29384 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG34

Endangered and Threatened Wildlife

and Plants; Final Designation of

Critical Habitat for the Riverside Fairy

Shrimp

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), designate

critical habitat for the Riverside fairy

shrimp (Streptocephalus woottoni),

pursuant to the Endangered Species Act

of 1973, as amended (Act). A total of

approximately 2,790 hectares (6,870

acres) in Los Angeles, Orange,

Riverside, San Diego, and Ventura

counties, California, is designated as

critical habitat.

Critical habitat identifies specific

areas that have the physical and

biological features that are essential to

the conservation of a listed species, and

that may require special management

considerations or protection. The

primary constituent elements for the

Riverside fairy shrimp are those habitat

components that are essential for the

primary biological needs of foraging,

sheltering, reproduction, and dispersal.

Critical habitat for the Riverside fairy

shrimp includes those areas possessing

one or more of the primary constituent

elements.

Section 7 of the Act prohibits

destruction or adverse modification of

critical habitat by any activity funded,

authorized, or carried out by any

Federal agency. Section 4 of the Act

requires us to consider economic and

other impacts of specifying any

particular area as critical habitat. We

solicited data and comments from the

public on all aspects of the proposed

rule and economic analysis. We revised

the proposal to incorporate or address

new information received during the

comment periods.

EFFECTIVE DATE: This rule becomes

effective on June 29, 2001.

ADDRESSES: Comments and materials

received, as well as supporting

documentation used in the preparation

of this final rule, will be available for

public inspection, by appointment,

during normal business hours at the

Carlsbad Fish and Wildlife Office, U.S.

Fish and Wildlife Service, 2730 Loker

Avenue West, Carlsbad, California

92008.

FOR FURTHER INFORMATION CONTACT: Jim

Bartel, Field Supervisor, Carlsbad Fish

and Wildlife Office, at the above address

(telephone 760/431–9440; facsimile

760/431–9624).

SUPPLEMENTARY INFORMATION:

Background

The endangered Riverside fairy

shrimp (Streptocephalus woottoni) is a

small aquatic crustacean (Order:

Anostraca) that occurs in vernal pools,

pool-like ephemeral ponds, and humanmodified depressions from coastal

southern California south to

northwestern Baja California, Mexico.

This species is typically found in pools,

ponds, and depressions that are deeper

than the basins that support the

endangered San Diego fairy shrimp

(Branchinecta sandiegonensis)

(Hathaway and Simovich 1996). Water

chemistry, depth, temperature, and

ponding are considered important

factors in determining fairy shrimp

distribution (Belk 1977; Branchiopod

Research Group 1996; Gonzales et al.

1996); hence, no individuals have been

found in riverine or marine waters.

The Riverside fairy shrimp was first

collected in 1979 by C.H. Eriksen and

was identified as a new species in 1985

(Eng et al. 1990). Mature males are

between 13 and 25 millimeters (mm)

(0.5 to 1.0 inches (in.)) long. The

cercopods (structures that enhance the

rudder-like function of the abdomen)

are separate with plumose setae

(feathery bristles) along the borders.

Mature females are between about 13 to

22 mm (0.5 to 0.87 in.) in total length.

The brood pouch extends to the

seventh, eighth, or ninth abdominal

segment. The cercopods of females are

the same as the males. Both sexes of

Riverside fairy shrimp have the red

color of the cercopods covering all of

the ninth abdominal segment and 30 to

40 percent of the eighth abdominal

segment. Nearly all species of fairy

shrimp feed on algae, bacteria, protozoa,

rotifers, and bits of organic matter

(Pennak 1989; Eng et al. 1990).

Basins that support Riverside fairy

shrimp are typically dry a portion of the

year, but usually are filled by late fall,

winter, or spring rains, and may persist

into April or May. All anostracans,

including the Riverside fairy shrimp,

deposit eggs or cysts (organisms in a

resting stage) in the pool’s soil to wait

out dry periods. The hatching of the

cysts usually occurs from January to

March. The species hatches within 7 to

21 days after the pool refills, depending

on water temperature, and matures

between 48 to 56 days, depending on a

variety of habitat conditions (Hathaway

and Simovich 1996). The ‘‘resting’’ or

‘‘summer’’ 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 only a fraction of the total cyst bank

of anostracans in areas with variable

weather conditions or filling periods,

such as southern California, may hatch

in any given year. Thus, reproductive

success is spread over several seasons.

Vernal pools are discontinuously

distributed 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 with Mexico 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;

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

indicate that the contribution of

subsurface or overland water flows only

contribute to volume to vernal pools in

years of high precipitation when pools

are already saturated (Hanes and

Stromberg 1996) which may promote

genetic exchange with the transfer of

cysts and adults between pools.

Critical to the formation of vernal

pools is the presence of nearly

impermeable surface or subsurface soil

layers and flat or gently sloping

topography (less than 10 percent slope).

Downward percolation of water in

vernal pool basins is prevented by the

presence of this impervious layer

(Holland 1976, 1988). In southern

California, these impervious layers are

typically alluvial materials with clay or

clay loam subsoils, and they often form

a distinctive micro-relief known as

Gilgai or mima mound topography (Cox

1984). Basaltic or granitic substrates

(e.g., Hidden Lake and Santa Rosa

Plateau in Riverside County) or

indurated hardpan layers (e.g., coastal

San Diego County) may contribute to

poor drainage as well. Vernal pool

studies conducted in the Sacramento

Valley indicate that the contribution of

subsurface or overland water flows is

significant only in years of high

precipitation when pools are already

saturated (Hanes and Stromberg 1996).

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29385

On the coastal terraces in San Diego

County, pools are associated with the

Huerhuero, Stockpen, Redding, and

Olivenhain soil series. Huerhuero and

Stockpen soils were derived from

marine sediments and terraces, while

the Redding and Olivenhain soils series

were formed from alluvium. The

Redding and Olivenhain soils are

believed to have supported the majority

of the pools historically found in San

Diego County. In Riverside County, the

Santa Rosa Plateau has Murrieta stony

clay loams and soils of the Las Posas

series (Lathrop and Thorne 1976), and at

Skunk Hollow the soils in the

immediate area of the vernal pool are

Las Posas clay loam, Wyman clay loam,

and Willows soil (Service 1998).

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

or more vernal pools are often

interconnected by a shared watershed.

This habitat heterogeneity (consisting of

dissimilar elements or parts) may allow

between-pool water flow, as well as

fairy shrimp cysts, particularly during

years of high rainfall.

Urban and water development, flood

control, highway and utility projects, as

well as conversion of wildlands to

agricultural use, have eliminated or

degraded vernal pools and/or their

watersheds in southern California (Jones

and Stokes Associates 1987). Changes in

hydrologic patterns, certain military

activities, unauthorized fills,

overgrazing, and off-road vehicle use

also may imperil this aquatic habitat

and the Riverside fairy shrimp. The

flora and fauna in vernal pools or swales

can change if the hydrologic regime is

altered (Bauder 1986). Anthropogenic

(human origin) activities that reduce the

extent of the watershed or that alter

runoff patterns (i.e., amounts and

seasonal distribution of water) may

eliminate the Riverside fairy shrimp,

reduce population sizes or reproductive

success, or shift the location of sites

inhabited by this species. The

introduction of non-native plant

species, competition with invading

species, trash dumping, fire, and fire

suppression activities were some of the

reasons for listing the Riverside fairy

shrimp as endangered on August 3,

1993 (58 FR 4138). Because of these

threats, we anticipate that intensive

long-term monitoring and management

will be needed to conserve this species.

Historically, vernal pool soils covered

approximately 500 square kilometers

(km2) (200 square miles (mi2)) of San

Diego County (Bauder and McMillan

1998). The greatest recent losses of

vernal pool habitat in San Diego County

have occurred in Mira Mesa, Rancho

Penasquitos, and Kearny Mesa, which

account for 73 percent of all the pools

destroyed in the region during the 7-

year period between 1979 and 1986

(Keeler-Wolf et al. 1995). Other

substantial losses have occurred in the

Otay Mesa area, where over 40 percent

of the vernal pools were destroyed

between 1979 and 1990. Similar to San

Diego County, vernal pool habitat was

once extensive on the coastal plain of

Los Angeles and Orange counties.

Unfortunately, there has been a neartotal loss of vernal pool habitat in these

areas (Ferren and Pritchett 1988; KeelerWolf et al. 1995; Mattoni and Longcore

1997; Service 1998). Significant losses

of vernal pools supporting this species

have also occurred in Riverside County.

Previous Federal Action

The San Gorgonio chapter of the

Sierra Club submitted a petition dated

September 19, 1988, to list the Riverside

fairy shrimp as endangered. The

petitioner asserted that emergency

listing for this species was appropriate.

However, we determined that

emergency listing was not warranted

since the species was more widespread

than first thought and occurred in at

least one protected site. Nevertheless,

we did publish a proposed rule to list

the Riverside fairy shrimp as an

endangered species in the Federal

Register on November 12, 1991 (56 FR

57503). Because the species was not

identified until 1985, and its existence

remained known only to a few scientists

until 1988, the proposed rule

constituted the first Federal action on

the Riverside fairy shrimp. We

published the final rule to list the

Riverside fairy shrimp as endangered in

the Federal Register on August 3, 1993

(58 FR 41384). In 1998, the Vernal Pools

of Southern California Recovery Plan

(Recovery Plan) (Service 1998) was

finalized. This Recovery Plan detailed

the efforts required to meet the recovery

needs of the Riverside fairy shrimp.

On June 30, 1999, the Southwest

Center for Biological Diversity filed a

lawsuit in Federal District Court for the

Northern District of California for our

failure to designate critical habitat for

the Riverside fairy shrimp. On February

15, 2000, we entered into a settlement

agreement with the plaintiff (Southwest

Center for Biodiversity v. United States

Department of the Interior et al., C99–

3202 SC). Under this settlement

agreement, a final determination of

critical habitat was to be completed by

May 1, 2001. Subsequently, the

plaintiffs agreed to our request to extend

this deadline until May 22, 2001.

At the time of listing, we concluded

that designation of critical habitat for

the Riverside fairy shrimp was not

prudent because such designation

would not benefit the species. We were

concerned that critical habitat

designation would likely increase the

degree of threat from vandalism,

collecting, or other human activities. We

believed that the publication of maps

showing critical habitat units would

result in additional habitat destruction

through trampling, discing, grading, and

intentional acts of habitat vandalism.

Although we acknowledged that critical

habitat designation may identify and

call attention to areas important for

conservation or requiring special

protection, we concluded that the

vandalism threat posed by designating

critical habitat would outweigh these

benefits.

Subsequently, in the course of

working with local partners, planning

for conservation and management of the

Riverside fairy shrimp, responding to

several Freedom of Information Act

requests, and publishing the Vernal

Pools of Southern California Recovery

Plan (Service 1998), information about

the locations of vernal pools, vernal

pool complexes, and occurrences of

Riverside fairy shrimp were widely

distributed to the public. Since the

release of these data, we have not

documented an increase in the threats to

the species through vandalism,

collection, habitat destruction, or other

means. The instances of likely

vandalism, though real, were relatively

isolated. In contrast, we have observed

an increase in public interest in the

subspecies and its conservation through

survey efforts by species experts,

scientific research, regional and local

planning, and educational outreach.

Based on the lack of an increase in

vandalism threats, we have determined

that the threats to the Riverside fairy

shrimp and its vernal pool habitat from

the specific instances of habitat

destruction we identified in the final

listing rule do not outweigh the broader

educational, regulatory, and other

possible benefits that a designation of

critical habitat would provide for this

subspecies. Specifically, the potential

benefits include: (1) Triggering section 7

consultation in areas where it may not

otherwise occur because, for example,

the area becomes unoccupied; (2)

focusing conservation activities in the

most essential areas; (3) providing

educational benefits to State or county

governments or private entities; and (4)

preventing people from causing

inadvertent harm to this subspecies.

29386 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

Therefore, we have determined that

designation of critical habitat for the

Riverside fairy shrimp is prudent.

The proposed rule designating critical

habitat for the Riverside fairy shrimp

was published on September 21, 2000

(65 FR 57136). In the proposal, we

determined that it was prudent to

designate approximately 4,880 hectares

(ha) (12,060 acres (ac)) of lands in Los

Angeles, Orange, San Diego, Riverside,

and Ventura counties as critical habitat.

The publication of the proposed rule

opened a 60-day public comment

period, which closed on November 20,

2000. On February 28, 2001, we

published a notice announcing the

reopening of the comment period on the

proposal to designate critical habitat for

the Riverside fairy shrimp, and a notice

of availability of the draft economic

analysis on the proposed determination

(66 FR 12754). This second public

comment period closed on March 30,

2001.

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 or

threatened species to the point at which

listing under the Act is no longer

necessary.

Critical habitat receives protection

under section 7 of the Act through the

prohibition against destruction or

adverse modification of critical habitat

with regard to actions carried out,

funded, or authorized by a Federal

agency. Section 7 also requires

conferences on Federal actions that are

likely to result in the destruction or

adverse modification of proposed

critical habitat. In our regulations at 50

CFR 402.02, we define destruction or

adverse modification as ‘‘* * * a direct

or indirect alteration that appreciably

diminishes the value of critical habitat

for both the survival and recovery of a

listed species. Such alterations include,

but are not limited to, alterations

adversely modifying any of those

physical or biological features that were

the basis for determining the habitat to

be critical.’’ Aside from the added

protection that may be provided under

section 7, the Act does not provide other

forms of protection to lands designated

as critical habitat. Because consultation

under section 7 of the Act does not

apply to activities on private or other

non-Federal lands that do not involve a

Federal nexus, critical habitat

designation would not afford any

additional protections under the Act

against such activities.

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

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.

Our Policy on Information Standards

Under the Endangered Species Act,

published in the Federal Register on

July 1, 1994 (59 FR 34271), provides

criteria, establishes procedures, and

provides guidance to ensure that

decisions we make are based upon the

best scientific and commercial data

available. It requires Service biologists,

to the extent consistent with the Act, to

use primary and original sources of

information as the basis for

recommendations to designate critical

habitat. When determining which areas

are critical habitat, a primary source of

information should be the listing

package for the species. Additional

information may be obtained from a

recovery plan, articles in peer-reviewed

journals, conservation plans developed

by States and counties, scientific status

surveys and studies, biological

assessments, unpublished materials,

and expert opinion or personal

knowledge.

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 Riverside fairy shrimp,

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29387

we used the best scientific and

commercial data available. These

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 layers for Los Angeles,

Orange, Riverside, and San Diego

counties), data collected on U.S. Marine

Corps Air Station Miramar (Miramar)

and U.S. Marine Corps Base Camp

Pendleton (Camp Pendleton), and data

collected from reports submitted by

biologists holding section 10(a)(1)(A)

recovery permits. In addition,

information provided in comments on

the proposed designation and draft

economic analysis were evaluated and

considered in the development of this

final designation.

As stated earlier, Riverside fairy

shrimp occur in ephemeral pools and

ponds that may not be present

throughout a given year or from year to

year. Therefore, critical habitat includes

a mosaic of vernal pools, ponds, and

depressions currently supporting

Riverside fairy shrimp and vernal pool

vegetation. One area has been included

in which the current occupancy by

Riverside fairy shrimp is not known, but

which contains the primary constituent

elements for the species and is

considered essential to its conservation.

Primary Constituent Elements

In accordance with section 3(5)(A)(i)

of the Act and regulations at 50 CFR

424.12, in determining which areas to

designate as critical habitat, we are

required to 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

features 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 and

ecological distributions of a species.

The primary constituent elements for

the Riverside fairy shrimp are those

habitat components that are essential for

the primary biological needs of foraging,

sheltering, reproduction, and dispersal.

These primary constituent elements are

found in areas that support vernal pools

or other ephemeral ponds and

depressions and their associated

watersheds. The primary constituent

elements are: small to large pools with

moderate to deep depths that hold water

for sufficient lengths of time necessary

for Riverside fairy shrimp incubation

and reproduction, but not necessarily

every year; the associated watershed(s)

and other hydrologic features that

support pool basins and their related

pool complexes; 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. All

designated critical habitat areas contain

one or more of the primary constituent

elements for the Riverside fairy shrimp.

Criteria Used To Identify Critical

Habitat

In an effort to map areas essential to

the conservation of the species, we used

data on known Riverside fairy shrimp

locations and those vernal pools and

vernal pool complexes that were

identified in the Recovery Plan (Service

1998) as essential for the recovery of the

species, aerial photography at a scale of

1:24,000 (comparable to the scale of a

7.5 minute U.S. Geological Survey

Quadrangle topographic map), current

aerial photography prints, and

boundaries of approved habitat

conservation plans (HCPs). We then

evaluated those areas based on soil

types, the hydrology, watershed, and

topographic features including local

variation of topographic position (i.e.,

coastal mesas or inland valleys).

Following this evaluation, a 250-meter

(m) (0.16 mile (mi)) Universal

Transverse Mercator (UTM) grid was

overlaid on top of those vernal pool

complexes and their associated

watersheds to describe the unit

boundaries more precisely. Each unit of

the grid was evaluated to determine

whether it was appropriate to include in

the critical habitat designation. The

critical habitat units designated using

this technique encompass either

individual vernal pool basins or vernal

pool complexes and provide additional

assurances that watersheds and

hydrologic processes are captured and

maintained for this species. In those

cases where occupied vernal pools were

not specifically mapped in the Recovery

Plan (Service 1998), we relied on recent

scientific data to update the map

coverage. For the purpose of this final

determination, critical habitat units

have been described using UTM

coordinates derived from a 250-m (0.16-

mi) grid that approximated the

boundaries delineated from the digital

aerial photography.

We could not depend solely on

federally owned lands for critical

habitat designation as these lands are

limited in geographic location, size, and

habitat quality within the current range

of the Riverside fairy shrimp. In

addition to the federally owned lands,

we are designating critical habitat on

non-Federal public lands and privately

owned lands. All non-Federal lands

designated as critical habitat meet the

definition of critical habitat under

section 3 of the Act in that they are

within the geographical area occupied

by the species, are essential to the

conservation of the species, and may

require special management

considerations or protection. The longterm survival and conservation of

Riverside fairy shrimp is dependent

upon the protection and management of

existing occurrences, and the

maintenance of ecological functions

within these areas.

In defining critical habitat boundaries,

we made an effort 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 Riverside fairy

shrimp. Our 250-m (0.16 mi) UTM grid

minimum mapping unit was designed to

minimize the amount of development

along the urban edge included in our

designation. Existing features and

structures, such as buildings, roads,

railroads, urban development, and other

such developed features not containing

primary constituent elements, are not

considered critical habitat. Federal

actions limited to these areas would not

trigger a section 7 consultation, unless

they affect the species and/or the

primary constituent elements in

adjacent critical habitat.

Lands designated as critical habitat

for the Riverside fairy shrimp are

considered to be occupied by the

species with the exception of 12 ha (30

ac) within critical habitat Unit 2 in

which the occupancy by the Riverside

fairy shrimp is not known. The lands in

which the occupancy is not known

contain the primary constituent

elements for the species, have been

determined to be essential to the

conservation of the species, and are

under consideration as a

reestablishment site, if the species does

not occur there. Refer to the description

for Unit 2 for our justification as to why

this location is essential to the

conservation of the Riverside fairy

shrimp.

Critical Habitat Designation

The areas we are designating as

critical habitat currently provide all of

those habitat components necessary to

meet the primary biological needs of the

29388 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

Riverside fairy shrimp, as described in

the Recovery Plan (Service 1998), and

defined by the primary constituent

elements. The approximate area

encompassing designated critical habitat

by county and land ownership is shown

in Table 1. Critical habitat for the

Riverside fairy shrimp includes

approximately 2,790 ha (6,870 ac) in Los

Angeles, Orange, Riverside, San Diego,

and Ventura counties, California, and is

based on the geographic location of

vernal pools, soil types, and local

variation of topographic position (i.e.,

coastal mesas or inland valleys). Lands

proposed are under private, State, and

Federal ownership and divided into five

critical habitat units. A brief description

of each unit, and reasons for designating

it as critical habitat, are presented

below.

TABLE 1.—APPROXIMATE AREA ENCOMPASSING DESIGNATED CRITICAL HABITAT IN HECTARES (HA) (ACRES (AC)) BY

COUNTY AND LAND OWNERSHIP 1

County Federal land Local/state land Private land Total

Los Angeles ................................... 0 ha (0 ac) ..................... 0 ha (0 ac) ..................... 195 ha (480 ac) ............. 195 ha (480 ac)

Orange ........................................... 45 ha (110 ac) ............... 5 ha (10 ac) ................... 315 ha (780 ac) ............. 365 ha (900 ac)

Riverside ........................................ 0 ha (0 ac) ..................... 755 ha (1,865 ac) .......... 1,005 ha (2,490 ac) ....... 1,760 ha (4,355 ac)

San Diego ...................................... 320 ha (770 ac) ............. 0 ha (0 ac) ..................... 125 ha (305 ac) ............. 445 ha (1,075 ac)

Ventura ........................................... 0 ha (0 ac) ..................... 0 ha (0 ac) ..................... 25 ha (60 ac) ................. 25 ha (60 ac)

Total .................................... 365 ha (880 ac) ............. 760 ha (1,875 ac) .......... 1,665 ha (4,115 ac) ....... 2,790 ha (6,870 ac)

1Approximate hectares have been converted to acres (1 ha = 2.471 ac). Based on the level of imprecision of mapping at this scale, approximate hectares and acres have been rounded to the nearest 5.

Map Unit 1: Transverse Range Critical

Habitat Unit, Ventura and Los Angeles

counties, California (144 Ha (355 Ac))

The Transverse Range critical habitat

unit includes the vernal pool habitat

that is known to be occupied by the

Riverside fairy shrimp and associated

essential watershed which helps

maintain the integrity and water quality

of the vernal pool. These vernal pools

are located at Cruzan Mesa, Los Angeles

County, and the former Carlsberg Ranch,

Ventura County. All lands designated

within this unit are on private lands.

These vernal pools represent the

northern limit of occupied habitat for

the Riverside fairy shrimp and may have

genetic characteristics essential to the

overall long-term conservation of the

species (i.e., they may be genetically

different from more centrally located

populations) (Lesica and Allendorf

1995). Additionally, these vernal pools

are the last remaining vernal pools in

Los Angeles and Ventura counties

known to support this species. The

Recovery Plan for the Vernal Pools of

Southern California (Service 1998)

indicates that the conservation of the

vernal pool habitat and associated

watershed in this unit is essential to

allow for the maintenance and recovery

of the populations of Riverside fairy

shrimp in Los Angeles and Ventura

counties.

Map Unit 2: Los Angeles Basin-Orange

Management Area, Los Angeles and

Orange counties, California. (437 Ha

(1,080 Ac))

The Los Angeles coastal prairie unit

includes an approximately 13 ha (30 ac)

area within and adjacent to the El

Segundo Blue Butterfly Preserve, west

of Pershing Drive at the Los Angeles

International Airport that contains

vernal pool habitat and its associated

watershed essential to the conservation

of the Riverside fairy shrimp. This area

is, however, not known to be occupied

by the Riverside fairy shrimp. This unit

is the only suitable remnant of vernal

pool habitat (vernal pool basin and its

associated essential watershed) located

within the historical coastal prairie

landscape, which formerly extended

from Playa del Rey south to the Palos

Verdes Peninsula, an area of

approximately 96 km2 (37 mi2). This

landscape historically included the

federally endangered California Orcutt

grass (Orcuttia californica) and San

Diego button-celery (Eryngium

aristulatum var. parishii). This unit also

supports versatile fairy shrimp

(Branchinecta lindahli) and western

spadefoot toad (Scaphiopus

hammondii). Riverside fairy shrimp

cysts were first collected east of

Pershing Drive in 1997, but adult

shrimp have not been found to date,

likely due to the extensive disturbance

to the landscape, including the

introduction of fill material, changes in

water chemistry, modification of the

watersheds, and the resulting shortened

duration of water ponding. We are not

designating the area east of Pershing

Drive due to the extensive alteration of

the habitat that has occurred. However,

we are designating the area west of

Pershing Drive as critical habitat

because it contains vernal pool habitat

essential for the conservation of the

Riverside fairy shrimp. Considering the

extensive habitat available, populations

of Riverside fairy shrimp in this region

were likely robust and formed the core

population between the Cruzan Mesa

and Carlsberg Ranch pools (Unit 1), at

the northern end of the range of the

species, and the pool groups in central

and southern Orange County.

Conservation of the area west of

Pershing Drive is necessary for the

recovery of an isolated, formerly robust

population that may have genetic

characteristics important to the overall

long-term conservation of the species.

In Orange County, this critical habitat

unit includes the vernal pools and

vernal pool-like ephemeral ponds and

essential watershed lands at the Marine

Corps Air Station El Toro, Chiquita

Ridge, Tijeras Creek, Viejo parcel,

Saddleback Meadows, and along the

southern Orange County foothills. These

vernal pool habitats are the last

remaining vernal pools in Orange

County known to support this species

(58 FR 41384). The Orange County

vernal pool habitat and essential

associated watershed represent the vast

majority of Riverside fairy shrimp

habitat within this critical habitat unit.

In addition, the Orange County pools

represent a remnant complex of pools

and vernal pool habitat unique to the

Riverside fairy shrimp in southern

Orange County. The Riverside fairy

shrimp habitat in Orange County is

geographically distinct from other pools

within the species’ range and is

essential to the overall long-term

conservation of the species. Therefore,

as indicated in the Recovery Plan for the

Vernal Pools of Southern California

(Service 1998), the conservation of these

vernal pools and their associated

watersheds is essential to reduce the

risk of extinction through random and

natural events to Riverside fairy shrimp

populations in Orange County and

throughout its current range.

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29389

Map Unit 3: Western Riverside County

Critical Habitat Unit, Riverside County,

California (1,762 Ha (4,355 Ac))

The western Riverside County critical

habitat unit includes the vernal pool

basins and associated essential

watersheds on the Santa Rosa Plateau

and in Murrieta. These vernal pools and

pool complexes represent the eastern

limit of occupied Riverside fairy shrimp

habitat, unique vernal pool habitat, and

may have genetic characteristics

important to the overall long-term

conservation of the species (i.e., they

may be genetically different from more

centrally located populations) (Lesica

and Allendorf 1995). Pools within this

unit also support the federally

endangered California Orcutt grass

(Orcuttia californica) and vernal pool

fairy shrimp (Branchinecta lynchi).

These pools and their associated

watersheds are essential for the

conservation and recovery of the

Riverside fairy shrimp as indicated in

the Recovery Plan (Service 1998). This

unit includes two of the five remaining

populations of Riverside fairy shrimp in

Riverside County. A third population,

Skunk Hollow, is protected as part of an

approved mitigation bank that is within

the Rancho Bella Vista HCP area and as

part of the conservation measures

contained in the Assessment District

161 Subregional HCP. Of the remaining

two vernal complexes containing

Riverside fairy shrimp, one complex

consists of a series of stock ponds in

which the Riverside fairy shrimp was

discovered after the publication of the

proposed critical habitat designation.

The other complex, which includes a

basin (one of a series) adjacent to Lake

Elsinore in which the Riverside fairy

shrimp was found, was not identified as

essential in the Recovery Plan and was,

therefore, not included in this critical

habitat designation.

Map Unit 4: North San Diego County

Critical Habitat Unit, San Diego County,

California (372 Ha (920 Ac))

The north San Diego County critical

habitat unit includes essential vernal

pool habitat and associated watersheds

at Marine Corps Base Camp Pendleton

and one pool complex within the City

of Carlsbad. This unit encompasses

approximately 312 ha (770 ac) in nontraining areas within Camp Pendleton.

These include pool complexes and

lands within the associated watersheds

in the Wire Mountain Housing Area,

within the Cockleburr Sensitive Area,

and lands leased to the State of

California and included within San

Onofre State Park. The Recovery Plan

(Service 1998) includes these pool

complexes and their watersheds within

the San Diego North Coastal Mesas

Management Areas. This critical habitat

unit is included in the designation

because the vernal pool habitat and

associated watersheds on Marine Corps

Base Camp Pendleton represent one of

the largest populations of the Riverside

fairy shrimp and vernal pool habitat in

southern California. These parcels of

land are being designated as critical

habitat because they represent unique

vernal pool habitat and are essential to

the long-term conservation of the

Riverside fairy shrimp as identified in

the Recovery Plan (Service 1998).

Within the jurisdiction of the City of

Carlsbad, one vernal pool complex is

located at the Poinsettia Lane train

station. This complex and its watershed

are associated with a remnant parcel of

coastal terrace habitat. These lands

contain unique vernal pool habitat and

are essential to the conservation of the

Riverside fairy shrimp in northern San

Diego County, as indicated in the

Recovery Plan (Service 1998).

Map Unit 5: South San Diego County

Critical Habitat Unit, San Diego County,

California (63 Ha (155 Ac))

In the proposed rule (65 FR 57136),

we had six units and this unit was

known as unit 6. However, we deleted

proposed unit 5 (Marine Corps Air

Station, Miramar) from the final rule, so

this unit has changed from unit 6 to unit

5.

The South San Diego County critical

habitat unit is composed of private and

Federal lands and includes the

ephemeral basin and its associated

watershed along the United StatesMexico border. This ephemeral basin is

on Federal lands (Immigration and

Naturalization Service (INS)) and

represents the southern limit of

occupied habitat for the Riverside fairy

shrimp in the United States. This basin

is identified in the Recovery Plan

(Service 1998) as necessary for the

conservation of the Riverside fairy

shrimp in southern San Diego County

by providing the remnant vernal pool

habitat unique to this species. The

protection provided through the

designation of critical habitat will assist

in the recovery efforts identified in the

Recovery Plan.

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 do not destroy or

adversely modify 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.

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 action

agency in eliminating conflicts that may

be caused by the proposed action. The

conservation recommendations in a

conference report are advisory. We may

issue a formal conference report, if

requested by the Federal action agency.

Formal conference reports include an

opinion that is prepared according to 50

CFR 402.14, as if the species was listed

or critical habitat designated. We may

adopt the formal conference report as

the biological opinion when the species

is listed or critical habitat designated, if

no substantial new information or

changes in the action alter the content

of the opinion (see 50 CFR 402.10(d)).

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 destroy or 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

29390 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

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 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 or conference with us on

actions for which formal consultation

has been completed, if those actions

may affect designated critical habitat or

adversely modify or destroy proposed

critical habitat.

Activities on Federal lands that may

affect the Riverside 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 of Engineers) under section 404

of the Clean Water Act (CWA), a section

10(a)(1)(B) permit from the Service, 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 destroy or adversely modify such

habitat, or that may be affected by such

designation. Activities that destroy or

adversely modify critical habitat include

those that appreciably reduce the value

of critical habitat for both the survival

and recovery of the Riverside fairy

shrimp. 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, and 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. Therefore,

designation of critical habitat in areas

occupied by the Riverside fairy shrimp

is not likely to result in a regulatory

burden above that already in place due

to the presence of the listed species.

Federal agencies already consult with

us on activities in areas occupied by the

species to ensure that their actions do

not jeopardize the continued existence

of the species. These actions include,

but are not limited to:

(1) Any activity, including the

regulation of activities by the Corps of

Engineers under section 404 of the CWA

or activities carried out by or licensed

by the U.S. Environmental Protection

Agency, that could alter the watershed,

water quality or quantity to an extent

that water quality becomes unsuitable to

support Riverside fairy shrimp, or any

activity that significantly affects the

natural hydrologic function of the

vernal pool system and/or ephemeral

pond or depression;

(2) Road construction and

maintenance, right-of-way designation,

and regulation of agricultural activities,

or any activity funded or carried out by

the Department of Transportation or

Department of Agriculture that results

in discharge of dredged or fill material,

excavation, or mechanized land clearing

of ephemeral and/or vernal pool basins;

(3) Regulation of airport improvement

or maintenance activities by the Federal

Aviation Administration;

(4) Military training and maneuvers

on Camp Pendleton and Miramar, and

other applicable Department of Defense

(DOD) lands;

(5) Construction of roads and fences

along the international border with

Mexico, and associated immigration

enforcement activities by the INS; and

(6) Licensing of construction of

communication sites by the Federal

Communications Commission.

Any of the above activities that

appreciably diminish the value of

critical habitat to the degree that they

affect the survival and recovery of the

Riverside fairy shrimp may be

considered an adverse modification of

critical habitat. We note that such

activities may also jeopardize the

continued existence of the species.

All lands designated as critical habitat

are within the current geographic range

of the Riverside fairy shrimp, and are

occupied by the species, and/or are

likely to be used by the species, whether

for foraging, breeding, growth of larvae,

dispersal, migration, genetic exchange,

and sheltering, with the exception of the

lands within Unit 2. Lands within Unit

2 are not currently known to be

occupied by the Riverside fairy shrimp.

Federal agencies already consult with us

on activities in areas currently occupied

by the species, or if the species or vernal

pool habitat 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 significant additional

regulatory protection or burden will

result from this critical habitat

designation.

If you have questions regarding

whether specific activities will

constitute 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 NE. 11th Ave, Portland, OR 97232

(telephone 503/231–2063; facsimile

503/231–6243).

Relationship of Critical Habitat to

Military Lands

Exclusions Under Section 3(5)(A)

The Sikes Act Improvement 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

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29391

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 that habitat on 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.

Therefore, we do not include these

areas in critical habitat designations if

they meet the following three criteria:

(1) A current INRMP 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, by providing for periodic

monitoring and revisions as necessary.

If all of these criteria are met, then the

lands covered under the plan would not

meet the definition of critical habitat.

We evaluated INRMPs for DOD land

that was within the proposed critical

habitat to determine whether any

INRMPs met the special management

criteria. To date, Miramar is the only

DOD installation that has completed a

final INRMP that provides for sufficient

conservation management and

protection for vernal pools and the

Riverside fairy shrimp. We reviewed

this plan and determined that it

addresses and meets the three criteria.

Therefore, lands on Miramar (proposed

Critical Habitat Unit 5) do not meet the

definition of critical habitat, and they

have not been included in this final

designation of critical habitat for the

Riverside 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. We have considered whether it

is appropriate to exclude any DOD lands

under section 4(b)(2).

In contrast to Miramar, Camp

Pendleton has not yet completed their

INRMP. Camp Pendleton has several

substantial vernal pool complexes that

support the Riverside fairy shrimp and

are essential to the conservation of the

species. In light of these factors, we

proposed 2,295 ha (5,670 ac) on Camp

Pendleton as critical habitat for the

Riverside fairy shrimp.

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 Camp

Pendleton 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.

To date, as the INRMP for Camp

Pendleton has not yet been completed

and approved, these lands meet the

definition of critical habitat.

Nevertheless, we have determined that

it is appropriate to exclude training

areas on Camp Pendleton from this

critical habitat designation under

section 4(b)(2). The main benefit of this

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 upland activities.

These activities include military

training, maintenance, fire management,

real estate, and recreation programs.

Upon completion, this consultation will

address the 93 percent of that base not

included in our 1995 opinion

concerning their programmatic

conservation plan for riparian and

estuarine/beach ecosystems (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, the consultation has been

extended and is on-going.

The proposed critical habitat

designation included about 2,295 ha

(5,670 ac), or about 10 percent of the

base. If critical habitat is designated

within the training areas on Camp

Pendleton for the Riverside fairy

shrimp, the Marines believe they would

be compelled 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. As a result, the Camp

Pendleton’s utility as a Marine training

site could be limited.

In contrast, the benefits of designating

critical habitat within the training areas

on Camp Pendleton 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 Camp Pendleton

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 base. In

addition, the Marines have a statutory

obligation under the Sikes Act to

complete an INRMP for Camp

Pendleton. As noted above, we expect

that, when completed and adopted, this

INRMP will provide equal or greater

protection to Riverside fairy shrimp

habitat on Camp Pendleton than a

critical habitat designation.

We conclude that the benefits of

excluding training areas on Camp

Pendleton exceed the benefits of

including them in the critical habitat

designation. Further, we have

determined that excluding the training

areas will not result in the extinction of

the Riverside 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 Riverside fairy

shrimp on Camp Pendleton. This

exclusion does not apply to the vernal

pool complexes in the Wire Mountain

Housing Area, within the Cockleburr

Sensitive Area, and lands leased to the

State of California and included within

San Onofre State Park. Because these

lands are used minimally, if at all, by

the Marines for training, the 312 ha (770

ac) of lands proposed on Camp

Pendleton and within the San Onofre

State Park are retained in the final

designation.

Relationship of Critical Habitat to

Habitat Conservation Plans

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 legally operative

HCPs, for which the Riverside fairy

shrimp is a covered species and take has

been authorized, 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

29392 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

habitat that may affect it require

consultation under section 7 of the Act.

Such consultation would ensure that

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

covered species will normally be

protected in reserves and other

conservation lands by the terms of the

HCPs and their Implementing

Agreements. These HCPs and

Implementing Agreements include

management measures and protections

for conservation lands designed 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, unless critical habitat

has already been designated within the

proposed plan area, it will look at the

very similar concept of jeopardy to the

listed species in the plan area. Because

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

through 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 longterm 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

education benefits of critical habitat,

including informing the public of areas

that are important for 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. They 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.

Most regional plans benefit many

species, both listed and unlisted.

Imposing an additional regulatory

review after HCP completion could be

viewed as a disincentive to those

developing HCPs. Excluding HCPs

provides us with an opportunity to

streamline regulatory compliance 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, and the benefits of excluding

HCPs from designation to be 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

approved 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 which the Riverside

fairy shrimp is a covered species on a

case-by-case basis to determine whether

the benefits of excluding these

particular areas outweigh the benefits of

including them.

Section 4(b)(2) Evaluation of Specific

HCPs

We expect that critical habitat may be

used as a tool to identify those areas

essential for the conservation of the

species, and we will encourage

development of HCPs for such areas on

non-Federal lands. Habitat conservation

plans currently under development are

intended to provide for protection and

management of habitat areas essential

for the conservation of the Riverside

fairy shrimp, while directing

development and habitat modification

to nonessential areas of lower habitat

value.

Only HCPs within the boundaries of

the proposed critical habitat units are

discussed herein. Those approved and

legally operative HCPs that provide

coverage and incidental take approval

for the Riverside fairy shrimp have been

excluded from this designation.

A number of habitat planning efforts

have been completed within the range

of the Riverside fairy shrimp. Principal

among these are the San Diego Multiple

Species Conservation Program (MSCP)

in San Diego County, the Rancho Bella

Vista HCP, and the Assessment District

161 Subregional HCP in Riverside

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County. The MSCP, through its subarea

plans, provides conservation measures

for the Riverside fairy shrimp as a

covered species, although authorization

for take, should any be needed, would

come from a subsequent permitting

process (typically through a section 7

consultation with the Corps of

Engineers). The MSCP provides that the

remaining Riverside fairy shrimp habitat

within the Multiple Habitat Planning

Area (MHPA) should be avoided to the

maximum extent practicable.

Unavoidable impacts to this remaining

area of habitat are to be minimized and

mitigated to achieve no net loss of

wetland function and value, and to

provide additional protective measures,

including adaptive management,

contained in the MSCP.

The Rancho Bella Vista HCP planning

area includes a reserve established as a

mitigation bank for the vernal pool that

contains the Riverside fairy shrimp

(Skunk Hollow), and the HCP includes

the Riverside fairy shrimp as a covered

species. The mitigation bank agreement,

as confirmed in the HCP, provides

management for the pool and watershed

in perpetuity. The Riverside fairy

shrimp is also a covered species under

Assessment District 161 Subregional

HCP, and this HCP provides for the

protection and conservation of the

remainder of Skunk Hollow’s

watershed.

Consequently, we find that 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 implementing

agreements for the approved HCPs, and

providing for more established and

cooperative partnerships for future

conservation efforts.

In summary, the benefits of including

these approved HCPs in critical habitat

for the Riverside fairy shrimp include

increased educational benefits and

minor additional management

protections and measures. The benefits

of excluding these HCPs from

designated critical habitat for the

Riverside fairy shrimp include

additional conservation measures for

this 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.

Therefore, we believe the benefits of

exclusion 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

determined that the approved HCPs will

not jeopardize the continued existence

of the Riverside fairy shrimp, which

means that they will not appreciably

reduce the likelihood of the survival

and recovery of the species.

We have not excluded the NCCP/HCP

for the Central/Coastal Orange County

subregion. This plan provides only

conditional coverage for the Riverside

fairy shrimp. Riverside fairy shrimp in

vernal pool habitats that are highly

degraded and/or artificially created are

a covered species and take is authorized

under the HCP. However, Riverside

fairy shrimp in non-degraded, natural

vernal pool habitats are not considered

covered species under the HCP, and

take, should any be needed, can be

authorized only under a separate

permitting process (typically through a

section 7 consultation with the Corps of

Engineers). Because the natural vernal

pools within the Central/Coastal Orange

County subregion that are considered to

be high-quality habitat for the Riverside

fairy shrimp are not covered by the

current HCP, the benefits from

designating this area as critical habitat

are not outweighed by the benefits

provided by the HCP. Therefore, we are

including the natural vernal pools at the

Viejo parcel, Tijeras Creek, and Marine

Corps Air Station El Toro in this final

critical habitat designation.

HCPs currently under development

are intended to provide for the

protection and management of habitat

areas essential for the conservation of

the Riverside fairy shrimp, while

directing development and habitat

modification to areas of lower habitat

value. The HCP development process

provides an opportunity for more

intensive data collection and analysis

regarding the use of particular habitat

areas by the Riverside 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

fully 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. We believe and fully

expect that our analyses of these

proposed HCPs and proposed permits

under section 7 will show that covered

activities carried out in accordance with

the provisions of the HCPs and

biological opinions will not result in

destruction or adverse modification of

critical habitat.

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 Riverside

fairy shrimp, and appropriate

conservation management actions.

Several HCP efforts are now under way

that address listed and nonlisted species

in areas within the range of the

Riverside fairy shrimp that we are

designating as critical habitat. The take

minimization and mitigation measures

provided under these HCPs are expected

to protect the essential habitat in this

rule and provide for the conservation of

the covered species. Furthermore, we

will complete intra-service consultation

on our issuance of section 10(a)(1)(B)

permits for these HCPs to ensure permit

issuance will not destroy or adversely

modify critical habitat. If an HCP that

includes the Riverside fairy shrimp 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.

Should additional information

become available that changes our

assessment 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 the designation accordingly.

Similarly, if new information indicates

any of these areas should not be

included in the designated critical

habitat because they no longer meet the

definition of critical habitat, we may

revise this final rule. 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 September 21, 2000, proposed

rule (65 FR 57136), 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 as provided in the proposed

rule. The first comment period closed

on November 20, 2000. The comment

period was reopened from February 28,

2001, to March 30, 2001 (66 FR 12754),

to allow for additional comments on the

proposed rule, and comments on the

draft economic analysis of the proposed

critical habitat. We accepted comments

received from September 21, 2000, to

29394 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

March 30, 2001, and entered them into

the administrative record for the rule.

We contacted all appropriate State

and Federal agencies, county

governments, elected officials, and other

interested parties and invited them to

comment. In addition, we invited public

comment through the publication of

notices in the following newspapers in

southern California: San Diego Union

Tribune and Riverside Press Enterprise

on September 25, 2000, and the Los

Angeles Times on September 28, 2000.

There were no requests for a public

hearing.

We requested four biologists, who

have familiarity with the Riverside 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, and two did

not respond.

We received a total of 632 written

comments during the two comment

periods. Comments were received from

1 Federal agency, 2 local agencies, and

617 private organizations or individuals.

We reviewed all comments received for

substantive issues and new information

regarding critical habitat and the

Riverside fairy shrimp. Of the 632

comments we received, 621 commenters

supported the designation of critical

habitat for the Riverside fairy shrimp, 7

were opposed to it, and 4 provided

information or declined to oppose or

support the designation. Similar

comments were grouped 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 scale of the

proposed critical habitat is overly broad,

resulting in vague unit boundaries.

Several commenters questioned the

biological justification for proposing

critical habitat for the Riverside fairy

shrimp using such a landscape-scale

approach when more precise

information is available for use by the

Service. Also, some commenters voiced

concern that their property was within

proposed critical habitat boundaries

even though the land contained no

Riverside fairy shrimp or primary

constituent elements.

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.

We recognize that not all parcels of

land designated as critical habitat will

contain the habitat components

essential to the conservation of the

Riverside fairy shrimp. Due to the time

constraints imposed by the court, and

the absence of detailed map information

during the preparation of the proposed

determination, we used a 250-m (0.16-

mi) UTM grid to delineate the critical

habitat boundaries. Due to the mapping

scale, some areas not essential to the

conservation of the Riverside fairy

shrimp were included within the

boundaries of proposed critical habitat,

such as towns, housing developments,

or other developed lands unlikely to

provide habitat for the Riverside fairy

shrimp. Because these areas do not

contain one or more of the primary

constituent elements for the species,

Federal actions limited to those areas

will not trigger a section 7 consultation,

unless they affect the species and/or

primary constituent elements in

adjacent critical habitat.

(2) Comment: The proposal does not

provide adequate notice of location of

critical habitat units to impacted

landowners as per the 1978

amendments to the Act, causing a

burden to landowners who must

determine which portions of their land

contain critical habitat.

Our Response: We identified specific

areas in the proposed determination that

are referenced by UTM coordinates,

which are found on standard

topographic maps. We also made

available, during the public comment

period at the Carlsbad Fish and Wildlife

Office, a public viewing room where the

proposed critical habitat units,

superimposed on 7.5 minute

topographic maps, could be inspected.

Furthermore, we distributed geographic

data and maps of the proposed critical

habitat to all 34 individuals,

organizations, local jurisdictions and

State and Federal agencies that

requested them. We believe the

information made available to the

public was sufficiently detailed to allow

for determination of critical habitat

boundaries. This final rule contains the

legal descriptions of areas designated as

critical habitat required under 50 CFR

424.12(c). The accompanying maps are

for illustration purposes only. If

additional clarification is necessary,

contact the Carlsbad Fish and Wildlife

Office (see ADDRESSES section).

(3) Comment: The descriptions of the

primary constituent elements of critical

habitat for the Riverside fairy shrimp are

vague.

Our Response: The description of the

primary constituent elements for the

Riverside fairy shrimp is based on the

best available scientific and commercial

data regarding the species, including a

compilation of data from peer-reviewed

published literature, unpublished or

non-peer-reviewed survey or research

reports, and biologists knowledgeable

about the Riverside fairy shrimp and its

habitat. The primary constituent

elements, as described, represent our

best estimate of what habitat

components are essential for the

conservation of the species.

(4) Comment: The proposed rule

inappropriately uses a ‘‘recovery

standard’’ to determine critical habitat,

resulting in the inclusion of large areas

in which the Riverside fairy shrimp is

not known to occur or have occurred.

The Service ignores the intent of

Congress to designate only occupied

areas and those areas essential to a

species’ conservation, and the Service

has failed to determine if these

unoccupied areas are essential to the

Riverside fairy shrimp.

Our Response: The definition of

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

Act includes ‘‘(i) 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.’’ The term ‘‘conservation,’’ as

defined in section 3(3) of the Act, means

‘‘to use and the use of all methods and

procedures which are necessary to bring

any endangered species or threatened

species to the point at which the

measures provided pursuant to the Act

are no longer necessary’’ (i.e., the

species is recovered and removed from

the List of Endangered and Threatened

Species).

In proposing critical habitat for the

Riverside fairy shrimp, we identified

those areas that are essential to the

conservation of this species. The areas

we proposed to designate as critical

habitat provide all of those habitat

components essential for the Riverside

fairy shrimp as described in the

Recovery Plan (Service 1998). We did

not include all areas currently occupied

by the Riverside fairy shrimp, but

designated those areas that possess large

populations, have unique ecological

characteristics, and/or represent the

historic geographic areas where the

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29395

Riverside fairy shrimp can be reestablished.

The Recovery Plan (Service 1998)

detailed the efforts required to meet the

recovery needs of the Riverside fairy

shrimp, and provides a description of

habitat attributes that are essential to the

survival and recovery of the species.

After weighing the best available

information, including the Recovery

Plan, we conclude that the areas

designated by this final rule, including

areas that were not known to be

occupied at the time the species was

listed, are essential for the recovery of

the species and subsequent removal

from the List of Endangered and

Threatened Species.

(5) Comment: The lands that are being

proposed as critical habitat for the

Riverside fairy shrimp represent a gross,

unsubstantiated increase from the

amount of habitat that was described in

the final listing rule as being available

for this species. In addition, the increase

in number of known populations of

Riverside fairy shrimp since listing

indicates that designation of critical

habitat may be unnecessary or

unwarranted.

Our Response: In the August 3, 1993,

final listing rule for the Riverside fairy

shrimp (58 FR 41384), we stated that

there were four occupied pools near

Temecula in Riverside County,

encompassing 96 km2 (37 mi2)

(approximately 9,713 ha (24,000 ac)),

one population in Orange County (area

not quantified), an unspecified number

of occupied vernal pools at (then) Naval

Air Station (NAS) Miramar and Otay

Mesa in San Diego County, and two

locations in Baja California, Mexico.

Since the listing of this species,

scientific and commercial studies on the

distribution, life history, and ecology of

the Riverside fairy shrimp have been

conducted and a recovery plan covering

the species published. We now

recognize that conservation of the

Riverside fairy shrimp depends not only

on specific vernal pools, but also on

vernal pool complexes, the watersheds

immediately surrounding them, and the

hydrological processes associated with

those watersheds.

Further, the known geographic range

of the species has been expanded based

on the identification of previously

undocumented Riverside fairy shrimp

populations in Los Angeles, Orange,

Riverside, San Diego, and Ventura

counties. Many of these previously

undocumented occurrences consist of

small, isolated pools varying in

condition from highly degraded to high

quality. Large complexes of vernal pools

containing Riverside fairy shrimp were

also discovered on Camp Pendleton.

These complexes, many of which are

interconnected, contain the highest

concentration of Riverside fairy shrimp

within the species’ range, with the pools

and adjoining watersheds encompassing

approximately 2,295 ha (5,670 ac).

The proposed determination of

critical habitat for the Riverside fairy

shrimp (65 FR 57136) identified

approximately 4,880 ha (12,060 ac) of

vernal pools and their adjacent

watersheds essential to the conservation

of the species that was proposed as

critical habitat. This value is less than

half of the lands identified as being

occupied in Riverside County in the

final listing rule. This final

determination designates 2,790 ha

(6,870 ac) as critical habitat.

Even though additional populations

of the Riverside fairy shrimp have been

discovered in the time since the species

was listed, the factors that contributed

to the decline of the species and its

subsequent listing as federally

endangered are still affecting vernal

pool habitat and the species. Because

these factors continue to affect the

Riverside fairy shrimp and its habitat,

the species still warrants protection

under the Act, including the designation

of lands essential to its conservation as

critical habitat.

(6) Comment: No scientific data were

provided to indicate how the Service

determined the extent of watersheds or

the hydrological processes that

comprise critical habitat.

Our Response: As described in the

section titled ‘‘Criteria Used to Identify

Critical Habitat,’’ above, we compiled

data on known Riverside fairy shrimp

locations and those vernal pools and

vernal pool complexes that were

identified in the Recovery Plan as

essential for the stabilization and

recovery of the species. Second, we

evaluated the hydrology, watershed, and

topographic features of the surrounding

areas to identify the drainages, or

watersheds feeding the pools using our

GIS system. Third, based on this

evaluation, a 250-m (0.16-mi) UTM grid

was overlaid on top of those vernal pool

complexes and their associated

watersheds using GIS to describe the

unit boundaries more precisely. Each

unit of the grid was evaluated to

determine whether it was appropriately

included as critical habitat. The critical

habitat units designated using this

technique encompassed individual

vernal pool basins or vernal pool

complexes to ensure that watersheds

and hydrologic processes were captured

and maintained for this species. Where

occupied vernal pools were not

specifically mapped in the Recovery

Plan (Service 1998), we relied on recent

scientific data to update the map

coverage.

Issue 2: Policy and Regulations

(7) Comment: In response to the

Service’s request that the public

comment on critical habitat designation

relative to currently approved and

future HCPs, many commenters stated

that critical habitat should be retained

within the boundaries of approved

HCPs. They felt that HCPs cannot be

viewed as a functional substitute for

critical habitat designation, and the

approved HCPs provided inadequate

protection and special management

considerations for the species and their

habitat. Other commenters supported

the exclusion of approved HCPs from

critical habitat designation, and several

of these same commenters wanted

pending HCPs to be excluded as well.

They supported their recommendations

by asserting that landowners will be

reluctant to participate in HCPs unless

they have incentives, including the

removal of critical habitat from HCP

boundaries.

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) of

the Act 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 designation for

all approved and legally operative HCPs

in which the Riverside fairy shrimp is

a covered species and the plan provides

for its long-term conservation. These

include the San Diego MSCP in San

Diego County and the Rancho Bella

Vista HCP and Assessment District 161

Subregional HCP in Riverside County.

We anticipate that future HCPs in the

range of the Riverside 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 and

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

29396 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

minimizing and mitigating 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 analyses

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

Riverside fairy shrimp. The take

minimization and mitigation measures

provided under these HCPs are expected

to adequately protect the essential

habitat lands designated as critical

habitat in this rule, such that the value

of these lands for the survival and

recovery of the Riverside fairy shrimp is

not appreciably diminished through

direct or indirect alterations. If an HCP

that addresses the Riverside 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.

The designation of critical habitat

should not deter participation in the

NCCP or HCP processes. Approvals

issued under these processes include

assurances of no additional mitigation

through the HCP No Surprises

regulation (63 FR 8859). The

development of new HCPs or NCCPs

should not be affected by designation of

critical habitat primarily because we

view the standards of jeopardy for listed

species and of adverse modification for

critical habitat as being virtually

identical. We discuss these standards in

detail in the ‘‘Section 7 Consultation’’

portion of this document.

(8) Comment: The Service violated the

National Environmental Policy Act of

1969 (NEPA) by failing to prepare an

Environmental Assessment (EA) and/or

an Environmental Impact Statement

(EIS).

Our Response: We have 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 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).

(9) Comment: The Service violated the

Administrative Procedure Act by not

making available for public review and

comment the scientific data relied on in

formulating the proposed rule, and not

providing a complete list of references

or access to unpublished data despite

requests from interested parties.

Our Response: In the proposed rule,

we stated that all supporting

documentation, such as the references

and unpublished data used in the

preparation of the proposed rule, would

be available for public inspection at the

Carlsbad and Ventura Fish and Wildlife

Offices. A public viewing room was

made available at the Carlsbad Fish and

Wildlife Office where the proposed

critical habitat units, superimposed on

7.5 minute topographic maps, could be

inspected. In addition, we had 34

requests for maps or GIS data and we

responded to each request in a timely

manner by providing copies of the maps

and/or digital data. We believe we

provided information pertaining to the

proposed critical habitat to all those

who requested it.

(10) Comment: Comments received

from the Marines requested that their

lands be excluded from the critical

habitat designation because protections

and management afforded the Riverside

fairy shrimp by Miramar’s INRMP,

pursuant to the Sikes Act, was

sufficient, so the lands on that base did

not require special management or

protection, and did not meet the

definition of critical habitat. In addition,

the Marines requested that Camp

Pendleton be excluded from critical

habitat because of its existing

programmatic, habitat-based

management efforts, which already

ensure long-term conservation of the

species. Furthermore, designation of

critical habitat would detrimentally

impact the Marines’ capability to

perform military missions. Other

commenters felt that: (a) The vernal

pools on the bases are essential for the

conservation of the species; (b) no

evidence exists that training activities

on Camp Pendleton would be

significantly limited, especially

considering the small amount of land

within the proposed critical habitat that

actually contains primary constituent

elements; and (c) Miramar’s INRMP is a

guidance document only and does not

provide the special management or

protection for the Riverside fairy

shrimp.

Our Response: We agree that INRMPs

provide special management for 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 conservation benefit to the

species; (2) the plan must provide

assurances that the conservation

management strategies will be

implemented; and (3) the conservation

management strategies will be effective

and provide for periodic monitoring and

revisions as necessary.

To date, Miramar is the only DOD

installation that has completed a final

INRMP that provides for sufficient

conservation management and

protection for the Riverside fairy

shrimp. We have reviewed the plan and

have determined that it addresses and

meets the three criteria. Therefore, lands

on Miramar (proposed Critical Habitat

Unit 5) do not meet the definition of

critical habitat, and have not been

included in this final designation of

critical habitat for the Riverside fairy

shrimp.

Additionally, we have determined

that it is appropriate to exclude training

areas on Camp Pendleton from this

critical habitat designation under

section 4(b)(2) of the Act. We have

concluded that the benefits of excluding

training areas on Camp Pendleton

exceed the benefits of including them in

the critical habitat designation. Further,

we have determined that excluding the

training areas will not result in the

extinction of the Riverside 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

Riverside fairy shrimp on Camp

Pendleton. This exclusion does not

apply to vernal pool complexes in the

Wire Mountain Housing Area, within

the Cockleburr Sensitive Area, and

lands leased to the State of California

and included within San Onofre State

Park. Because these lands are used

minimally, if at all, by the Marines for

training, the 312 ha (770 ac) of lands

proposed on Camp Pendleton and

within the San Onofre State Park are

retained in the final designation.

Please refer to the Exclusions Under

Section 4(b)(2) section of this rule for a

more detailed discussion of the

exclusion of the training areas on Camp

Pendleton from this final critical habitat

designation.

(11) Comment: A number of

commenters requested additional areas

be designated as critical habitat,

including all vernal pools identified in

the Recovery Plan (Service 1998) and

other lands, because these areas are

needed for the conservation of the

Riverside fairy shrimp.

Our Response: The Recovery Plan for

the Vernal Pools of Southern California

(Service 1998), discusses vernal pool

complexes and pools, their distribution,

and known occupancy by federally

listed species at the time of the plan’s

publication. Not all vernal pools

discussed in the plan are known to be

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29397

occupied by the Riverside fairy shrimp,

or considered to be essential to the

conservation of the Riverside fairy

shrimp. Only those vernal pool habitats

that are essential to the conservation of

Riverside fairy shrimp were included in

the critical habitat designation for the

Riverside fairy shrimp.

(12) Comment: A number of

commenters identified specific areas

that they thought should not be

designated as critical habitat. For

example, one commenter does not

believe the Moorpark vernal pool is

essential to the conservation of the

Riverside fairy shrimp because it is 40

km (25 mi) from the nearest population,

it is the only population known in

Ventura County, and in the proposed

rule, there is no connection made

between the site and the conservation of

the species.

Our Response: Where site-specific

information 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, and made a determination as to

whether modifications to the proposal

were appropriate. We excluded lands

from the final designation that we

determined to be nonessential to the

conservation of the Riverside fairy

shrimp or located within an approved

HCP for this species. We included lands

in the final designation that we

considered essential and which did not

have special management sufficient for

the species’ conservation.

The isolation of the Moorpark vernal

pool is not unique. Other than the

individual pools in a complex of vernal

pools, most vernal pools are isolated

from each other by topography and

hydrology. This isolation does not

diminish the value of individual pools

to the conservation of the Riverside fairy

shrimp. In fact, and as the commenter

notes, the Moorpark vernal pool is at the

northwestern edge of the Riverside fairy

shrimp distribution. Conservation

biologists have demonstrated that

populations at the edge of a species’

distribution can be important sources of

genetic variation and represent the best

opportunity for colonization or recolonization of unoccupied vernal pools

and, thus, long-term conservation.

These outlying populations may be

genetically divergent from populations

in the center of the range and, therefore,

may have genetic characteristics that

would allow adaptation in the face of

environmental change. Such

characteristics may not be present in

other parts of the species’ range (Lesica

and Allendorf 1995). Considering these

factors, the designation of the Moorpark

vernal pool as critical habitat for the

Riverside fairy shrimp meets the

criterion defined in section 3(5)(A)(i) of

the Act that critical habitat includes

specific areas within the geographic

range of the species on which are found

the physical and biological features

essential to the conservation of the

species.

(13) Comment: The proposed

boundary of critical habitat at the

Lennar property is incorrect because it

excludes portions of the watershed and

includes areas that are outside of the

watershed.

Our Response: We reviewed the

boundaries of the vernal pool containing

the Riverside fairy shrimp and the

proposed critical habitat relative to the

project/property boundaries submitted

to us on behalf of Lennar-Moorpark

LLC. The proposed critical habitat unit

consists of four 250-m (0.16-mi) UTM

grid squares that intersect in the center

of the vernal pool. Therefore, any

revisions to our mapping of the Unit

would result in the removal of portions

of the vernal pool and its watershed.

As indicated earlier in this

determination, in defining critical

habitat boundaries, we made an effort 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 Riverside fairy

shrimp. Our 250-m (0.16-mi) UTM grid

minimum mapping unit was designed to

minimize the amount of development

along the urban edge included in our

designation. However, this minimum

mapping unit does not exclude all

developed areas, such as buildings,

roads, aqueducts, railroads, airports,

other paved areas, lawns, and other

lands unlikely to contain the primary

constituent elements. Federal actions

limited to these areas would not trigger

a section 7 consultation, unless they

affect the species and/or the primary

constituent elements in adjacent critical

habitat.

(14) Comment: The construction of

ponds west of Pershing Drive may

attract birds, which could result in a

wildlife hazard by increasing the threat

of aircraft collisions with birds.

Our Response: We are in negotiations

with Los Angeles World Airports on

restoring vernal pool habitat west of

Pershing Drive near Los Angeles

International Airport (LAX), and using

dormant Riverside fairy shrimp cysts

that occur east of Pershing Drive to

innoculate the new pools. While we

understand the safety concerns

regarding birds and aircraft collisions,

we do not believe that restoring this

vernal pool habitat will increase the

amount of wildlife in the area,

especially with the close proximity of

the proposed vernal pools and LAX to

the Pacific Ocean.

Issue 3: Economic Issues

(15) Comment: The Service did not

provide for adequate public notice of

the proposed rule and sufficient

opportunity for public comment.

Additionally, the proposed rule was not

accompanied by an economic analysis

as required by law.

Our Response: We published the

proposed rule to designate critical

habitat for the Riverside fairy shrimp on

September 21, 2000 (65 FR 57136), and

accepted comments from the public for

60 days, until November 20, 2000. We

contacted all appropriate State and

Federal agencies, county governments,

elected officials, and other interested

parties and invited them to comment on

the proposed rule. In addition, we

invited public comment through the

publication of notices in the San Diego

Union Tribune and Riverside Press

Enterprise on September 25, 2000, and

the Los Angeles Times on September 28,

2000. We published a notice in the

Federal Register on February 28, 2001

(66 FR 12754), announcing the

availability of the draft economic

analysis and opening a public comment

period from February 28, 2001, to March

30, 2001, to allow for comments on the

draft economic analysis and additional

comments on the proposed

determination itself. We provided

notification of the draft economic

analysis through telephone calls, 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

Fish and Wildlife Office internet site

following the draft’s release on February

28, 2001. Because of the court-ordered

time frame, we were not able to extend

the second comment period or open an

additional public comment period.

(16) Comment: Within the proposed

rule, there are assumptions that the rule

is not expected to result in any

restrictions in addition to those

currently in place.

Our Response: In the proposed rule

and draft economic analysis, we

indicated that we did not expect that the

designation of critical habitat would

provide significant additional regulatory

or economic burdens or restrictions

incremental to those afforded the

species pursuant to the Act. This

assertion is based on the regulatory

protections afforded vernal pools and

the federally listed species that occur

29398 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

within them by the Corps of Engineers

(Corps) pursuant to section 404 of the

CWA and section 7 of the Act.

Following a review of our consultation

history with the Corps, it appears that

the Corps has consulted with us on

every project that may have affected

vernal pools for which they have issued

permits. Because of this consultation

history with the Corps, we do not

believe that critical habitat will provide

any significant additional regulatory

burdens or restrictions.

(17) Comment: A couple of

commenters were concerned that our

economic analysis was incorrect to

assume that a Regulatory Flexibility

Analysis was not required.

Our Response: The Regulatory

Flexibility Act, as amended by the

Small Business Regulatory Enforcement

Fairness Act, generally requires an

agency to prepare a regulatory flexibility

analysis of any rule subject to notice

and comment rulemaking requirements

under the Administrative Procedure

Act, or any other statute, unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

We are certifying that this rule will, in

fact, not have a significant economic

impact on a substantial number of small

entities and as a result, we do not need

to prepare either an initial or final

regulatory flexibility analysis.

Our economic analysis identified

several potential impacts associated

with critical habitat designation,

including increased consultation costs,

project modification costs, and potential

temporary decreases in property values.

However, because we have only

designated property that is within the

geographic range occupied by the

Riverside fairy shrimp, and because this

species is federally listed, other Federal

agencies are already required to consult

with us on activities that they authorize,

fund, permit, or carry out that may

affect the Riverside fairy shrimp. Any

associated costs related to these

consultations, including project

modifications, will therefore be

attributable to the listing of the species

and not to designation of critical habitat.

In a few instances, completed (or nearcomplete) consultations may have to be

reinitiated once the critical habitat

designation is finalized to ensure

Federal agencies’ responsibilities under

section 7 are met. As a result, the

critical habitat designation could result

in an economic effect associated with

any delays to complete these

consultations. Similarly, most decreases

in property values, to the extent that

they can be attributed to the Riverside

fairy shrimp and result from actual

restrictions in land use, would be a

result of its listing and not because of

critical habitat designation. We

recognize that the market response to a

critical habitat designation, due to the

perception of an increased regulatory

burden, may lower real estate values on

lands within the designation. However,

we expect this decrease in value to be

temporary. Our draft and final economic

analysis further discusses how we

arrived at our conclusion regarding

impacts to small entities.

(18) Comment: Several commenters

stated that we should have analyzed the

cumulative effect of the critical habitat

designation for the Riverside fairy

shrimp, along with the effect of existing

and proposed critical habitat for other

species in the area.

Our Response: The commenters

appear to be using the term ‘‘cumulative

impacts’’ in the context of the National

Environmental Policy Act. This is not

appropriate in analyzing the effects of a

regulation designating critical habitat

for a listed species. We are required to

consider only the effect of the proposed

government action, which in this case is

the designation of critical habitat for the

Riverside fairy shrimp. The appropriate

baseline to use in this analysis is the

regulatory environment without this

regulation. Against this baseline, we

attempt to identify and measure the

incremental costs and benefits

associated with this designation of

critical habitat. Because the Riverside

fairy shrimp is a federally protected

species, any effects the listing has on the

regulated community is considered part

of the baseline scenario, which remains

unaffected by our critical habitat

designation. Existing and proposed

critical habitat designations for other

species in the area will be part of

separate rulemakings, and consequently,

their economic effects will be

considered separately.

(19) Comment: The draft economic

analysis failed to consider the effect

critical habitat designation would have

on the demand for new housing, and the

economic analysis ignores the impact of

the designation on California’s critical

housing shortage.

Our Response: We are aware that

some of the land that we have proposed

as critical habitat for the Riverside fairy

shrimp faces significant development

pressure. Development activities can

have a significant effect on the land and

the species dependent on the habitat

being developed. We also recognize that

many large-scale development projects

are subject to some type of Federal

nexus before work actually begins. As a

result, we expect that future

consultations will, in part, include

planned and future real estate

development.

However, we believe that these

resulting consultations will not take

place solely with respect to critical

habitat issues. While it is true that

development activities can adversely

affect designated critical habitat, we

believe that our future consultations

regarding new housing development

will take place because such actions

have the potential to adversely affect a

federally listed species. We believe that

such planned projects would require a

section 7 consultation regardless of the

critical habitat designation. Again, as we

have previously mentioned, section 7 of

the Act requires Federal agencies to

consult with us whenever actions they

fund, authorize, or carry out may affect

a listed species or adversely modify its

critical habitat.

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. This is not the case because

critical habitat designation for the

Riverside fairy shrimp is not adding any

significant additional protection, nor

impacting landowners significantly

beyond that associated with the listing

of the species as endangered 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

Riverside fairy shrimp is not imposing

any significant additional constraints on

landowner activities beyond those

currently associated with the listing.

(20) Comment: One commenter

expressed concern that the Service

failed to quantify section 7 consultation

costs on projects when designating

critical habitat for the Riverside fairy

shrimp.

Our Response: In the draft economic

analysis, which was made available to

the public on February 28, 2001 (66 FR

12754), there is a section that

specifically discusses the cost estimates

of completing section 7 consultations.

These costs are developed through a

review of consultation files, and

estimating the level of effort of the

Service, the action agency, and the

applicant during both formal and

informal consultations. Costs associated

with these consultations include

preparation of a biological assessment as

well as the costs of the consultation

itself. Also, please refer to our response

to Comment 23.

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29399

(21) Comment: Some commenters

were concerned that, while we

discussed impacts that are more

appropriately attributable to the listing

of the Riverside fairy shrimp than to the

proposed designation of critical habitat,

we did not include the baseline costs

attributable to the listing or provide

quantified estimates of the costs

associated with the listing.

Our Response: The Act is clear that

the listing decision be based solely on

the best available scientific and

commercial data available (section 4(b)

of the Act). 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 the species’ listing. 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

includes the listing of the Riverside

fairy shrimp as an endangered species.

(22) Comment: The assumption that

future section 7 consultations would not

be subject to regulatory uncertainty and

legal challenge, and 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 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 result in the destruction or

adverse modification of critical habitat

would almost always result in jeopardy

to the species concerned.

(23) Comment: Many commenters

expressed concern that the draft

economic analysis failed to quantify the

effects of proposed critical habitat

designation.

Our Response: We were only able to

identify the types of impacts likely to

occur as a result of the proposed critical

habitat designation. These impacts

include new consultations, reinitiation

of consultations, and perhaps the need

for additional time for completion 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

suggest reasonable and prudent

alternatives to the proposed activity that

triggered the consultation, which would

also be an impact. Also associated with

consultations is the length of time

required to carry out consultations,

which may result in opportunity costs

associated with project delays.

In the case of proposed critical habitat

for the Riverside fairy shrimp, we have

designated habitat that is within the

geographic range occupied by the

species. As a result, impacts are not

likely to be significant because Federal

agencies are already required to consult

with us on activities taking place on

lands that have the potential to

adversely affect the Riverside fairy

shrimp.

We also recognize that in some

instances, the designation of critical

habitat could result in a distorted real

estate market because participants may

incorrectly perceive that land within

critical habitat designation is subject to

additional constraints. In truth, this is

not the case because critical habitat

designation for the Riverside fairy

shrimp is not adding any significant

additional protection, nor resulting in

significant impacts to landowners

beyond those associated with the listing

of the species as endangered 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

Riverside fairy shrimp is not imposing

any significant additional constraints on

landowner activities beyond those

currently associated with the listing.

(24) Comment: Some commenters felt

that the economic analysis is flawed

because it is based on the premise that

we have proposed designating only

occupied habitat as critical habitat.

Our Response: The determination of

whether or not proposed critical habitat

is within the geographic range occupied

by the Riverside fairy shrimp is part of

the biological decision-making process

and lies beyond the scope of an

economic analysis. Please refer to our

response to Comment 16 and the

Methods section of this rulemaking for

a discussion of the decision-making

process.

(25) Comment: One commenter was

concerned because our economic

analysis failed to consider the impact of

critical habitat on implementation of the

Southern California Association of

Governments and the San Diego

Association of Governments regional

transportation plans.

Our Response: Because we have

determined that the lands designated as

critical habitat are within the geographic

range occupied by the Riverside fairy

shrimp, this designation does not

present any significant additional

regulatory burdens upon regional

transportation projects beyond those

attributable to the listing of the

Riverside fairy shrimp as a federally

endangered species. Consequently, we

do not believe that the designation of

critical habitat for the fairy shrimp adds

any significant additional economic

burden within critical habitat

boundaries.

(26) Comment: One commenter

suggested that we failed to consider the

impacts of the final designation of

critical habitat for the Riverside fairy

shrimp on regional air quality plans in

Southern California.

Our Response: We did not take into

consideration potential impacts from

the proposed critical habitat designation

on regional air quality plans. In order to

do so, we would first have to: (1)

Establish the potential incremental

impacts resulting from critical habitat,

(2) establish the percentage of these

potential impacts that could affect

regional air quality plans, and then (3)

attempt to quantify the economic

impacts resulting from the potential

incremental impacts to air quality that

are attributable to critical habitat.

Because we believe that incremental

impacts resulting from critical habitat

are not significant, therefore not

resulting in an additional significant

regulatory or economic burden above

and beyond that attributable to the

listing of the species, we do not believe

that the designation of critical habitat

would have a significant effect on

regional air quality planning.

29400 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

Issue 4: Other Relevant Issues

(27) Comment: One commenter

wanted to know if the Riverside fairy

shrimp is actually the same species as

the San Diego fairy shrimp, and whether

there is a commonality of habitat.

Our Response: We may have

inadvertently caused some confusion

about the taxonomy of fairy shrimp in

southern California by two errors on

page 57137 of the proposed rule (65 FR

57136). We misidentified San Diego

fairy shrimp as Streptocephalus

sandiegonensis, instead of the correct

Branchinecta sandiegonensis. We also

mistakenly stated that the Riverside

fairy shrimp is closely related to the San

Diego fairy shrimp. We apologize for the

errors. Although the two organisms

belong to the same scientific order, they

are not closely related, but are members

of different genera and families.

Additionally, in general terms of

habitat, the Riverside fairy shrimp

inhabits pools, ponds, and depressions

that are deeper than the basins that

support the endangered San Diego fairy

shrimp.

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 Riverside

fairy shrimp, we reevaluated our

proposed designation of critical habitat

for this species. These changes include

the following: (1) The removal of

subunit 2H in southern Orange County

from the designation because the vernal

pool had previously been destroyed by

the construction of Antonio Parkway;

(2) corrections to area designated by

land ownership (Table 1) based on the

use of updated GIS land ownership

coverages; (3) removal of Miramar

(proposed Critical Habitat Unit 5) from

critical habitat designation due to an

existing, finalized INRMP; (4) removal

of the training areas on Camp Pendleton

from the designation under section

4(b)(2) of the Act; (5) changing the name

of proposed Critical Habitat Unit 6 to

Critical Habitat Unit 5 for this final

designation.

During the comment period for the

proposed determination of critical

habitat for the Riverside fairy shrimp,

we received comments from the Marine

Corps requesting the removal of Marine

Corps Air Station Miramar from the

designation because they believed their

final INRMP adequately protected and

managed for the Riverside fairy shrimp.

We have evaluated this plan and

determined that the conservation

management measures and protections

afforded the Riverside fairy shrimp are

sufficient to ensure its conservation on

this base (see discussion under the

Exclusions Under section 3(5)(A)

Definition section of this rule and in

response to Comment 10). Therefore, we

have not included Miramar in this final

determination of critical habitat for

Riverside fairy shrimp.

We also determined that it is

appropriate to exclude the training areas

on 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 of excluding the areas outweigh

the benefits of including them. 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.

The acreage being designated as critical

habitat for the Riverside fairy shrimp on

Camp Pendleton has been reduced from

2,295 ha (5,670 ac) to 312 ha (770 ac).

The areas designated include pool

complexes at the Wire Mountain

Housing Area, within the Cockleburr

Sensitive Area, and on lands leased to

the State of California and included

within San Onofre State Park. Refer to

the Exclusions Under Section 4(b)(2)

section and response to Comment 10 for

a more complete discussion of this

issue.

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

Riverside fairy shrimp as an endangered

species, and by other statutes, are the

baseline against which the effects of

critical habitat designation are

evaluated. The economic analysis must

then examine the incremental economic

and conservation effects and benefits of

the critical habitat designation.

Economic effects are measured as

changes in national income, regional

jobs, and household income. An

analysis of the economic effects of

Riverside fairy shrimp critical habitat

designation was prepared (Industrial

Economics, Incorporated 2001) and

made available for public review

(February 28 through March 30, 2001;

66 FR 12754). The final analysis, which

reviewed and incorporated public

comments, concluded that no

significant additional economic impacts

are anticipated from the critical habitat

designation above and beyond those

already attributable to the listing of the

Riverside fairy shrimp as an endangered

species. 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 consultations resulting from the

determination. Because areas proposed

for critical habitat are primarily within

the geographic range occupied by the

Riverside 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. In those

limited cases where activities occur on

designated critical habitat where

Riverside fairy shrimp and other listed

species are not found at the time of the

action, section 7 consultation with the

Service may be necessary for actions

funded, authorized, or carried out by

Federal agencies.

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

significant additional regulatory burden

or associated significant additional costs

would accrue because of critical habitat

above and beyond those attributable to

the listing of the Riverside fairy shrimp.

Our economic analysis does recognize

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 these impacts will be short-term,

however.

In summary, our economic analysis

concludes that no, or minimal,

significant incremental costs are

anticipated as a result of the designation

of critical habitat. This estimate is based

on the existing consultation history with

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29401

the Corps on projects that may affect

vernal pools and increased public

awareness regarding the actual impacts

of critical habitat designation on land

values.

A copy of the final economic analysis

and a description of the exclusion

process with supporting documents are

included in our administrative record

and may be obtained by contacting our

Carlsbad Fish and Wildlife Office (see

ADDRESSES section).

Required Determinations

Regulatory Planning and Review

In accordance with the criteria in

Executive Order 12866, this rule is a

significant regulatory action and has

been reviewed by the Office of

Management and Budget (OMB).

(a) This rule will not have an annual

effect on the economy of $100 million

or more or adversely affect in a material

way the economy, a sector of the

economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local, or tribal

governments or communities. The

Riverside fairy shrimp was listed as an

endangered species in 1993. In fiscal

years 1997 through 1999, we conducted

seven formal section 7 consultations

with other Federal agencies to ensure

that their actions would not jeopardize

the continued existence of the fairy

shrimp.

Under the Act, critical habitat may

not be adversely modified by a Federal

agency action; critical habitat does not

impose any restrictions on non-Federal

persons 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 listed 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 designated critical

habitat currently occupied by Riverside

fairy shrimp would currently be

considered as ‘‘jeopardy’’ under the Act.

Accordingly, the designation of

currently occupied areas as critical

habitat does not have any incremental

impacts on what actions may or may not

be conducted by Federal agencies or

non-Federal persons that receive

Federal authorization or funding. NonFederal 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 areas that are not known to be

occupied by this species will also not

likely result in an increased regulatory

burden because the Corps of Engineers

requires review of projects requiring

permits in all vernal pools, whether it

is known that Riverside fairy shrimp are

present or not. In those limited cases

where activities occur on designated

critical habitat where Riverside fairy

shrimp and other listed species are not

found at the time of the action,

additional section 7 consultation with

the Service not previously required may

be necessary for actions funded,

authorized, or carried out by Federal

agencies.

TABLE 2.—IMPACTS OF RIVERSIDE FAIRY SHRIMP LISTING AND 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 3.Activities 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; maintenance, management, and construction activities 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 in occupied habitat. In unoccupied habitat containing vernal

pools, additional consultations

are not anticipated because the

Corps of Engineers already initiates consultations in these

areas.

Private or other non-Federal Activities Potentially Affected 4.

Activities such as removing or destroying Riverside 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 in occupied habitat. In unoccupied habitat containing vernal

pools, additional consultations

are not anticipated because the

Corps of Engineers already initiates consultations in these

areas.

1This column represents the activities potentially affected by listing the Riverside fairy shrimp as an endangered species (August 3, 1993; 58

FR 41384) 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.

(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 Riverside

fairy shrimp since the listing in 1993.

The prohibition against adverse

modification of critical habitat is not

expected to impose any significant

restrictions in addition to those that

currently exist in occupied areas of

designated critical habitat. Because of

the potential for impacts on other

Federal agencies’ activities, we will

continue to review this final action for

any inconsistencies with other Federal

agencies’ actions.

(c) This rule will not materially affect

entitlements, grants, user fees, loan

programs, or the rights and obligations

29402 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

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

incremental effects in areas of occupied

habitat. Designation of critical habitat in

areas that are not known to be occupied

by this species will also not likely result

in a significant increased regulatory

burden because the Corps of Engineers

already requires review of projects

involving vernal pools, whether it is

known that Riverside fairy shrimp are

present or not. In those limited cases

where activities occur on designated

critical habitat where Riverside fairy

shrimp and other listed species are not

found at the time of the action, section

7 consultation with us may be necessary

for actions funded, authorized, or

carried out by Federal agencies.

(d) OMB has determined that this rule

may raise novel legal or policy issues

and, as a result, this rule has undergone

OMB review.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act

(5 U.S.C. 601 et seq., as amended by the

Small Business Regulatory Enforcement

Fairness Act (SBREFA) of 1996),

whenever an agency is required to

publish a notice of rulemaking for any

proposed or final rule, it must prepare

and make available for public comment

a regulatory flexibility analysis that

describes the effect of the rule on small

entities (i.e., small businesses, small

organizations, and small government

jurisdictions). However, no regulatory

flexibility analysis is required if the

head of an agency certifies the rule will

not have a significant economic impact

on a substantial number of small

entities.

SBREFA amended the Regulatory

Flexibility Act to require Federal

agencies to provide a statement of the

factual basis for certifying that a rule

will not have a significant economic

impact on a substantial number of small

entities. The following discussion

explains our determination.

We have examined this rule’s

potential effects on small entities as

required by the Regulatory Flexibility

Act, and have determined that this

action will not have a significant

economic impact on a substantial

number of small entities.

As discussed in the economic analysis

for this rulemaking and the preamble

above, this rule is not expected to result

in any significant restrictions in

addition to those currently in existence

for areas occupied by the Riverside fairy

shrimp and designated as critical

habitat. As indicated in Table 1 (see

Critical Habitat Designation section), we

designated critical habitat on property

owned by Federal, State, and local

governments and private property, and

identified the types of Federal actions or

authorized activities that are of potential

concern (Table 2). If 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 significant

additional effects on these activities in

areas of critical habitat occupied by the

species. Designation of critical habitat in

areas that are not known to be occupied

by this species will also not likely result

in a significant increased regulatory

burden since the Corps of Engineers

already requires review of projects

involving vernal pools because vernal

pools typically contain listed species for

which the Corps must consult with us

under section 7. For actions on nonFederal 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.

Therefore, we are certifying that this

final designation of critical habitat is not

expected to have a significant adverse

impact on a substantial number of small

entities. Thus, no regulatory flexibility

analysis is necessary.

Executive Order 13211

On May 18, 2001, the President issued

an Executive Order (EO 13211) on

regulations that significantly affect

energy supply, distribution, and use.

Executive Order 13211 requires agencies

to prepare Statements of Energy Effects

when undertaking certain actions. As

this final rule is not expected to

significantly affect energy supplies,

distribution, or use, this action is not a

significant energy action and no

Statement of Energy Effects is required.

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

Small Government Agency Plan is not

required. Small governments will be

affected only to the extent that any

programs having 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 in

areas of occupied designated critical

habitat. Designation of critical habitat in

areas that are not known to be occupied

by this species will also not likely result

in an increased regulatory burden

because the Corps of Engineers already

requires review of projects involving

vernal pools as vernal pools typically

contain listed species for which the

Corps of Engineers must consult with us

under section 7. In those limited cases

where activities occur on designated

critical habitat where Riverside fairy

shrimp and other listed species are not

found at the time of the action, section

7 consultation with the Service may be

necessary for actions funded,

authorized, or carried out by Federal

agencies.

(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 Riverside fairy

shrimp. Due to current public

knowledge of the species’ protection

under the ESA, 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 in areas of

occupied critical habitat, we do not

anticipate that property values will be

affected by the critical habitat

designation. Designation of critical

habitat in areas that are not known to be

occupied by this species will also not

likely result in an increased regulatory

burden because the Corps already

requires review of projects involving

vernal pools as vernal pools typically

contain listed species for which the

Corps must consult with us under

section 7. In those limited cases where

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29403

activities occur on designated critical

habitat where Riverside fairy shrimp

and other listed species are not found at

the time of the action, section 7

consultation with the Service may be

necessary for actions funded,

authorized, or carried out by Federal

agencies.

Additionally, critical habitat

designation does not preclude

development of habitat conservation

plans 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 and

recovery of the Riverside fairy shrimp.

Federalism

In accordance with Executive Order

13132, this rule does not have

significant Federalism effects. A

Federalism assessment is not required.

In keeping with Department of the

Interior policy, we requested

information from, and coordinated

development of this critical habitat

proposal with, appropriate State

resource agencies in California. We will

continue to coordinate any future

designation of critical habitat for the

Riverside fairy shrimp with the

appropriate State agencies. The

designation of critical habitat in areas

currently occupied by the Riverside

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, and plan public

hearings on the proposed designation

during the comment period. The rule

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 Riverside fairy

shrimp.

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.)

This rule does not contain any

information collection requirements for

which OMB approval under the

Paperwork Reduction Act is required.

An agency may not conduct or sponsor,

and a person is not required to respond

to, a collection of information unless it

displays a valid OMB Control Number.

National Environmental Policy Act

We have 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 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).

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), Executive

Order 13175, and the Department of the

Interior’s requirement at 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 Riverside fairy

shrimp because these lands do not

support populations, nor do they

provide essential habitat. Therefore,

critical habitat for the Riverside fairy

shrimp has not been designated on

Tribal lands.

References Cited

A complete list of all references cited

in this proposed rule is available upon

request from the Carlsbad Fish and

Wildlife Office (see ADDRESSES section).

Author

The primary authors of this document

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.

Final Regulation Promulgation

For the reasons given in the preamble,

we hereby amend 50 CFR part 17 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, Riverside’’ under

‘‘CRUSTACEANS’’ to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

*******

CRUSTACEANS

*******

Fairy shrimp, Riverside.

Streptocephalus

woottoni.

U.S.A.(CA) .............. Entire ...................... E 512 17.95(h) NA

*******

29404 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

3. In § 17.95 add critical habitat for

the Riverside fairy shrimp

(Streptocephalus woottoni) 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.

* * * * *

Riverside Fairy Shrimp

(Streptocephalus woottoni)

1. Critical habitat units are depicted

for Los Angeles, Orange, Riverside, San

Diego, and Ventura counties, California,

on the maps below.

2. Critical habitat includes vernal

pools, vernal pool complexes, and

ephemeral ponds and depressions and

their associated watersheds and

hydrologic regime indicated on the

maps below and in the legal

descriptions.

3. Within these areas, the primary

constituent elements for the Riverside

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 ponds and

depressions, and their associated

watersheds. The primary constituent

elements are: small to large pools with

moderate to deep depths that hold water

for sufficient lengths of time necessary

for incubation and reproduction, but not

necessarily every year; entire

watershed(s) and other hydrologic

features that support pool basins and

their related pool complexes; 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.

All designated critical habitat areas

contain one or more of the primary

constituent elements for Riverside fairy

shrimp.

4. Existing features and structures,

such as buildings, roads, railroads,

urban development, and other such

developed features not containing

primary constituent elements, are not

considered critical habitat. Federal

actions limited to these areas would not

trigger a section 7 consultation, unless

they affect the species and/or the

primary constituent elements in

adjacent critical habitat.

Note: Map follows:

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BILLING CODE 4310–55–C

Map Unit 1: Goleta and Transverse

Management Area, Ventura and Los

Angeles counties, California

Unit 1a: From USGS 1:24,000

quadrangle map Mint Canyon, the lands

bounded by the following UTM

coordinates (E,N): 368000,3815000;

368500,3815000; 368500,3814500;

368250,3814500; 368250,3813750;

368000,3813750; 368000,3813500;

367250,3813500; 367250,3814250;

367500,3814250; 367500,3814500;

367750,3814500; 367750,3814750;

368000,3814750; 368000,3815000.

Unit 1b: From USGS 1:24,000

quadrangle map Simi Valley West, the

lands bounded by the following UTM

coordinates (E,N): 329000,3793250:

329500,3793250; 329500,3792750;

329000,3792750; 329000,3793250.

Note: Maps follow:

BILLING CODE 4310–55–U

29406 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

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BILLING CODE 4310–55–C

29408 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

Map Unit 2: Los Angeles Basin-Orange

Management Area, Los Angeles and

Orange counties, California

Unit 2A: From USGS 1:24,000

quadrangle map Venice, the lands

bounded by the following UTM

coordinates (E,N): 366750,3757750;

367250,3757750; 367250,3757250;

367500,3757250; 367500,3756250;

367250,3756250; 367250,3756500;

367000,3756500; 367000,3757250;

366750,3757250; 366750,3757750.

Unit 2B: From USGS 1:24,000

quadrangle map Venice, the lands

bounded by the following UTM

coordinates (E,N): 367750,3755500;

368000,3755500; 368000,3755250;

367750,3755250; 367750, 3755500.

Unit 2C: From USGS 1:24,000

quadrangle map El Toro, the lands

bounded by the following UTM

coordinates (E,N): 435750,3726750;

436750,3726750; 436750,3726500;

436500,3726500; 436500,3726250;

435750,3726250; 435750,3726750.

Unit 2D: From USGS 1:24,000

quadrangle map El Toro, the lands

bounded by the following UTM

coordinates (E,N): 440500,3725750;

441000,3725750; 441000,3725000;

440500,3725000; 440500,3725750.

Unit 2E: From USGS 1:24,000

quadrangle map Santiago Peak, the

lands bounded by the following UTM

coordinates (E,N): 442500,3727000;

443750,3727000; 443750,3726000;

442250,3726000; 442250,3726500;

442500,3726500; 442500,3727000.

Unit 2F: From USGS 1:24,000

quadrangle maps Santiago Peak and

Canada Gobernadora, the lands bounded

by the following UTM coordinates (E,N):

444500,3721000; 445000,3721000;

445000,3720000; 444000,3720000;

444000,3720500; 444250,3720500;

444250,3720750; 444500,3720750;

444500,3721000.

Unit 2G: From USGS 1:24,000

quadrangle map Canada Gobernadora,

the lands bounded by the following

UTM coordinates (E,N):

442000,3713000; 442500,3713000;

442500,3712500; 442750,3712500;

442750,3712000; 442000,3712000;

442000,3713000.

Note: Maps for Units 2A through 2G

follow:

BILLING CODE 4310–55–U

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29409

29410 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

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BILLING CODE 4310–55–C

Map Unit 3: Riverside Management

Area, Riverside County, California

Unit 3A: From USGS 1:24,000

quadrangle map Murrieta, the lands

bounded by the following UTM

coordinates (E,N): 478750,3718500;

479500,3718500; 479500,3717750;

478750,3717750; 478750,3718500.

Unit 3B: From USGS 1:24,000

quadrangle maps Wildomar and

Murrieta, the lands bounded by the

following UTM coordinates (E,N):

476250,3711500; 477000,3711500;

477000,3711250; 477250,3711250;

477250,3710750; 478000,3710750;

478000,3710500; 478250,3710500;

478250,3710250; 478500,3710250;

478500,3710000; 478750,3710000;

478750,3709750; 479250,3709750;

479250,3709500; 479500,3709500;

479500,3709250; 479250,3709250;

479250,3709000; 479500,3709000;

479500,3708500; 479250,3708500;

479250,3708250; 479000,3708250;

479000,3708500; 478750,3708500;

478750,3708750; 478250,3708750;

478250,3709000; 477500,3709000;

477500,3709250; 476750,3709250;

476750,3709000; 476500,3709000;

476500,3708500; 475750,3708500;

475750,3708000; 475000,3708000;

475000,3707000; 474000,3707000;

474000,3706750; 472000,3706750;

472000,3708250; 472500,3708250;

472500,3708500; 472750,3708500;

472750,3709250; 473000,3709250;

473000,3710500; 473250,3710500;

473250,3710750; 474000,3710750;

474000,3710500; 474250,3710500;

474250,3710250; 474500,3710250;

474500,3710000; 474750,3710000;

474750,3709750; 475000,3709750;

475000,3710000; 475500,3710000;

475500,3710250; 475750,3710250;

475750,3711250; 476250,3711250;

476250,3711500. Excluding lands

bounded by the following UTM

coordinates (E,N): 475000,3709500;

475000,3709000; 475250,3709000;

475250,3709250; 475500,3709250;

475500,3709500; 475000,3709500 and

lands bounded by the following UTM

coordinates (E,N): 473500,3709000;

473500,3708750; 474250,3708750;

474250,3709000; 473500,3709000.

BILLING CODE 4310–55–U

Note: Map follows:

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29412 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

Map Unit 4: San Diego: North Coastal

Mesa Management Area, San Diego,

California

Unit 4A: From USGS 1:24,000

quadrangle map San Clemente, the

lands bounded by the following UTM

coordinates (E,N): 446250,3701000;

446500,3701000; 446500,3699500;

445750,3699500; 445750,3700000;

446000,3700000; 446000,3700750;

446250,3700750; 446250,3701000.

Unit 4B: From USGS 1:24,000

quadrangle map Las Pulgas Canyon, the

lands bounded by the following UTM

coordinates (E,N): 446250,3701000;

446500,3701000; 446500,3699500;

445750,3699500; 445750, 3700000;

446000,3700000; 446000,3700750;

446250,3700750; 446250,3701000,

excluding the Pacific Ocean.

Unit 4C: From USGS 1:24,000

quadrangle map Las Pulgas Canyon, the

lands bounded by the following UTM

coordinates (E,N): 460000,3680000;

460250,3680000; 460250,3679750;

460500,3679750; 460500,3679000;

459500,3679000; 459500,3679250;

459250,3679250; 459250,3679750;

460000,3679750; 460000,3680000,

excluding the Pacific Ocean.

Unit 4D: From USGS 1:24,000

quadrangle maps Oceanside and San

Luis Rey, the lands bounded by the

following UTM coordinates (E,N):

464250,3677000; 465250,3677000;

465250,3676750; 465750,3676750;

465750,3675750; 465500,3675750;

465500,3675500; 465000,3675500;

465000,3675750; 464750,3675750;

464750,3676250; 465000,3676250;

465000,3676500; 464250,3676500;

464250,3677000.

Unit 4E: From USGS 1:24,000

quadrangle maps Encinitas, the lands

bounded by the following UTM

coordinates (E,N): 470250,3663500;

470750,3663500; 470750,3662500;

470500,3662500; 470500,3662750;

470250,3662750; 470250,3663500.

Note: Maps for Units 4A through 4E follow:

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Map Unit 5: San Diego: South Coastal

Management Area, San Diego County,

California. From USGS 1:24,000

quadrangle maps Otay Mesa, the lands

bounded by the following UTM

coordinates (E,N): 509250,3603000;

510000,3603000; 510000,3602250;

509500,3602250; 509500,3602000;

509250,3602000; 509250,3603000.

Note: Map follows:

Dated: May 22, 2001.

Joseph E. Doddridge,

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 01–13337 Filed 5–23–01; 4:03 pm]

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