is 
not adding any extra protection, nor impacting landowners beyond that 
associated with the listing of the species as threatened under the Act. 
As a result, we believe that any resulting distortion will be temporary 
and have a relatively insignificant effect on the real estate market as 
it should become readily apparent to market participants that critical 
habitat for the San Diego fairy shrimp is not imposing any additional 
constraints on landowner activities beyond those currently associated 
with the listing.
    (22) Comments: The draft economic analysis failed to consider the 
effect critical habitat designation would have on the demand for new 
housing, and that the economic analysis ignores the impact of the 
designation on California's critical housing shortage.
    Our Response: We do not believe that the designation of critical 
habitat to the San Diego fairy shrimp will have any further additional 
impacts on land development. This belief stems from the

[[Page 63451]]

fact that vernal pools, which constitute the critical habitat we have 
proposed to designate, are already classified as wetlands. As a result, 
developers must first obtain a section 404 wetland development permit 
from the Corps before proceeding with any development activity. Because 
the San Diego fairy shrimp is already a federally protected species, 
the Corps is currently required to consult on their activities that may 
affect the San Diego fairy shrimp. Consequently, critical habitat 
designation for the San Diego fairy shrimp will have no significant 
effect on land development activities.
    (23) Comment: The assumption applied in the economic analysis that 
the designation of critical habitat will cause no impacts above and 
beyond those caused by listing of the species is faulty, legally 
indefensible, and contrary to the Act. ``Adverse modification'' and 
``jeopardy'' are different, will result in different impacts, and 
should be analyzed as such in the economic analysis.
    Our Response: We disagree with the commenter's assertion that 
``jeopardy'' and ``adverse modification'' represent different 
standards. Section 7 prohibits actions funded, authorized, or carried 
out by Federal agencies from jeopardizing the continued existence of a 
listed species or destroying or adversely modifying the listed species' 
critical habitat. Actions likely to ``jeopardize the continued 
existence'' of a species are those that would appreciably reduce the 
likelihood of both the survival and recovery of a listed species. 
Actions likely to result in the destruction or adverse modification of 
critical habitat are those that would appreciably reduce the value of 
critical habitat for both the survival and recovery of a listed 
species. Common to both definitions is an appreciable detrimental 
effect on both survival and recovery of a listed species. Given the 
similarity of these definitions, actions likely to result in the 
destruction or adverse modification of critical habitat would almost 
always result in jeopardy to the species concerned, particularly where, 
as here, only habitat within the geographic area occupied by the San 
Diego fairy shrimp is designated as critical habitat.
    (24) Comment: Several commenters questioned our ability to 
accurately estimate the economic effects of critical habitat 
designation because of the imprecise method used by the Service to 
designate critical habitat.
    Our Response: We believe that the method used to identify proposed 
critical habitat for the San Diego fairy shrimp was sufficiently 
accurate for us to identify land ownership and use activities that 
potentially could be affected by the designation. Because we have 
limited the designation to vernal pools, which are already subject to 
section 7 consultations due to the presence of a federally protected 
species, and because any land development activities already require an 
authorizing permit from the Corps, we believe we have accurately 
identified and summarized potential economic effects from the 
designation.
    (25) Comment: One commenter stated that the designation of critical 
habitat on Camp Pendelton and MAS Miramar would significantly restrict 
and unduly compromise unit commanders' ability and flexibility to 
simulate real world combat scenarios and contingencies, which the 
economic analysis failed to measure.
    Our Response: The economic analysis addressed proposed critical 
habitat designation on these two military installations. The analysis 
concluded, however, that these installations would face little 
additional impact beyond that currently experienced due to the listing 
of the San Diego fairy shrimp. The Service, however, is aware of the 
strategic importance of these military installations. No critical 
habitat was designated at Miramar because their approved INRMP provided 
sufficient management for the San Diego fairy shrimp and thus these 
vernal pool areas do not meet the definition of critical habitat. 
Critical habitat that was proposed on Camp Pendleton was excluded 
through section 4(b)(2) of the Act, since the benefits of excluding 
outweigh the benefits of including those vernal pool areas within the 
designation.

Issue 4: Other Relevant Issues

    (26) Comment: The Marine Corps commented that the Service did not 
evaluate the impact of the critical habitat designation on training 
maneuvers at Marine Corps Base Camp Pendleton and the subsequent impact 
on the combat readiness of the Marine Corps.
    Our Response: Training maneuvers at Camp Pendleton are already 
subject to section 7 of the Act. However, we evaluated the impact of 
the designation of critical habitat at Camp Pendleton and determined 
that it would have caused significant curtailment of necessary training 
within the area designated, to the detriment of mission-critical 
training capability. Thus, in this final rule, we are designating only 
the area on Camp Pendleton that includes lands leased by the California 
State Department of Parks and Recreation and private interests from 
Camp Pendleton.
    (27) Comment: Vernal pools and fairy shrimp habitat are best 
preserved by government ownership and management of the land rather 
than private ownership. Small vernal pools on isolated parcels of land 
in danger from development should be relocated to government-owned 
land.
    Our Response: We agree that land acquisition can be an important 
tool in the conservation of vernal pools, and will continue to pursue 
this strategy to conserve vernal pools where appropriate.

Summary of Changes From the Proposed Rule

    Based on a review of public comments received on the proposed 
determination of critical habitat and economic analysis for the San 
Diego fairy shrimp, we reevaluated our proposed designation of critical 
habitat for this species. These changes include the following: (1) 
Reduction in the minimum mapping unit for defining critical habitat 
boundaries; (2) removal of Marine Corps Air Station, Miramar from the 
designation due to an existing, finalized resource management plan; and 
(3) removal of Marine Corps Base Camp Pendleton from the designation 
(except for lands leased by the California State Department of Parks 
and Recreation and private interests from Camp Pendleton) under section 
4(b)(2) of the Act.
    Based on public comment and the availability of more current and 
precise GIS (spot imagery) data, we refined the minimum mapping unit 
for the designation from a 1 km (0.6 mi) UTM grid to a 250 m (820 ft) 
UTM grid. We then superimposed the proposed critical habitat boundaries 
on the newer imagery data and removed lands that were not essential to 
the conservation of the San Diego fairy shrimp. The refined mapping 
scale reduced the total amount of land by approximately 6,575 ha 
(16,247 ac) as designated as critical habitat.
    During the comment period for the proposed determination of 
critical habitat for the San Diego fairy shrimp, we received and 
subsequently evaluated a final Integrated Natural Resource Management 
Plan for Marine Corps Air Base, Miramar. This plan addresses the San 
Diego fairy shrimp as a covered species and provides conservation 
management and protections for the species. We evaluated this plan and 
determined that the conservation management measures and protections 
afforded the San Diego fairy shrimp are sufficient to ensure its 
conservation on

[[Page 63452]]

the Base (see discussion under Evaluation of Areas for Special 
Management section of this rule). Therefore, we have excluded Marine 
Corps Air Base, Miramar from the final determination of critical 
habitat for San Diego fairy shrimp.
    We also determined that it is appropriate to exclude Camp Pendleton 
from this critical habitat designation. Under section 4(b)(2) of the 
Act, we weighed the benefits of excluding Camp Pendleton land against 
the benefits of designating these areas and concluded that the benefits 
excluding outweigh the benefits of including. The main benefit of this 
exclusion is ensuring that the mission-critical military training 
activities can continue without interruption at Camp Pendleton while 
formal consultation on upland activities at the base is being 
completed.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species.
    Economic effects caused by listing the San Diego fairy shrimp as an 
endangered species, and by other statutes, are the baseline upon which 
the effects of critical habitat designation are evaluated. The economic 
analysis must then examine the incremental economic effects of the 
critical habitat including both the cost and benefits. Economic effects 
are measured as changes in national income, regional jobs, and 
household income. An analysis of the economic effects of San Diego 
fairy shrimp critical habitat designation was prepared (Industrial 
Economics, Incorporated, 2000) and made available for public review 
(August 21-September 5, 2000; 65 FR 50672). The final analysis, which 
reviewed and incorporated public comments, concluded that no 
significant economic impacts are expected from critical habitat 
designation above and beyond those already imposed by listing the San 
Diego fairy shrimp. The most likely economic effects of critical 
habitat designation are on activities funded, authorized, or carried 
out by a Federal agency. The analysis examined the effects of the 
proposed designation on: (1) Reinitiation of section 7 consultations, 
(2) length of time in which section 7 consultations are completed, and 
(3) new consultation resulting from the determination. Because areas 
proposed for critical habitat are within the geographic range occupied 
by the San Diego fairy shrimp, activities that may affect critical 
habitat may also affect the species, and would thus be subject to 
consultation whether or not critical habitat is designated. We believe 
that any project that would adversely modify or destroy critical 
habitat would also jeopardize the continued existence of the species 
and that reasonable and prudent alternatives to avoid jeopardizing the 
species would also avoid adverse modification of critical habitat. 
Thus, no regulatory burden or significant additional costs would accrue 
because of critical habitat above and beyond that resulting from 
listing. Our economic analysis recognizes that there may be costs from 
delays associated with reinitiating completed consultations after the 
critical habitat designation is made final. There may also be economic 
effects due to the reaction of the real estate market to critical 
habitat designation, as real estate values may be lowered due to 
perceived increase in the regulatory burden. We believe this impact 
will be short-term, however.
    A copy of the final economic analysis and description of the 
exclusion process with supporting documents are included in our 
administrative record and may be obtained by contacting our office (see 
ADDRESSES section).

Public Hearings

    No public hearing was held for the proposed rule.

Required Determinations

Regulatory Planning and Review

    This document has been reviewed by the Office of Management and 
Budget (OMB), in accordance with Executive Order 12866. OMB makes the 
final determination under Executive Order 12866.
    (a) This rule will not have an annual economic effect of $100 
million or more or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government. A cost-benefit 
analysis is not required. The San Diego fairy shrimp was listed as an 
endangered species in 1997. In fiscal years 1997 through 1999, we 
conducted 27 formal section 7 consultations with other Federal agencies 
to ensure that their actions would not jeopardize the continued 
existence of the fairy shrimp.
    The areas designated as critical habitat are currently within the 
geographic range occupied by the San Diego fairy shrimp. Under the Act, 
critical habitat may not be destroyed or adversely modified by a 
Federal agency action; the Act does not impose any restrictions on non-
Federal entities unless they are conducting activities funded or 
otherwise sponsored or permitted by a Federal agency (see Table 2 
below). Section 7 requires Federal agencies to ensure that they do not 
jeopardize the continued existence of the species. Based upon our 
experience with the species and its needs, we conclude that any Federal 
action or authorized action that could potentially cause an adverse 
modification of the proposed critical habitat would currently be 
considered as ``jeopardy'' under the Act. Accordingly, the designation 
of occupied areas as critical habitat does not have any incremental 
impacts on what actions may or may not be conducted by Federal agencies 
or non-Federal persons that receive Federal authorization or funding. 
Non-Federal persons that do not have a Federal ``sponsorship'' of their 
actions are not restricted by the designation of critical habitat 
(however, they continue to be bound by the provisions of the Act 
concerning ``take'' of the species). Additionally, designation of 
critical habitat in these areas will also not likely result in an 
increased regulatory burden since the Corps requires review of projects 
requiring permits in all vernal pools.
    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions do not jeopardize the continued existence of 
the San Diego fairy shrimp since the listing in 1997. The prohibition 
against adverse modification of critical habitat is not expected to 
impose any additional restrictions to those that currently exist in 
occupied areas of designated critical habitat. Because of the potential 
for impacts on other Federal agency activities, we will continue to 
review this action for any inconsistencies with other Federal agency 
actions.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Federal agencies are currently required to ensure that their activities 
do not jeopardize the continued existence of the species, and, as 
discussed above, we do not anticipate that the adverse modification 
prohibition (resulting from critical habitat designation) will have any

[[Page 63453]]

incremental effects in areas of occupied habitat. Additionally, 
designation of critical habitat in these areas will not likely result 
in an increased regulatory burden since the Corps requires review of 
projects requiring permits in all vernal pools.
    (d) This rule will not raise novel legal or policy issues. The rule 
follows the requirements for determining critical habitat contained in 
the Endangered Species Act.

                    Table 2.--Impacts of San Diego Fairy Shrimp Critical Habitat Designation.
----------------------------------------------------------------------------------------------------------------
                                             Activities potentially         Additional activities potentially
        Categories of activities           affected by species listing         affected by critical habitat
                                                    only \1\                         designation \2\
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially           Activities such as those        None.
 Affected.\3\                             affecting waters of the
                                          United States by the Army
                                          Corps of Engineers under
                                          section 404 of the Clean
                                          Water Act; road construction
                                          and maintenance, right-of-way
                                          designation, and regulation
                                          of agricultural activities;
                                          regulation of airport
                                          improvement activities under
                                          Federal Aviation
                                          Administration jurisdiction;
                                          military training and
                                          maneuvers on Marine Corps
                                          Base Camp Pendleton and
                                          Marine Corps Air Station,
                                          Miramar and other applicable
                                          DOD lands; construction of
                                          roads and fences along the
                                          international border with
                                          Mexico and associated
                                          immigration enforcement
                                          activities by the Immigration
                                          and Naturalization Service;
                                          construction of communication
                                          sites licensed by the Federal
                                          Communications Commission;
                                          and activities funded by any
                                          Federal agency.
Private or other non-Federal Activities  Activities such as removing or  None.
 Potentially Affected.\4\                 destroying San Diego fairy
                                          shrimp habitat (as defined in
                                          the primary constituent
                                          elements discussion), whether
                                          by mechanical, chemical, or
                                          other means, (e.g. grading,
                                          overgrazing, construction,
                                          road building, herbicide
                                          application, etc.), and
                                          appreciably decreasing
                                          habitat value or quality
                                          through indirect effects
                                          (e.g., edge effects, invasion
                                          of exotic plants or animals,
                                          or fragmentation) that
                                          require a Federal action
                                          (permit, authorization, or
                                          funding)).
----------------------------------------------------------------------------------------------------------------
\1\ This column represents the activities potentially affected by listing the San Diego fairy shrimp as an
  endangered species (February 3, 1997; 62 FR 4925) under the Endangered Species Act.
\2\ This column represents activities potentially affected by the critical habitat designation in addition to
  those activities potentially affected by listing the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private or other non-Federal entity that may need Federal authorization or
  funding.

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

    In the economic analysis, we determined that designation of 
critical habitat will not have a significant effect on a substantial 
number of small entities. As discussed under Regulatory Planning and 
Review above and in this final determination, this designation of 
critical habitat for the San Diego fairy shrimp is not expected to 
result in any restrictions in addition to those currently in existence 
for areas of occupied critical habitat. As indicated on Table 1 (see 
Critical Habitat Designation section), we designated property owned by 
Federal, State, and local governments, and private property.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the Corps under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies;
    (3) Regulation of grazing, mining, and recreation by the Bureau of 
Land Management or U.S. Forest Service;
    (4) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities;
    (5) Regulation of airport improvement activities by the Federal 
Aviation Administration;
    (6) Military training and maneuvers on Camp Pendleton and other 
applicable DOD lands;
    (7) Construction of roads and fences along the international border 
with Mexico, and associated immigration enforcement activities by the 
INS;
    (8) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency;
    (9) Construction of communication sites licensed by the Federal 
Communications Commission; and
    (10) Activities funded by the U.S. Environmental Protection Agency, 
U.S. Department of Energy, or any other Federal agency.
    Many of these activities sponsored by Federal agencies within the 
designated critical habitat areas are carried out by small entities (as 
defined by the Regulatory Flexibility Act) through contract, grant, 
permit, or other Federal authorization. As discussed above, these 
actions are currently required to comply with the listing protections 
of the Act, and the designation of critical habitat is not anticipated 
to have any additional effects on these activities in areas of critical 
habitat occupied or potentially unoccupied by the species.
    For actions on non-Federal property that do not have a Federal 
connection (such as funding or authorization), the current restrictions 
concerning take of the species remain in effect, and this rule will 
have no additional restrictions.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    In the economic analysis, we determined whether designation of 
critical habitat would cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions, or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. Refer to the final economic analysis for a discussion of 
the effects of this determination.

Unfunded Mandates Reform Act 
(2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A

[[Page 63454]]

Small Government Agency Plan is not required. Small governments will be 
affected only to the extent that any programs using Federal funds, 
permits, or other authorized activities must ensure that their actions 
will not adversely affect the critical habitat. However, as discussed 
above, these actions are currently subject to equivalent restrictions 
through the listing protections of the species, and no further 
restrictions are anticipated.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year, that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. As discussed above, the designation of critical habitat 
affects only Federal agency actions. The rule will not increase or 
decrease the current restrictions on private property concerning take 
of the San Diego fairy shrimp. Due to current public knowledge of the 
species protection, the prohibition against take of the species both 
within and outside of the designated areas, and the fact that critical 
habitat provides no incremental restrictions, we do not anticipate that 
property values will be affected by the critical habitat designation. 
While real estate market values may temporarily decline following 
designation, due to the perception that critical habitat designation 
may impose additional regulatory burdens on land use, we expect any 
such impacts to be short-term. Additionally, critical habitat 
designation does not preclude development of HCPs and issuance of 
incidental take permits. Landowners in areas that are included in the 
designated critical habitat will continue to have opportunity to 
utilize their property in ways consistent with the survival of the San 
Diego fairy shrimp.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. The designation of critical habitat within the geographic 
range occupied by the San Diego fairy shrimp imposes no additional 
restrictions to those currently in place and, therefore, has little 
incremental impact on State and local governments and their activities. 
The designation may have some benefit to these governments in that the 
areas essential to the conservation of the species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species are specifically identified. While 
making this definition and identification does not alter where and what 
federally sponsored activities may occur, it may assist these local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We designate critical habitat in accordance with the 
provisions of the Act. The determination uses standard property 
descriptions and identifies the primary constituent elements within the 
designated areas to assist the public in understanding the habitat 
needs of the San Diego fairy shrimp.

Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.)

    This rule references permits for HCPs which contain information 
collection activity. The Fish and Wildlife Service has OMB approval for 
the collection under OMB Control Number 1018-0094. The Service may not 
conduct or sponsor, and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    We determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 Act in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244). This final determination 
does not constitute a major Federal action significantly affecting the 
quality of the human environment.

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal lands essential for the conservation of the San 
Diego fairy shrimp because they do not support populations or suitable 
habitat. Therefore, critical habitat for the San Diego fairy shrimp has 
not been designated on Tribal lands.

References Cited

    A complete list of all references cited in this final rule is 
available upon request from the Carlsbad Fish and Wildlife Office (see 
ADDRESSES section).

Author

    The primary authors of this notice are the Carlsbad Fish and 
Wildlife Office staff (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations 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. In Sec. 17.11(h), revise the entry for ``Fairy shrimp, San 
Diego'' under ``CRUSTACEANS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 63455]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                 Vertebrate
------------------------------------------------------                      population where                                                   Special
                                                         Historic range       endangered or        Status     When listed  Critical habitat     rules
           Common name              Scientific name                            threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
           Crustaceans
 
                   *                  *                  *                  *                  *                  *                  *
Fairy shrimp, San Diego.........  Branchinecta         U.S.A. (CA).......  NA................  E                      608  17.95(h)                   NA
                                   sandiegonensis.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec. 17.95 add critical habitat for the San Diego fairy 
shrimp (Branchinecta sandiegonensis) under paragraph (h) in the same 
alphabetical order as this species occurs in Sec. 17.11(h), to read as 
follows:


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (h) Crustaceans.
* * * * *

San Diego Fairy Shrimp (Branchinecta sandiegonensis)

    1. Critical habitat units are depicted for Orange and San Diego 
counties, California, on the maps below.
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR23OC00.010

    2. Critical habitat includes vernal pool basins and vernal pool 
complexes indicated on the maps below and their associated 
watersheds and hydrologic regime.
    3. Within these areas, the primary constituent elements include, 
but are not limited to, those habitat components that are essential 
for the primary biological needs of foraging, sheltering, 
reproduction, and dispersal. The primary constituent elements are 
found in those areas that support vernal pools or other ephemeral 
depressional wetlands. Within these seasonal wetlands, specific 
associations that are essential to the primary biological needs of 
the San Diego fairy shrimp include, but are not limited to: small to 
large vernal pools with shallow to moderate depths that hold water 
for sufficient lengths of time necessary for San Diego fairy shrimp 
incubation and reproduction, but not necessarily every year; entire 
watershed(s) and hydrology for vernal pool basins and their 
associated vernal pool complexes, ephemeral depressional wetlands, 
flat or gently sloping topography, and any soil type with a clay 
component and/or an impermeable surface or subsurface layer known to 
support vernal pool habitat.
    4. Existing features and structures, such as buildings, roads, 
railroads, urban development, and other features not containing 
primary constituent elements, are not considered critical habitat. 
In addition,

[[Page 63456]]

critical habitat does not include non-Federal lands covered by a 
legally operative incidental take permit for the San Diego fairy 
shrimp issued under section 10(a)(1)(B) of the Act on or before 
October 23, 2000.
[GRAPHIC] [TIFF OMITTED] TR23OC00.011

Map Unit 1: Orange County (Fairview Park) Critical Habitat Unit, 
Orange County, California

    From USGS 1:24,000 quadrangle map Newport Beach (1981), 
California, the lands bounded by the following UTM, North American 
Datum 1927 (NAD 27) coordinates (E,N): 412500,3725000; 
413000,3725000; 413000,3724500; 412500,3724500; 412500,3725000.

[[Page 63457]]

[GRAPHIC] [TIFF OMITTED] TR23OC00.012


[[Page 63458]]


[GRAPHIC] [TIFF OMITTED] TR23OC00.013

Map Unit 2: San Diego: North Coastal Mesa Critical Habitat Unit, 
San Diego, County, California

    Unit 2a: From USGS 1:24000 quadrangle maps San Clemente (1968) 
and San Onofre Bluff (1975), California, the lands bounded by the 
following UTM NAD 27 coordinates (E,N): 447250,3693250; 
447500,3693250; 447500,3692750; 447000,3692750; 447000,3693000; 
447250,3693000; 447250,3693250, excluding the Pacific Ocean.
    Unit 2b: From USGS 1:24000 quadrangle map San Luis Rey (1975), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 473000,3665750; 473250,3665750; 473250,3665500; 
473500,3665500; 473500,3665250; 473000,3665250; 473000,3665750.
    Unit 2c: From USGS 1:24000 quadrangle maps Encinitas (1968), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 470250,3663500; 470750,3663500; 470750,3662500; 
470500,3662500; 470500,3662750; 470250,3662750; 470250,3663500.

[[Page 63459]]

[GRAPHIC] [TIFF OMITTED] TR23OC00.014


[[Page 63460]]


[GRAPHIC] [TIFF OMITTED] TR23OC00.015

Map Unit 3: San Diego: Inland Valley Critical Habitat Unit, San 
Diego, County, California

    Unit 3a: From USGS 1:24000 quadrangle map San Marcos (1983), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 481750,3667500; 482000,3667500; 482000,3667000; 
481750,3667000; 481750,3667500.
    Unit 3b: From USGS 1:24000 quadrangle map San Marcos (1983), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 482250,3667500; 482750,3667500; 482750,3667000; 
482250,3667000; 482250,3667500.
    Unit 3c: From USGS 1:24000 quadrangle map San Marcos (1983), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 481500,3666750; 482000,3666750; 482000,3666250; 
482250,3666250; 482250,3665750; 481500,3665750; 481500,3666000; 
481250,3666000; 481250,3666250; 481500,3666250; 481500,3666750.
    Unit 3d: From USGS 1:24000 quadrangle map San Marcos (1983), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 482750,3666750; 483000,3666750; 483000,3666250; 
482750,3666250; 482750,3666750.
    Unit 3e: From USGS 1:24000 quadrangle maps San Pasqual (1971) 
and Ramona (1988), California, the lands bounded by the following 
UTM NAD 27 coordinates (E,N): 508000,3657000; 509000,3657000; 
509000,3656000; 509750,3656000; 509750,3655500; 509500,3655500; 
509500,3655000; 509250,3655000; 509250,3654250; 509500,3654250; 
509500,3653750; 509750,3653750; 509750,3654000; 510000,3654000; 
510000,3654250; 509750,3654250; 509750,3654750; 512000,3654750; 
512000,3655000; 512250,3655000; 512250,3654750; 512500,3655000; 
512750,3655000; 512750,3654750; 512500,3654750; 512500,3654250; 
512000,3654250; 512000,3653500; 511750,3653500; 511750,3654500; 
510750,3654500; 510750,3654250; 510500,3654250; 510500,3654000; 
510250,3654000; 510250,3653250; 510500,3653250; 510500,3653000; 
509000,3653000; 509000,3654000; 508500,3654000; 508500,3654250; 
506500,3654250; 506500,3654500; 505500,3654500; 505500,3654750; 
505250,3654750; 505250,3654500; 505000,3654500; 505000,3654250; 
504500,3654250; 504500,3654750; 504000,3654750; 504000,3655000; 
505000,3655000; 505000,3656000; 506000,3656000; 506000,3655000; 
507000,3655000; 507000,3656000; 508000,3656000; 508000,3657000.
    Unit 3f: From USGS 1:24000 quadrangle map San Pasqual (1971) and 
Ramona (1988), California, the lands bounded by the following UTM 
NAD 27 coordinates (E,N): 511250,3655500; 511500,3655500; 
511500,3655250; 511750,3655250; 511750,3655000; 511250,3655000; 
511250,3655500.

[[Page 63461]]

[GRAPHIC] [TIFF OMITTED] TR23OC00.016


[[Page 63462]]


[GRAPHIC] [TIFF OMITTED] TR23OC00.017


[[Page 63463]]


[GRAPHIC] [TIFF OMITTED] TR23OC00.018

Map Unit 4: San Diego: Central Coastal Mesa Critical Habitat Unit, 
San Diego, County, California

    Unit 4a: From USGS 1:24000 quadrangle map Del Mar (1975), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 484000,3646000; 484500,3646000; 484500,3645750; 
484750,3645750; 484750,3645500; 486000,3645500; 486000,3645250; 
485750,3645250; 485750,3645000; 485000,3645000; 485000,3644750; 
484500,3644750; 484500,3645000; 484250,3645000; 484250,3645500; 
484000,3645500; 484000,3646000.
    Unit 4b: From USGS 1:24000 quadrangle map Del Mar (1975), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 483500,3642750; 484000,3642750; 484000,3642250; 
483500,3642250; 483500,3642750.
    Unit 4c: From USGS 1:24000 quadrangle map La Mesa (1975), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 490250,3629500; 490500,3629500; 490500,3628500; 
489750,3628500; 489750,3628750; 490000,3628750; 490000,3629250; 
490250,3629250; 490250,3629500.
    Unit 4d: From USGS 1:24000 quadrangle map National City (1975), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 493750,3622500; 494500,3622500; 494500,3622000; 
494250,3622000; 494250,3622250; 493750,3622250; 493750,3622500.

[[Page 63464]]

[GRAPHIC] [TIFF OMITTED] TR23OC00.019


[[Page 63465]]


[GRAPHIC] [TIFF OMITTED] TR23OC00.020


[[Page 63466]]


[GRAPHIC] [TIFF OMITTED] TR23OC00.021

Map Unit 5: San Diego: Southern Coastal Mesa Critical Habitat Unit, 
San Diego, County, California

    Unit 5a: From USGS 1:24000 quadrangle map Dulzura (1988), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 511750,3611500; 512000,3611500; 512000,3611250; 
511750,3611250; 511750,3611500.
    Unit 5b: From USGS 1:24000 quadrangle map Otay Mesa (1988), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 506250,3607250; 506750,3607250; 506750,3607000; 
506250,3607000; 506250,3606750; 506000,3606750; 506000,3607000; 
506250,3607000; 506250,3607250.
    Unit 5c: From USGS 1:24000 quadrangle map Otay Mesa (1988), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 505500,3604250; 506000,3604250; 506000,3603750; 
505750,3603750; 505750,3603500; 505500,3603500; 505500,3604250.
    Unit 5d: From USGS 1:24000 quadrangle map Imperial Beach (1975), 
California, the lands bounded by the following UTM NAD 27 
coordinates (E,N): 488250,3602750; 488500,3602750; 488500,3602250; 
488250,3602250; 488250,3602750.

* * * * *

    Dated: October 16, 2000.
Kenneth L. Smith,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-26967 Filed 10-17-00; 2:59 pm]
BILLING CODE 4310-55-RC