63438 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

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

Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations 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 neartotal loss of vernal pool habitat in these

areas (Ferren and Pritchett 1988; KeelerWolf 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

63440 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

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 peerreviewed 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 peerreviewed 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 longVerDate 11<MAY>2000 01:52 Oct 21, 2000 Jkt 194001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\23OCR2.SGM pfrm01 PsN: 23OCR2
Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations 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 reestablishment 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

County Federal

land 1

Local/state

land Private land Total

Orange ..................................................................................................................... N/A 25 ha

(62 ac)

N/A 25 ha

(62 ac)

San Diego ................................................................................................................ 88 ha

(218 ac)

154 ha

(379 ac)

1,362 ha

(3,366 ac)

1,604 ha

(3,963 ac)

Total .................................................................................................................. 88 ha

(218 ac)

179 ha

(441 ac)

1,362 ha

(3,366 ac)

1,629 ha

(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

63442 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

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:

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

63444 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

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 longterm 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

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

63446 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

exclusion is ensuring that the missioncritical 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

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

63448 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

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 longterm 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

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

63450 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

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

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

63452 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

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 costbenefit 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 nonFederal 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

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

Categories of activities Activities potentially affected by species listing only 1

Additional activities potentially affected by critical habitat designation 2

Federal Activities Potentially Affected.3Activities such as those 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.

None.

Private or other non-Federal Activities Potentially Affected.4Activities such as removing or 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)).

None.

1This 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. 2This column represents activities potentially affected by the critical habitat designation in addition to those activities potentially affected by listing the species. 3Activities initiated by a Federal agency.

4Activities 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 postdisaster 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

63454 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

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 shortterm. 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 § 17.11(h), revise the entry for

‘‘Fairy shrimp, San Diego’’ under

‘‘CRUSTACEANS’’ to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations 63455

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

*******

CRUSTACEANS

*******

Fairy shrimp, San

Diego.

Branchinecta

sandiegonensis.

U.S.A. (CA) ............. NA ........................... E 608 17.95(h) NA

*******

3. In § 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

§ 17.11(h), to read as follows:

§ 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

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,

63456 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

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.

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.

Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations 63457

63458 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

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.

Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations 63459

63460 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

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.

Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations 63461

63462 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations 63463

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.

63464 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations 63465

63466 Federal Register / Vol. 65, No. 205 / Monday, October 23, 2000 / Rules and Regulations

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