70648 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AV37 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the San Diego Fairy Shrimp 

(Branchinecta sandiegonensis) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

designating revised final critical habitat 

for the San Diego fairy shrimp 

(Branchinecta sandiegonensis) under 

the Endangered Species Act of 1973, as 

amended (Act). Approximately 3,082 

acres (ac) (1,248 hectares (ha)) of habitat 

in Orange and San Diego counties, 

California, are being designated as 

critical habitat for the San Diego fairy 

shrimp. This revised final designation 

constitutes a reduction of 943 ac (382 

ha) from the 2000 designation of critical 

habitat for the San Diego fairy shrimp. 

DATE: This rule becomes effective on 

January 11, 2008. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this revised final rule, will be 

available for public inspection, by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Carlsbad Fish and Wildlife 

Office, 6010 Hidden Valley Road, 

Carlsbad, CA 92011. The revised final 

rule, economic analysis, and maps are 

available on the Internet at http:// 

www.fws.gov/carlsbad/. 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, U.S. Fish and 

Wildlife Service, Carlsbad Fish and 

Wildlife Office (see ADDRESSES); 

telephone 760–431–9440; facsimile 

760–431–5901. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

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

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat for the 

San Diego fairy shrimp in this revised 

final rule. For more information on the 

taxonomy, biology, and ecology of the 

San Diego fairy shrimp, please refer to 

the final listing rule published in the 

Federal Register on February 3, 1997 

(62 FR 4925), the original proposed and 

final critical habitat rules published in 

the Federal Register on March 8, 2000 

(65 FR 12181) and October 23, 2000 (65 

FR 63438), respectively, and the 

proposed rule to revise critical habitat 

published in the Federal Register on 

April 22, 2003 (68 FR 19888). 

The San Diego fairy shrimp 

(Branchinecta sandiegonensis) is a 

small aquatic crustacean in the order 

Anostraca, generally restricted to vernal 

pools and other ephemeral (lasting a 

short time) basins in coastal Orange and 

San Diego Counties in southern 

California and in northwestern Baja 

California, Mexico. Vernal pools in 

southern California typically contain 

water in the winter and are dry in the 

summer. The San Diego fairy shrimp is 

a habitat specialist found in shallower 

pools that range in depth from 2 to 12 

inches (in) (5 to 30 centimeters (cm)) 

(Simovich and Fugate 1992, p. 111; 

Hathaway and Simovich 1996, p. 670). 

San Diego fairy shrimp feed on algae, 

diatoms, and particulate organic matter 

(Parsick 2002, pp. 37–41, 65–70). Male 

San Diego fairy shrimp are 

distinguished from males of other 

species of Branchinecta by differences 

in the distal (located far from the point 

of attachment) tip of the second 

antennae. The females carry their eggs 

or cysts in an oval or elongate ventral 

brood sac (Eriksen and Belk 1999, pp. 

20–24; Fugate 1993, p. 301). Females are 

distinguishable from females of other 

species of Branchinecta by the shape 

and length of the brood sac, the length 

of the ovary, and the presence of paired 

dorsolateral (located on the sides, 

toward the back) spines on five of the 

abdominal segments (Fugate 1993, p. 

301). 

San Diego fairy shrimp occur in 

groups of vernal pools referred to as 

vernal pool complexes (Keeler-Wolf et 

al. 1998, p. 9). Vernal pool complexes 

tend to include between 5 and 50 vernal 

pools, although some contain as few as 

two vernal pools and some contain 

several hundred vernal pools. Vernal 

pools within a complex are generally 

hydrologically connected, meaning that 

water flows over the surface from one 

vernal pool basin to another and/or 

water flows and collects below ground 

such that the soil becomes saturated 

with water, and the vernal pool basins 

fill with water (Hanes et al. 1990, pp. 

51–56). For this reason the vernal pool 

ecosystems, on which the San Diego 

fairy shrimp depend, are best described 

from a watershed perspective (Service 

1998a, p. 59). The vernal pool 

watershed includes all areas around a 

vernal pool complex needed to collect 

rainfall and adequately fill the vernal 

pool basins within the vernal pool 

complex. In rainy years, California’s 

vernal pools begin to fill following the 

onset of fall and winter rains. Some 

pools in a complex have substantial 

watersheds that contribute to filling the 

vernal pools, while others fill almost 

entirely from rainfall (Hanes et al. 1990, 

pp. 51–54; Hanes and Stromberg 1998, 

pp. 38, 47–49). Subsurface inflows from 

surrounding soils may also be an 

important factor in the filling of some 

vernal pools (Hanes et al. 1990, pp. 55– 

56; Hanes and Stromberg 1998, pp. 41– 

42). 

A recent mitochondrial DNA (genetic 

sequence) study sampled 223 San Diego 

fairy shrimp from 24 vernal pool 

complexes (Bohonak 2004, p. 2). 

Researchers identified 39 unique alleles; 

each unique allele was found only at 

specific vernal pool complexes or 

within isolated geographic areas 

(Bohonak 2004, pp. 2–9). This indicates 

that fairy shrimp within a vernal pool 

complex or in limited geographic areas 

are more closely related to each other 

than to those at more distant locations. 

This analysis of mitochondrial DNA 

also indicates that there are two distinct 

genetic clades (genetic groups within a 

taxa) among populations of San Diego 

fairy shrimp, referred to as Group A and 

Group B (Bohonak 2004, p. 3; Bohonak 

2007, p. 1). The difference in the alleles 

within either of the clades is less that 

one percent divergence; however, 

between the two groups there is a 2.5 

percent divergence between pairs of 

alleles. Bohonak states that ‘‘this means 

individuals from Group A and B have 

been isolated from one another 

biologically for tens of thousands or 

perhaps millions of years with little or 

no dispersal or hybridization (2004, p. 

3).’’ The distribution of the two clades 

is unusual because with the degree of 

difference between the two clades one 

would expect them to be geographically 

separate; however, the two clades are 

somewhat intermixed geographically. 

The extant range of the San Diego 

fairy shrimp is restricted to San Diego 

and Orange Counties in the United 

States, and in northwestern Baja 

California in Mexico. San Diego County 

supports the largest number of 

remaining vernal pools occupied by the 

San Diego fairy shrimp. Scientists 

estimate vernal pool soils historically 

covered 200 square miles (mi) (518 

square kilometers (km)) in San Diego 

County; habitat losses have been 

extensive, only remnants of most vernal 

pool landscapes remain (Bauder and 

McMillan 1998, p. 66). The majority of 

vernal pool habitat in coastal Orange 

County has also been lost; currently 

there are only five vernal pool 

complexes in Orange County known to 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70649 

support the San Diego fairy shrimp 

(Riefner and Pryor, p. 300; Keeler-Wolf 

et al. 1998, p. 63; Mattoni and Longcore 

1997, pp. 71, 89; CNDDB 2004, pp. 9, 

11, 12, 29–32). 

Previous Federal Actions 

On October 23, 2000, we published a 

final rule designating approximately 

4,025 ac (1,629 ha) of critical habitat for 

the San Diego fairy shrimp in Orange 

and San Diego Counties, California (65 

FR 63438). Following publication of the 

final rule, a lawsuit was filed against the 

Service challenging the critical habitat 

designation by multiple parties, 

including the Building Industry 

Association of Southern California, the 

National Association of Home Builders, 

and the Foothill/Eastern Transportation 

Corridor Agency (Building Industry 

Association of Southern California et al. 

v. Norton, CV 01–7028 (D.C.C., filed 1/ 

17/01) (venue subsequently transferred 

to C.D.Cal. and case assigned CV 01–

07028). On June 11, 2002, the U.S. 

District Court for the Central District of 

California granted our request for a 

remand of the San Diego fairy shrimp 

critical habitat designation so that we 

could reconsider the economic impact 

of designating any particular area as 

critical habitat. The Court ordered us to 

submit a new proposed rule to the 

Federal Register by April 11, 2003. 

On April 22, 2003, we published a 

proposed rule to designate 

approximately 6,098 ac (2,468 ha) of 

land within Orange and San Diego 

counties, California, as critical habitat 

for the San Diego fairy shrimp in the 

Federal Register, and we accepted 

public comments on the proposed 

revision until June 23, 2003 (68 FR 

19888). On April 8, 2004 (69 FR 18516), 

we published a notice in the Federal 

Register announcing: (1) The 

availability of the draft economic 

analysis (DEA) of the proposed rule to 

revise critical habitat for public review; 

(2) the reopening of the public comment 

period on the proposed rule; and (3) the 

scheduling of public hearings on the 

proposed critical habitat designation 

and DEA. Public hearings were 

conducted on April 29, 2004, in 

Carlsbad, California. The second public 

comment period closed on May 10, 

2004. 

The Service initiated work on the 

revised final critical habitat rule for the 

San Diego fairy shrimp, but because of 

other court-ordered priorities we did not 

complete the rule. On February 8, 2007, 

a motion was filed by the Plaintiffs 

requesting the Court to direct us to 

finalize the revised critical habitat 

designation for the San Diego fairy 

shrimp. We reached an agreement with 

the Plaintiffs whereby a revised final 

designation would be completed on or 

before November 1, 2007. On April 3, 

2007, we published a notice in the 

Federal Register announcing the 

reopening of the public comment period 

for the April 22, 2003, proposed rule to 

revise critical habitat for the San Diego 

fairy shrimp, and we accepted 

comments and information until May 3, 

2007 (72 FR 15857). This rule is being 

finalized in compliance with the court 

order. 

Summary of Comments and 

Recommendations 

As discussed in the Previous Federal 

Actions section above, we have opened 

three public comment periods 

associated with the 2003 proposed rule 

to revise critical habitat for the San 

Diego fairy shrimp; the second and third 

comment periods also sought public 

comment on the associated DEA. During 

these comment periods, we requested 

all interested parties to submit 

comments or information related to the 

proposed revision to the critical habitat 

designation, including, but not limited 

to, the following: Unit boundaries; 

species occurrence information and 

distribution; land use designations that 

may affect critical habitat; potential 

economic effects of the proposed 

designation; benefits associated with 

critical habitat designation; areas 

considered but not proposed for 

designation and the associated rationale 

for the non-inclusion/exclusion of these 

areas; and methods used to designate 

critical habitat. 

We informed all appropriate entities 

of the opening of these comment 

periods, including State and Federal 

agencies, County governments, elected 

officials, and other interested parties 

through telephone calls, letters, and 

news releases sent by facsimile, by U.S. 

mail, and/or by electronic mail. During 

the April 22 to June 23, 2003, comment 

period, we also invited public comment 

through the publication of notices in the 

following newspapers: Los Angeles 

Times, Orange County Register, The 

Press-Enterprise, San Bernardino Sun, 

and the San Diego Union-Tribune. 

During the April 8 to May 10, 2004, 

comment period, we announced the 

date and times of two public hearings 

that were held on the 2003 proposed 

revision to designated critical habitat 

and DEA. Hearings were held on April 

29, 2004, from 1 p.m. to 3 p.m. and from 

6 p.m. to 8 p.m. in Carlsbad, California. 

Transcripts of these hearings are 

available for inspection (see FOR

FURTHER INFORMATION CONTACT section 

above). 

During the comment period that 

opened on April 22, 2003, and closed on 

June 23, 2003, we received 43 comments 

directly addressing the proposed critical 

habitat designation: 4 from peer 

reviewers, 3 from Federal agencies, 3 

from local jurisdictions, and 33 from 

organizations or individuals. During the 

comment period that opened on April 8, 

2004, and closed on May 10, 2004, we 

received 11 comments directly 

addressing the proposed critical habitat 

designation and the DEA. Of these latter 

comments, one was from a State agency, 

5 were from local jurisdictions, and 5 

were from organizations or individuals. 

During the comment period that opened 

on April 3, 2007, and closed May 3, 

2007, we received 12 comments directly 

addressing the proposed revision to 

critical habitat and the DEA. Of these 

comments, 3 were from Federal 

agencies, 3 were from local 

jurisdictions, and 6 were from 

organizations or individuals. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from eight individuals with scientific 

expertise that included familiarity with 

the species, the geographic region where 

the species occurs, and conservation 

biology principles. We received 

responses from four of the peer 

reviewers. The peer reviewers were 

generally supportive of the designation 

of critical habitat. However, they 

stressed the importance of the genetic 

uniqueness of each population of San 

Diego fairy shrimp and the need to 

identify and preserve all remaining 

populations of the species. 

We reviewed all comments received 

from the peer reviewers and the public 

for substantive issues and new 

information regarding critical habitat for 

the San Diego fairy shrimp. All 

comments received were grouped into 

general issue categories relating to the 

proposed rule to revise critical habitat 

for San Diego fairy shrimp and are 

addressed in the following summary 

and incorporated into this revised final 

rule as appropriate. 

Peer Review Comments 

Comment 1: Three peer reviewers 

stated we should take the genetic 

information on the San Diego fairy 

shrimp into consideration when 

designating critical habitat. The peer 

reviewers stated that allozyme (enzyme) 

studies (citing Davies et al. 1997) and 

mitochondrial DNA (genetic sequence) 

studies (citing Bohonak 2004) indicate 

that within pool complexes, there is a 

low degree of genetic variation, but 

mstockstill on PROD1PC66 with RULES2

70650 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

between vernal pool complexes there is 

a high degree of genetic variation. The 

analysis of mitochondrial DNA 

indicates that there are two distinct 

genetic clades (genetic groups within a 

taxa) among populations of San Diego 

fairy shrimp (Bohonak 2004, p. 3). The 

peer reviewers indicated that the two 

distinct genetic clades are important for 

the conservation of the San Diego fairy 

shrimp. 

Our Response: We agree with the peer 

reviewers that the preservation of the 

genetic diversity of the San Diego fairy 

shrimp across its range is important to 

the conservation of this species, and we 

believe that we have captured the two 

distinct genetic clades referenced by the 

peer reviewers and described in the 

background section of this revised final 

rule in our designation. The distribution 

of the two clades is unusual because the 

two clades are not geographically 

separate across the extant range of the 

species. Our final designation captures 

a range of vernal pool complexes within 

each identified clade. Vernal pool 

complexes sampled in Fairview Park 

(subunit 1B) (Bohonak 2007, p. 1), Del 

Mar Mesa (subunit 4A/B), Carmel 

Mountain (subunit 4E and 4F), Lopez 

Ridge (subunit 4H), Winterwood 

(subunit 4I), Otay Mesa (subunit 5F), 

Lower Otay Reservoir (subunit 5H), and 

Marron Valley (subunit 5I) are in 

‘‘Group A’’ (Bohonak 2004, pp. 3–9). 

These sites represent 10 of 16 sites in 

‘‘Group A’’ sampled by researchers 

(Bohonak 2004, pp. 7–9). Vernal pool 

complexes sampled at San Onofre State 

Beach (subunit 2A) (Bohonak 2007, p. 

1), Ramona (subunits 3E.1–3E.4), 

SANDER (subunit 4K), Montgomery 

Field (subunit 4M), Murphy Canyon 

(subunit 4C), and Chollas Heights 

(subunit 4D) are in ‘‘Group B’’ (Bohonak 

2004, pp. 3–9). These sites represent 6 

of 12 sites in ‘‘Group B’’ sampled by 

researches (Bohonak 2004, pp. 7–9; 

Bohonak 2007, p. 1). 

Comment 2: Three peer reviewers 

expressed concern that Habitat 

Conservation Plans (HCPs) and 

Integrated Natural Resource 

Management Plans (INRMPs) may not 

provide the same level of protection for 

the San Diego fairy shrimp as critical 

habitat, and therefore can not be 

substituted for the designation of critical 

habitat. 

Our Response: Where a Federal nexus 

exists, lands designated as critical 

habitat are protected from destruction or 

adverse modification under section 7 of 

the Act. However, to be successful, the 

conservation of the San Diego fairy 

shrimp relies on proactive conservation 

and management of vernal pool 

complexes rather than mere avoidance 

of certain habitat impacts under section 

7 of the Act. Habitat conservation plans 

and INRMPs typically incorporate ongoing management and protection for 

the San Diego fairy shrimp that will 

benefit, and is critical to, the long-term 

conservation of the species. This type of 

long-term management would not 

necessarily result from a section 7 

consultation on an area where critical 

habitat has been designated. In addition, 

the protection and management afforded 

San Diego fairy shrimp habitat under 

HCPs extend to private lands that may 

otherwise lack a Federal nexus 

triggering consultation under section 7 

of the Act. 

Comment 3: One peer reviewer 

stressed the importance of viewing 

vernal pools as ecosystems with several 

important components, such as intact 

upland habitat and functional 

watersheds that contribute to the health 

and productivity of the vernal pool 

ecosystem and to the conservation of the 

San Diego fairy shrimp. 

Our Response: We have addressed 

this comment by providing a more 

detailed description of the primary 

constituent elements (PCEs) in this 

revised final rule. The boundaries of 

each critical habitat subunit generally 

correspond to the boundaries of 

functional watersheds surrounding the 

included vernal pool complexes. We 

have attempted to incorporate all of the 

features that the peer reviewer described 

that we have determined to be essential 

to the conservation of the San Diego 

fairy shrimp (see the Primary 

Constituent Elements section for further 

discussion of this topic). 

Public Comments 

INRMPs and Department of Defense 

Lands 

We received several comments related 

to the exclusion and exemption of 

Department of Defense (DOD) lands 

from the revised final critical habitat. 

We received comments from the U.S. 

Navy (Navy) regarding the proposed 

designation of critical habitat on Marine 

Corps Base Camp Pendleton (MCB 

Camp Pendleton), and separate 

comments regarding the proposed 

designation on Marine Corps Air Station 

Miramar (MCAS Miramar), Naval Radio 

Receiving Facility (NRRF), Naval 

Outlying Landing Field (NOLF), and 

Navy housing at Chollas Heights and 

Murphy Canyon under Naval Base 

Coronado. We also received comments 

from individuals, some stating that DOD 

lands should be designated as critical 

habitat, and others stating that DOD 

lands should not be encumbered by 

critical habitat. 

Comment 4: The Navy requested that 

critical habitat not be designated at MCB 

Camp Pendleton, MCAS Miramar, 

NRRF, and NOLF, based on approved 

INRMPs for these installations and 

adverse affects to military training and 

readiness. Another commenter also 

requested that military lands at MCB 

Camp Pendleton not be designated as 

critical habitat. 

Our Response: In the April 22, 2003, 

proposed rule to revise critical habitat 

for the San Diego fairy shrimp (68 FR 

19888), we considered but did not 

propose critical habitat on MCAS 

Miramar, NRRF, and on mission 

essential training areas at MCB Camp 

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

Act. The April 22, 2003, rule proposed 

to designate some non-training areas at 

MCP Camp Pendleton and at NOLF. In 

this revised final designation, we have 

determined that all the INRMPs in place 

at MCAS Miramar, NRRF, MCB Camp 

Pendleton, and NOLF provide a benefit 

to San Diego fairy shrimp, and therefore 

these lands are exempt from this revised 

final critical habitat under section 

4(a)(3) of the Act (see Exemptions and 

Exclusions section below for a detailed 

discussion of these exemptions). 

Comment 5: The Navy requested that 

critical habitat not be designated at the 

vernal pool areas at Murphy Canyon 

Navy Housing and Chollas Heights Navy 

Housing because they plan to complete 

an INRMP for these areas. The Navy 

continued to request that should critical 

habitat be designated at these areas that 

the Service commit to revisiting the 

designation upon the Navy’s completion 

of an INRMP or other management plan 

for these areas. 

Our Response: The vernal pool 

complexes at Murphy Canyon Navy 

Housing and Chollas Heights areas are 

not covered under an INRMP at this 

time; therefore they are not appropriate 

to consider for exemption under section 

4(a)(3) of the Act. The vernal pool 

complexes at Murphy Canyon Navy 

Housing and Chollas Heights areas have 

been preserved for the benefit of the San 

Diego fairy shrimp and other vernal 

pool species. The vernal pool complexes 

at these two Housing Areas provide high 

quality habitat for the San Diego fairy 

shrimp and are some of the last 

remaining areas in urban San Diego that 

support this species. We applaud the 

past conservation work that the Navy 

has implemented at these two housing 

areas, and we look forward to working 

with the Navy to minimize any financial 

or regulatory burden associated with 

this critical habitat designation. It is our 

understanding that the Navy is working 

to complete an INRMP that will include 

these two areas and will secure funding 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70651 

for the long-term management of these 

two areas for the benefit of the San 

Diego fairy shrimp. Features essential to 

the conservation of the San Diego fairy 

shrimp in these areas continue to 

require special management 

considerations and protections and are 

therefore included in this revised final 

designation. At such time as the Navy 

completes an INRMP for these areas, we 

can assess any benefits provided to the 

San Diego fairy shrimp and revise the 

designation through the rulemaking 

process consistent with available 

funding and program priorities. 

Comment 6: Some commenters stated 

that our exclusion of INRMPs is not 

legally or scientifically justified because 

the commenter believes that the 

INRMPs, specifically those for MCB 

Camp Pendleton and MCAS Miramar, 

do not adequately protect vernal pools 

or San Diego fairy shrimp. 

Our Response: Section 318 of 

National Defense Authorization Act for 

Fiscal Year 2004 (Pub. L. 108–136) 

amended section 4(a)(3) of Act to 

address the relationship of INRMPs to 

critical habitat by adding a new section, 

4(a)(3)(B). This amendment prohibits us 

from designating as critical habitat any 

lands or other geographical areas owned 

or controlled by DOD, or designated for 

its use, that are subject to an INRMP 

prepared under section 101 of the Sikes 

Act, if the Secretary of the Interior 

(Secretary) determines, in writing, that 

such plan provides a benefit to the 

species for which critical habitat is 

proposed for designation. Lands at MCB 

Camp Pendleton, MCAS Miramar, 

NRRF, and NOLF are exempt from 

critical habitat for the San Diego fairy 

shrimp under section 4(a)(3) of the Act 

as we have determined that these 

installations’ INRMPs benefit the San 

Diego fairy shrimp and features 

essential to its conservation (see 

Exemptions and Exclusions section 

below for a detailed discussion on 

exclusions and exemptions). We believe 

that these exemptions are legally and 

scientifically justified because 

implementation of these INRMPs will 

benefit the San Diego fairy shrimp and 

its habitat at each installation. 

Habitat Conservation Plans and Natural 

Community Conservation Plans 

We received several comments related 

to the exclusion or inclusion of Habitat 

Conservation Plans (HCPs) and Natural 

Community Conservation Plans 

(NCCPs). The comments that we 

received have been paraphrased and 

grouped to better clarify how we have 

handled HCPs and NCCPs in this 

revised final designation of critical 

habitat. 

Comment 7: We received comments 

that discussed the benefits of excluding 

critical habitat in areas covered by HCPs 

and NCCPs and comments that 

discussed the benefits of designating 

critical habitat in areas covered by HCPs 

and NCCPs. Commenters that supported 

the exclusion of areas covered by HCPs 

and NCCPs stated that these plans 

provide superior conservation than the 

section 7 process because HCPs and 

NCCPs plan for conservation at the 

landscape level rather than using a 

project-by-project approach. Supporters 

of the exclusion of critical habitat in 

these areas stated that the exclusion of 

critical habitat will: Benefit partnerships 

and future planning; prevent additional 

regulation; avoid legal challenges that 

HCPs will result in ‘‘adverse 

modification’’ of critical habitat; and 

support Implementation Agreements. 

Supporters of the designation of critical 

habitat in areas covered by HCPs and 

NCCPs stated that the designation of 

critical habitat provides additional 

protection and conservation benefit to 

the San Diego fairy shrimp, which is 

needed to avoid impacts that the HCPs 

and NCCPs do not protect against. Other 

commenters stated that HCPs and 

NCCPs are often under-funded, and 

actual implementation is sometimes 

ineffective. One commenter stated that 

the exclusion of areas covered by HCPs 

from critical habitat is neither legally 

sound nor appropriate as demonstrated 

by the October 13, 2006, ruling by the 

U.S. District Court for the Southern 

District of California (Southwest Center 

for Biological Diversity v. Bartel, CV 98–

2234), which clearly rules that the 

Multiple Species Conservation Program 

(MSCP) is ineffective, specifically for 

protecting the fairy shrimp. The 

commenter stated that the MSCP cannot 

act as a surrogate for critical habitat, and 

lands under the MSCP (and other HCPs) 

should not be excluded from critical 

habitat designation. 

Our Response: We believe that 

regional HCPs and NCCPs typically 

provide for greater conservation benefits 

to species than project-by-project 

consultations conducted under section 7 

of the Act. Because large HCPs approach 

conservation from a regional 

perspective, these plans have the 

advantage of addressing conservation 

issues from a coordinated, integrated 

perspective rather than a piecemeal 

project-by-project approach. Moreover, 

regional HCPs typically provide for the 

proactive monitoring and management 

of conserved lands, which is important 

to the survival and recovery of the San 

Diego fairy shrimp. Such conservation 

needs are typically not addressed 

through the application of the statutory 

prohibition on adverse modification or 

destruction of critical habitat. Section 

4(b)(2) of the Act authorizes the 

Secretary to consider the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

An area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate an area as critical habitat will 

result in the extinction of the species. 

We believe that the exclusions that we 

made in this final revised rule are 

legally supported under section 4(b)(2) 

of the Act and scientifically justified 

because of the level of protection and 

long-term conservation for the San 

Diego fairy shrimp that are a result of 

the HCPs that we have excluded. Please 

see the Exemptions and Exclusions 

section in this revised final rule for a 

detailed analysis on why we reaffirmed 

our 2003 determination that the benefit 

of excluding many of these areas from 

critical habitat is greater than the benefit 

of including them in a critical habitat 

designation. 

In response to the comment on the 

Southwest Center for Biological 

Diversity v. Bartel, (CV 98–2234) ruling, 

we have fully considered this significant 

information. In this challenge, brought 

by 14 environmental organizations, the 

court held that the protections afforded 

the San Diego fairy shrimp and six other 

vernal pool species under the City of 

San Diego’s MSCP subarea plan are 

inadequate, and the Service’s decision 

to issue an incidental take permit to the 

City based on the subarea plan was 

arbitrary and capricious. The court 

enjoined the incidental take permit with 

respect to ongoing and future land use 

activities that affect vernal pool habitat. 

The court concluded, in part, that the 

approach adopted in the City’s MSCP 

subarea plan for evaluating project 

impacts on vernal pool species through 

the ACOE’s site-specific permitting 

process under section 404 of the Clean 

Water Act had been effectively 

eliminated by the United States 

Supreme Court’s SWANCC decision and 

that the remaining protections 

contained in the MSCP subarea plan do 

not adequately protect the San Diego 

fairy shrimp. As a result of the decision, 

we have designated as critical habitat 

lands covered by the City of San Diego’s 

subarea plan that were considered, but 

not proposed, in the 2003 revised 

proposed rule (see Summary of Changes 

From Previously Designated Critical 

Habitat and 2003 Proposed Rule section 

mstockstill on PROD1PC66 with RULES2

70652 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

and Unit Descriptions section below for 

more details). 

Comment 8: Some commenters 

requested that we exclude pending 

HCPs and lands enrolled in the NCCP 

program be excluded under section 

4(b)(2) of the Act or that we remove 

designated critical habitat concurrent 

with the final approval of an HCP or 

NCCP. Commenters recommended the 

establishment of a set of standards for 

HCPs and NCCPs that would provide for 

the automatic removal of these areas 

from critical habitat at the time these 

plans are completed. Some commenters 

stated that the designation of critical 

habitat in these areas may have a 

negative effect on entities pursuing an 

HCP and deter the completion of these 

pending HCPs. Specifically, we received 

requests to exclude the following 

pending HCPs: the Orange County 

Southern Subregion Habitat 

Conservation Program (Southern 

Subregion HCP); the City of Carlsbad 

Habitat Management Plan (Carlsbad 

HMP) under the Northwestern San 

Diego County Multiple Habitat 

Conservation Program (MHCP); and the 

County of San Diego’s HCP covering the 

proposed critical habitat in Ramona. 

Our Response: Although we believe 

that an NCCP/HCP completed in the 

future will conserve the San Diego fairy 

shrimp if it is a covered species under 

the plan, we are not able to 

automatically remove designated critical 

habitat. In order to revise a critical 

habitat designation to take into 

consideration a completed NCCP or 

HCP, we are required under sections 

4(b)(5) and 4(b)(6) of the Act to follow 

the appropriate rulemaking process, 

consistent with available funding and 

program priorities. We have reanalyzed 

the areas that were covered by pending 

HCPs or NCCPs at the time we proposed 

critical habitat and we have made the 

following conclusions. The Southern 

Subregion HCP was completed on 

January 10, 2007. This plan provides for 

the conservation of the San Diego fairy 

shrimp in critical habitat subunits 1D 

and 1E. We have determined that the 

benefits of exclusion outweigh the 

benefits of inclusion for these subunits, 

and therefore we have excluded these 

subunits from critical habitat under 

section 4(b)(2) of the Act (see the 

Exemptions and Exclusion section for 

more details on this exclusion.) 

The Carlsbad HMP under the MHCP 

was completed on November 15, 2004. 

This plan provides for the conditional 

coverage of the San Diego fairy shrimp; 

however, the coverage of this species is 

contingent on the specific commitment 

to manage vernal pool habitat within 

this plan. At this time the City of 

Carlsbad has not committed to manage 

vernal pool habitat or include the area 

we identified as critical habitat within 

this plan (subunit 2G); therefore the 

Carlsbad HMP under the MHCP does 

not cover the San Diego fairy shrimp at 

this time, and we have not excluded 

lands covered under this plan from 

critical habitat. 

At this time the HCP for northern San 

Diego County is still in the process of 

being written. No draft of this plan is 

available for public review. Therefore, 

we have not excluded lands covered 

under this plan from critical habitat in 

and around Ramona (subunits 3E.1, 

3E.2, 3E.3, and 3E.4). 

Comment 9: We received comments 

requesting that we exclude the area 

covered by the San Diego Gas & Electric 

(SDG&E) NCCP/HCP. 

Our Response: We have reviewed the 

appropriateness of excluding lands 

covered by the SDG&E NCCP/HCP and 

determined that SDG&E does not own 

any lands containing features we have 

determined essential for the 

conservation of the San Diego fairy 

shrimp. Although SDG&E is bound by 

this NCCP/HCP on all easements and 

access roads that we have determined 

contain features essential to the 

conservation of the San Diego fairy 

shrimp, the actual owners of the land 

covered by the SDG&E NCCP/HCP are 

not bound by this plan. Therefore we 

believe it would be inappropriate to 

consider lands not under the control of 

SDG&E for exclusion based on the 

coverage provided in this NCCP/HCP. 

Comment 10: We received a comment 

requesting that we reaffirm our 

exclusion of the Orange County CentralCoastal NCCP/HCP (Central-Coastal 

NCCP/HCP) in this final revised critical 

habitat. 

Our Response: In the April 22, 2003, 

proposed rule to designate revised 

critical habitat for the San Diego fairy 

shrimp, we discussed the CentralCoastal NCCP/HCP and stated that areas 

essential to the San Diego fairy shrimp 

covered by this plan should be excluded 

from critical habitat. In our review of 

the proposed critical habitat we found 

that, although critical habitat subunits 

1A, 1B, and 1C are all near the boundary 

of this plan, there are no areas 

containing features essential to the San 

Diego fairy shrimp within the area 

covered by the Central-Coastal NCCP/ 

HCP. Furthermore, we do not know of 

any vernal pools occupied by the San 

Diego fairy shrimp within the area 

covered by the Central-Coastal NCCP/ 

HCP. Therefore, we have no reason to 

include a discussion of the CentralCoastal NCCP/HCP in this revised final 

designation of critical habitat. 

Other Comments on Inclusions, 

Exclusions, and Removals 

Comment 11: One commenter 

requested that we exclude the Shaw 

Lorenz project site on Del Mar Mesa 

from critical habitat based on the 

conservation actions that the developer 

of the site is undertaking as part of this 

development. 

Our Response: The vernal pool habitat 

on the Shaw Lorenz project site was not 

known to be occupied at the time of the 

proposed rule and the Shaw Lorenz 

project site was not considered in the 

proposed rule to revise critical habitat 

(68 FR 19888, April 22, 2003). 

Therefore, we are not designating lands 

at the Shaw Lorenz project site as 

critical habitat for the San Diego fairy 

shrimp. 

Comment 12: The Army Corps of 

Engineers (ACOE) raised the following 

issues in their comments: (1) Some 

lands owned by the Department of 

Homeland Security (DHS) within 

proposed critical habitat subunits 5D 

and 5F have already been disturbed and 

developed by the construction of the 14- 

Mile Border Infrastructure System (BIS) 

project along the United States/Mexico 

border and should be removed from 

critical habitat; (2) lands owned by the 

DHS located north of the BIS within 

proposed critical habitat subunit 5F are 

being conserved by the DHS and should 

not be designated as critical habitat 

under section 3(5)(A) or should be 

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

Act; and (3) lands within the footprint 

of the BIS do not or will not contain any 

of the PCEs for the San Diego fairy 

shrimp because of their use as an active 

enforcement zone subject to ongoing 

vehicular use. 

Our Response: We evaluated habitat 

on lands owned by the DHS within 

proposed subunits 5D and 5F, and 

removed or excluded all DHS-owned 

lands from this final designation. Some 

portions of the BIS project have already 

been completed and the habitat 

impacted no longer contains the PCEs 

essential to support the San Diego fairy 

shrimp; therefore, we removed these 

lands from the critical habitat 

designation. Please see the Summary of 

Changes From Previously Designated 

Critical Habitat and 2003 Proposed Rule 

section for more information about the 

removal of these lands from critical 

habitat. The remaining 29 ac (12 ha) of 

DHS-owned land within subunit 5F 

includes a vernal pool restoration site 

(Arnie’s Point) where the DHS is 

offsetting impacts to vernal pool habitat 

associated with the construction of the 

BIS. The DHS is implementing 

conservation measures for the San Diego 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70653 

fairy shrimp at Arnie’s Point even 

though they have a waiver exempting 

them from obligations under section 7 of 

the Act. The entire strip of DHS lands 

(29 ac (12 ha)) along the U.S./Mexico 

border that meet the definition of 

critical habitat are important to national 

security. We determined that the 

benefits of excluding this area from 

critical habitat outweigh the benefits of 

including this area in critical habitat. A 

detailed discussion of our rationale for 

excluding these lands is provided in the 

Exemptions and Exclusions section of 

this revised final rule. 

Comment 13: One commenter 

disagreed with our proposed critical 

habitat unit for the land in East Otay 

Mesa. The commenter stated that some 

of the areas proposed as critical habitat 

have been developed. The commenter 

concluded that the mapping of the 

critical habitat is inaccurate. Another 

commenter provided comments on a 

specific area on Otay Mesa. This 

commenter stated that proposed critical 

habitat subunit 5D is completely within 

either the City of San Diego subarea 

plan under the MSCP or the County of 

San Diego subarea plan under the 

MSCP. The commenter added that a 

significant portion of the proposed 

critical habitat in subunit 5D, including 

nearly 100 percent of the Otay Crossings 

Commerce Park project, is within the 

MSCP boundaries. The commenter 

stated that the inclusion of the MSCP 

land in critical habitat is counter to the 

involvement of the Service in the HCP 

process. The commenter stated that the 

Otay Crossings Commerce Park project 

site has been surveyed repeatedly for 

vernal pools and San Diego fairy shrimp 

and only vernal pools that were present 

on the site in the recent past have been 

eliminated by the construction of the 

BIS project. The commenter indicated 

that the East Otay Mesa area supports 

relatively few known locations of the 

listed San Diego fairy shrimp, and that 

these locations are scattered and are not 

vernal pool complexes. The commenter 

stated that the mesa area generally 

slopes to the south, providing limited 

flat areas where fairy shrimp pools 

could become established. The 

commenter concluded that the 

designation of this area as critical 

habitat for the San Diego fairy shrimp 

would not afford additional benefits to 

the species and would not play a 

significant role in the species’ recovery. 

Our Response: The area identified in 

the April 22, 2003, proposed rule to 

revise critical habitat for San Diego fairy 

shrimp on East Otay Mesa was 

reevaluated at the suggestion of the 

commenters. Some of the land proposed 

as critical habitat was removed because 

it did not contain the PCEs, such as the 

lands owned by the DHS in subunit 5D. 

However, we found that the majority of 

the area was appropriately mapped and 

is included in the revised final 

designation. The areas we are 

designating as critical habitat contain 

the features essential for the 

conservation of the San Diego fairy 

shrimp. Critical habitat subunit 5D on 

eastern Otay Mesa contains vernal pools 

that support known locations of the San 

Diego fairy shrimp and the watershed 

area necessary to maintain the vernal 

pools. The area designated as critical 

habitat gently slopes to the south and 

contains several vernal pools dispersed 

across an area of approximately 391 ac 

(158 ha). The area on East Otay Mesa 

included in the designation is relatively 

undamaged by development and offroad vehicle activity. This area is 

entirely within the County of San 

Diego’s Major and Minor Amendment 

Areas of the MSCP, which are not 

covered as part of the County’s 

approved MSCP subarea plan. 

Therefore, it is not appropriate to 

exclude these lands because of their 

location within the boundaries of the 

MSCP (see Exemptions and Exclusions 

section below for a detailed discussion). 

Criteria and Methodology 

Comment 14: Some commenters 

stated that the Service has deferred 

determination of whether specific areas 

contain PCEs, leaving landowners 

without effective notice as to whether 

their property contains critical habitat. 

Our Response: We have determined 

that all of the designated units contain 

all of the PCEs (see Unit Descriptions 

section below). In our proposed rule, we 

provided a description of the PCEs and 

maps of the areas that we proposed for 

critical habitat in the Federal Register. 

Additional maps showing all areas 

containing features arranged in the 

quantity and spatial configuration 

essential for the conservation of the San 

Diego fairy shrimp were made available 

to the public for review and comment 

on our Web site. Also, the contact 

information for the Carlsbad Fish and 

Wildlife Office was provided to the 

public. These resources were readily 

available to any landowner with a 

question regarding the critical habitat 

proposal, including the PCEs. We 

believe these measures effectively 

notified landowners concerning the 

proposed revised designation of critical 

habitat. 

Furthermore, in this revised final rule, 

we have re-evaluated all units and 

removed any areas that do not contain 

the PCEs (see Summary of Changes 

From Previously Designated Critical 

Habitat and 2003 Proposed Rule section 

below). Where possible, the boundaries 

of final critical habitat have been refined 

to remove lands containing features 

such as roads, buildings, and other 

infrastructure that do not contain the 

PCEs; however, it was not possible to 

exclude all such areas from the 

designation. The scale of the maps we 

prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed areas. Any 

such structures and the land under them 

inadvertently left inside critical habitat 

boundaries shown on the maps of this 

revised final rule have been excluded by 

text and are not designated as critical 

habitat. Please refer to the Criteria Used 

to Identify Critical Habitat section below 

for more information about the mapping 

methodology. Landowners needing 

assistance in determining whether their 

property lies within designated critical 

habitat can contact the Carlsbad Fish 

and Wildlife Office for assistance (see 

ADDRESSES). 

Comment 15: One commenter 

indicated that the mapping 

methodology to identify areas for 

critical habitat is too general, and does 

not adequately account for site-specific 

analysis of the size and attributes of the 

vernal pools. Another commenter 

indicated that we had no scientific basis 

for using a 328 feet (ft) (100 meters (m)) 

grid for mapping of critical habitat. 

Our Response: In the April 22, 2003, 

proposed rule we used a 328 feet (ft) 

(100 meters (m)) grid to delineate 

critical habitat. In order to make our 

mapping more specific we are no longer 

using the 328 feet (ft) (100 meters (m)) 

grid, instead we are mapping the 

specific areas that contain the PCEs for 

this species. We used a number of data 

sources to map the vernal pool 

complexes identified as critical habitat 

in this revised final rule. The vernal 

pool and San Diego fairy shrimp data 

referenced for this revised final rule 

include: Beauchamp and Cass 1979 (pp. 

1–15), Zedler and Ebert 1979 (pp. 1–

150), Bauder 1986 (pp. 1–29, 

Appendices), City of San Diego 2003 

(pp. 1–125, Appendices), survey reports 

for San Diego fairy shrimp from 

10(A)(1)(a) permits, and California 

Natural Diversity Database (CNDDB) 

(2004, 2007) information. In addition to 

this location data for vernal pools and 

San Diego fairy shrimp, we used 

topographical maps, soil maps (Bowman 

1973, pp. 7–17), and aerial imagery to 

capture the PCEs associated with each 

vernal pool complex designated as 

critical habitat. We also relied on 

information obtained from site visits to 

vernal pool complexes to verify the 

mstockstill on PROD1PC66 with RULES2

70654 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

presence of the PCEs in the areas that 

we identified as critical habitat. 

Comment 16: One commenter stated 

that it is important to designate the 

entire area within each vernal pool 

complex, including the watershed of the 

vernal pool, in order to provide habitat 

for animals that are vectors for dispersal 

of San Diego fairy shrimp cysts. Another 

commenter provided similar 

information to specific vernal pool 

complexes in San Marcos, California. 

Our Response: This revised final 

designation includes vernal pool basins 

and the associated watersheds necessary 

to support the San Diego fairy shrimp; 

however, we did not include larger 

areas of habitat needed for animal 

dispersal vectors. We did not have 

enough specific information on this 

topic to include other areas with any 

degree of certainty. We believe that our 

discussion of the PCEs adequately 

captures the physical and biological 

features essential for conservation of the 

San Diego fairy shrimp (see Primary 

Constituent Elements section below for 

details). The information regarding 

vernal pool complexes added to the 

information that we previously had on 

the vernal pools in San Marcos; 

however, it did not significantly change 

our analysis of this area. 

Comment 17: One commenter stated 

that stochastic (random) events could 

drive the species to extinction since it 

no longer has the ability to meet the 

challenges of environmental or humancaused stress. The commenter stated 

that the exclusion of any area from 

critical habitat could result in the 

extinction of the San Diego fairy shrimp. 

Our Response: We agree that 

stochastic events could negatively 

impact the San Diego fairy shrimp 

throughout its range. We reaffirmed our 

2003 determination to exclude areas 

covered by HCPs that provide for the 

conservation of vernal pool habitat and 

the San Diego fairy shrimp because 

these plans incorporate management 

and monitoring for vernal pool 

ecosystems. As environmental 

conditions change, management of these 

areas will also change to address new 

threats to the species and its habitat. 

The areas we excluded also provide for 

management actions to address human 

induced stresses such as off-road 

vehicle use or the illegal dumping of 

trash in preserve areas. We determined 

the exclusion of these areas from critical 

habitat designation under section 4(b)(2) 

of the Act will not result in the 

extinction of the San Diego fairy shrimp 

(see Exemptions and Exclusions section 

below for a detailed discussion). 

Comment 18: Several commenters 

requested that the Service expand the 

proposed critical habitat to include all 

essential vernal pools identified in the 

Recovery Plan for Vernal Pools of 

Southern California (recovery plan) 

(Service 1998a), including the vernal 

pools listed in appendices F and G. 

Our Response: We believe that this 

final revised critical habitat reflects the 

intent of the recovery plan (Service 

1998a). The 1998 recovery plan outlined 

four recovery criteria for the seven 

federally listed vernal pool species 

occurring in Southern California. In sum 

the recovery criteria state that: (1) 

Existing vernal pools and their 

associated watersheds that contain a 

federally-listed species should be 

secured for that specific supported 

species; (2) existing vernal pools and 

their associated watersheds need to be 

secured in a configuration that 

maintains habitat function and species 

viability (as determined by future 

research); (3) secured vernal pools be 

enhanced or restored such that 

population levels of existing species are 

stabilized or increased; and (4) 

population trends must be shown to be 

stable or increasing for a minimum of 10 

years prior to reclassification (Service 

1998a, pp. iv–vi; pp. 62–64T). The 

intent of the recovery criteria is to 

identify, protect existing vernal pools, 

and, as necessary, restore degraded 

vernal pool habitat within the range of 

the San Diego fairy shrimp. Appendices 

F and G of the recovery plan identified 

vernal pool complexes needed to 

stabilize or reclassify the San Diego fairy 

shrimp to threatened status based on 

information available to the Service in 

1998. Since that time we have gained 

additional information about the 

relative significance and current status 

of vernal pool areas identified in 

appendices F and G, and we have 

identified several important areas that 

were discovered to be occupied by the 

San Diego fairy shrimp after the 

recovery plan was completed that are 

not analyzed in the recovery plan. The 

areas designated in this rule reflect our 

current assessment, based on the best 

available information, of habitat 

essential to the conservation of the 

species. Please see Table 1 and the 

Summary of Changes From Previously 

Designated Critical Habitat and 2003 

Proposed Rule section below for a full 

discussion. 

Comment 19: One commenter stated 

that the San Diego fairy shrimp has 

already gone extinct in Los Angeles and 

Orange counties and that it is close to 

extinction in Riverside and Ventura 

counties. The commenter indicated that 

all remaining habitat throughout the 

species’ range is essential to the species’

survival and will require special 

management. The commenter stated that 

we should designate critical habitat in 

areas where new vernal pools have been 

found since the publication of the 

proposed rule in April 2003. 

Our Response: This commenter is 

incorrect about the historical 

distribution of the San Diego fairy 

shrimp. The best available scientific 

information indicates that the San Diego 

fairy shrimp has always been restricted 

to Orange and San Diego counties in the 

United States and to northwestern Baja 

California in Mexico. There is a single 

record of a female fairy shrimp in Santa 

Barbara County; however, the site where 

this fairy shrimp was collected from has 

been revisited and there is no 

corroborating evidence indicating San 

Diego fairy shrimp occupy this area. We 

believe this original report was an error. 

The San Diego fairy shrimp has never 

been reported from Los Angeles, 

Riverside, or Ventura counties. The San 

Diego fairy shrimp is still present in 

Orange County. The commenter did not 

provide specific information on the 

vernal pool complexes that they believe 

are essential to the conservation of the 

San Diego fairy shrimp, so we cannot 

address the reasons that these areas 

were not included in critical habitat. In 

addition, we have not evaluated new 

occurrences discovered after the 2003 

proposed rule to determine whether 

they are essential to the conservation of 

the species. In light of the fact that the 

commenter did not provide any specific 

data and that we have not evaluated 

new occurrences, it would not be 

appropriate to include these 

occurrences in the final rule. Section 4 

of the Act allows for revision of any 

critical habitat designation as 

appropriate to evaluate and include new 

information through the full rulemaking 

process allowing for public comment on 

all proposed lands. 

Policy and Procedures 

Comment 20: The ACOE requested 

clarification of the definition of 

‘‘destruction or adverse modification’’ of 

critical habitat. 

Our Response: Concerning the 

ACOE’s request for a clarification of 

‘‘destruction or adverse modification’’ of 

critical habitat, we have revisited the 

regulatory definition of adverse 

modification in relation to the species’

conservation. Recent decisions by the 

Fifth and Ninth Circuit Court of Appeals 

have invalidated our regulatory 

definition of ‘‘adverse modification’’ at 

50 CFR 402.02 (see Gifford Pinchot Task 

Force v. U.S. Fish and Wildlife Service, 

378 F. 3d 1059 (9th Cir 2004) and Sierra 

Club v. U.S. Fish and Wildlife Service, 

245 F.3d 434, 442F (5th Cir 2001)). 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70655 

Consistent with the statutory provisions 

of the Act, we determine destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the PCEs 

to be functionally established) to serve 

the intended conservation role for the 

species. 

Comment 21: One commenter stated 

an environmental impact statement 

(EIS) as defined under the National 

Environmental Policy Act (NEPA) 

should be written to address the 

potential significant impacts from the 

designation of San Diego fairy shrimp 

critical habitat. 

Our Response: It is our position that, 

outside the Tenth Circuit Court, we do 

not need to prepare environmental 

analyses as defined by NEPA in 

connection with designating critical 

habitat under the Act. We published a 

notice outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

position was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 116 S. Ct. 698 

(1996)). 

Comment 22: Some commenters 

stated that it was unclear how critical 

habitat designation would affect private 

landowners. 

Our Response: The designation of 

critical habitat does not affect State, 

local, private or other non-Federal 

landowners unless a project requires 

Federal funding, permits, or 

authorization. Critical habitat does not 

affect land ownership or establish a 

refuge, preserve, or other special 

conservation area. It does not allow 

government or public access to private 

lands, and will not result in the closure 

of an area to all access or use. Please 

refer to the Effects of Critical Habitat 

Designation section below for more 

information. 

Comment 23: One commenter 

reiterated the Service’s mandate to 

follow Secretarial Order 3206 and 

Executive Order 13175 regarding 

consultation and coordination with 

Tribal governments when deciding to 

propose critical habitat on Tribal lands. 

Our Response: Executive Order 13175 

and Secretarial Order 3206 direct the 

United States government, and 

specifically the Service, to establish 

regular and meaningful consultation 

and collaboration with Tribal officials in 

the development of Federal policies that 

have Tribal implications, to strengthen 

the government-to-government 

relationships with Tribes, and reduce 

the imposition of unfunded mandates 

upon Tribes. In the case of San Diego 

fairy shrimp, there are no known 

occurrences of this species on Tribal 

lands, nor is there any habitat essential 

for the conservation of the San Diego 

fairy shrimp on Tribal lands. Therefore, 

no critical habitat is designated for this 

species on Tribal lands. 

Comment 24: One commenter 

requested that we extend the comment 

period on the proposed designation and 

DEA. 

Our Response: Following the 

publication of the proposed critical 

habitat designation on April 22, 2003, 

we opened a 60-day public comment 

period that closed on June 23, 2003, and 

conducted outreach notifying affected 

elected officials, local jurisdictions, 

interest groups, and property owners. 

We conducted much of this outreach 

through legal notices in regional 

newspapers, telephone calls, letters, and 

news releases faxed and/or mailed to 

affected elected officials, local 

jurisdictions, and interest groups, and 

publication of the proposed designation 

and associated material on our Web site. 

We prepared a DEA of the proposed 

critical habitat designation, which we 

made available to the public on April 8, 

2004 (68 FR 18516). The public 

comment period was reopened through 

May 10, 2004. During this comment 

period, two public hearings were held 

on April 29, 2004, from 1 p.m. to 3 p.m. 

and from 6 p.m. to 8 p.m. in Carlsbad, 

California. We provided notification of 

the DEA through telephone calls and 

letters and news releases faxed and/or 

mailed to affected elected officials, local 

jurisdictions, and interest groups. We 

also published the DEA and associated 

material on our Web site following the 

draft’s release on April 8, 2004. A third 

period for public comment was opened 

from April 3, 2007, to May 3, 2007. In 

addition, several public comment 

periods were held on our earlier 

proposed and final critical habitat rules, 

which are similar in many respects to 

the current proposed and final rule. 

Because of our obligation to meet the 

deadline established in settlement of 

litigation involving critical habitat 

designation for the San Diego fairy 

shrimp, we were not able to extend or 

open an additional public comment 

period. 

Economic Analysis 

Comment 25: Some commenters 

stated, in general, that we should 

exclude areas from critical habitat due 

to the significant economic impacts 

associated with the designation of 

critical habitat. 

Our Response: We have not excluded 

any lands based on disproportionate 

economic impacts to a property. We 

have responded to comments that 

provided us with specific information 

and maps requesting economic 

exclusions below. 

Comment 26: One commenter stated 

that the placement of critical habitat 

over subunit 5D, especially the Otay 

Crossings Commerce Park project, will 

only divert limited staffing and financial 

resources towards addressing critical 

habitat issues instead of focusing on the 

successful implementation of the MSCP. 

Our Response: As discussed above in 

the response to Comment 15 we 

reanalyzed subunit 5D. We removed all 

areas in this subunit that do not contain 

features essential to the conservation of 

the San Diego fairy shrimp. However, a 

large portion of subunit 5D has been 

designated because it contains features 

in quantity and spatial arrangement 

essential to the conservation of the San 

Diego fairy shrimp, i.e., PCEs (Please see 

Criteria Used to Identify Critical Habitat 

section). Our economic analysis of 

subunit 5D did not indicate that the 

economic impacts in this subunit were 

substantially different from other areas 

included in critical habitat, therefore we 

have not excluded this area due to 

disproportionate economic impacts. 

Comment 27: One commenter stated 

that the Service’s appreciation for, and 

earlier estimates of, the cost of the 

shrimp’s listing have proven low. The 

commenter stated that delays in 

development associated with the 

breakdown of the MSCP/section 7 of the 

Act consultation process have been 

high. The commenter stated that the 

aftermath of the Southwest Center for 

Biological Diversity v. Bartel (CV 98–

2234) decision has increased those 

costs. The commenter stated that a small 

property or project with a debt of just 

$10 million, for example, will see an 

additional cost in interest alone of 

approximately $50,000 per month of 

delay in the section 7 consultation 

process. Large projects with massive 

early expenditure on design, drawings, 

and the California Environmental 

Quality Act (CEQA) planning process, 

as well as sunk development costs will 

have incurred and will continue to 

incur extraordinary carrying costs too 

large to calculate except by the agency 

with access to all of the projects delayed 

and their sunk costs and carry costs. 

The commenter stated that the new 

rulemaking obliges the Service to list 

the projects, public and private, delayed 

by the ruling and the breakdown of the 

section 7 consultation process and use 

the costs to those projects as the 

minimum cost to date of the critical 

habitat designation while also 

calculating the additional cost of going 

mstockstill on PROD1PC66 with RULES2

70656 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

forward. The commenter stated that the 

economic analysis should also include a 

reasonable analysis of the impact of a 

critical habitat designation on that land 

not yet under development but newly 

burdened with this designation. 

Another commenter echoed these 

comments and stated that the result of 

a critical habitat designation would 

cause land owners to enter into a 

section 7 consultation with the Service. 

The commenter stated that this 

consultation process would lengthen the 

time and increase the cost to process 

projects. The commenter added that 

adding to the regulatory burden does 

not make sense since the MSCP was 

created to expedite the processing of 

projects within the County while 

providing for the long-term survival of 

fairy shrimp within the preserve lands. 

Our Response: The draft economic 

analysis (DEA) addresses potential costs 

that a private land development may 

incur from the designation of critical 

habitat. It is not necessarily the case that 

delays for development projects will 

result from the designation of critical 

habitat. The need to complete section 7 

consultations in and of itself does not 

automatically delay private 

development projects; these 

consultations can generally be 

coordinated with baseline land use 

regulatory processes and do not 

necessarily increase the time to obtain 

approvals. The DEA identified projects 

that were currently being processed (i.e., 

those that are reasonably foreseeable) or 

had been recently completed as the 

most likely projects to be delayed by the 

designation of critical habitat. The DEA 

analyzed the cost that these projects 

may incur and incorporated this 

information into the analysis. Please see 

the section Time-Delay Costs of the DEA 

(Economic and Planning Systems, Inc. 

2004, pp. 53–55). Further, the economic 

costs associated with development 

delays resulting from the Southwest 

Center for Biological Diversity v. Bartel 

(CV 98–2234) decision are not the result 

of the existing critical habitat 

designation or of the revised critical 

habitat designation. Rather they are the 

result of the court’s determination that 

there are deficiencies in the City of San 

Diego subarea plan under the MSCP and 

in the Service’s decision to issue an 

incidental take permit based on the 

plan. In the aftermath of SWANCC and 

Rapanos it is not clear to what extent 

projects affected by the Southwest 

Center for Biological Diversity v. Bartel 

(CV 98–2234) decision are likely to have 

a Federal nexus that would trigger 

consultation under section 7 of the Act 

and an examination of the projects’

impacts on critical habitat. 

Comment 28: One commenter stated 

that the DEA was flawed because it used 

existing HCPs and INRMPs that are 

already in place as a baseline for the 

economic analysis. The commenter 

indicated that the use of baseline 

conditions underestimates the economic 

cost of the designation. The commenter 

also stated that the DEA fails to take into 

account the impact of the designation of 

critical habitat on the housing market or 

on transportation projects. 

Our Response: The economic analysis 

used baseline conditions and 

regulations that are already in place for 

the economic analysis because the 

designation of critical habitat will not 

alter existing conditions. In areas that 

do not have existing HCPs or other 

regulations that provide for the 

regulation of San Diego fairy shrimp 

habitat, the economic analysis 

highlights the possible costs that may be 

due to the designation of critical habitat. 

We believe that the economic analysis 

did address both impacts on the housing 

market and transportation projects by 

analyzing the impacts of critical habitat 

on private land development and on 

road construction and maintenance. 

Comment 29: Commenters stated that 

the DEA should use case studies rather 

than cost estimates or projections and 

that the economic analysis should be 

released to the public prior to the final 

designation of critical habitat. Other 

commenters stated that the economic 

analysis should be completed prior to 

proposing critical habitat. 

Our Response: We agree that cost 

estimates derived from real examples 

are preferable. To the extent possible, 

our economic analysis is derived from 

actual cost information collected in the 

preparation of the economic analysis 

and during the comment periods. The 

DEA was made available for public 

review and comment prior to the final 

designation of critical habitat. Under 50 

CFR 424.19, we are not required to 

consider the probable economic impacts 

of designating a particular area as 

critical habitat until after critical habitat 

is proposed. There were two comment 

periods for the public to provide input 

on the DEA, one opened on April 8, 

2004, and closed May 10, 2004 (69 FR 

18516), the other opened on April 3, 

2007, and closed May 3, 2007. There 

were also public hearings on April 29, 

2004, from 1 p.m. to 3 p.m. and from 6 

p.m. to 8 p.m. in Carlsbad, California, to 

provide comments on the DEA. An 

additional comment period was opened 

from April 3, 2007, to May 3, 2007, on 

the DEA and proposed rule. The final 

designation takes into consideration the 

findings of the DEA, and comments and 

information submitted to us regarding 

the DEA. 

Comments From State Agencies 

Comment 30: California Department 

of Fish and Game (CDFG) supported the 

exclusion of Natural Communities 

Conservation Plans (NCCP)/HCPs that 

include the San Diego fairy shrimp as a 

covered species. Additionally, CDFG 

also requested that land designated as 

critical habitat be automatically 

removed from such designation upon 

approval of an NCCP. 

Our Response: Although we agree 

with CDFG that an approved NCCP/HCP 

likely provides a conservation benefit to 

the species covered by that particular 

plan and should be considered for 

exclusion from critical habitat 

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

Act, we are not able to automatically 

remove designated critical habitat from 

areas once an NCCP/HCP is approved. 

In order to revise a critical habitat 

designation to take into consideration a 

completed NCCP or HCP, we are 

required under sections 4(b)(5) and 

4(b)(6) of the Act to follow the 

appropriate rulemaking process. If an 

NCCP or HCP that includes the San 

Diego fairy shrimp as a covered species 

is approved subsequent to the 

designation of critical habitat for the 

species, we can reassess the critical 

habitat boundaries and revise such 

designation through the rulemaking 

process, consistent with available 

funding and program priorities. 

Comment 31: CDFG requested that 

State-owned land on Del Mar Mesa be 

excluded from the revised final 

designation of critical habitat. 

Our Response: The State-owned lands 

on Del Mar Mesa are intermingled with 

other conservation lands on Del Mar 

Mesa under Federal, local, and private 

ownership. We have determined that 

many of these lands meet the definition 

of critical habitat and contain the 

features essential to the conservation of 

the SDFS; we are designating these 

lands (including State-owned lands) as 

critical habitat in this final rule. Several 

landowners, including the State, are 

working together toward preservation 

and management of the vernal pools on 

Del Mar Mesa and we applaud this 

effort. The ‘‘Del Mar Mesa Preserve’’

lands are essential for the conservation 

of the San Diego fairy shrimp because 

they consist of one of the largest 

continuous blocks of largely 

undisturbed mesa topography, on nonmilitary land, remaining in San Diego 

County. The area contains several 

hundred vernal pools occupied by San 

Diego fairy shrimp and other sensitive 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70657 

vernal pool species. The lands that 

contain the features essential for the 

conservation of the San Diego fairy 

shrimp on Del Mar Mesa are part of the 

area that is within the City of San Diego 

subarea plan under the MSCP. 

Consistent with the City’s subarea plan, 

a draft management plan for the Del Mar 

Mesa Preserve has been written (Recon 

2002); however, the plan has not been 

finalized or implemented. As 

recognized in the plan, the Del Mar 

Mesa Preserve requires integrated 

management to control threats 

associated with off-road vehicle use and 

illegal dumping; however, the Del Mar 

Mesa Preserve lands are not adequately 

fenced or otherwise managed. Funding 

to implement the draft management 

plan has yet to be identified. Although 

we considered, but did not propose 

lands covered by the City of San Diego 

subarea plan under the MSCP under 

section 4(b)(2) in the proposed rule; we 

have determined that it is inappropriate 

to exclude lands within the City of San 

Diego subarea plan (including Stateowned lands) under the MSCP (see 

Summary of Changes From Previously 

Designated Critical Habitat and 2003 

Proposed Rule section and Exemptions 

and Exclusions section below for a 

detailed discussion). 

Summary of Changes From Previously 

Designated Critical Habitat and 2003 

Proposed Rule 

On October 3, 2000, we designated 

five units comprising a total of 4,025 ac 

(1,629 ha). We proposed to revise this 

designation to 6,098 ac (2,468 ha) on 

April 22, 2003 (68 FR 19888). The areas 

designated in this revised final rule 

constitute a revision of the areas we 

proposed as critical habitat for San 

Diego fairy shrimp on April 22, 2003 (68 

FR 19888). In addition, all of the land 

designated in this revised final rule was 

considered for critical habitat in the 

2003 proposed rule. In this section we 

present the differences between what 

was designated in 2000, what was 

proposed in 2003, and what is included 

in this final designation. 

1. The 2000 final critical habitat 

designation (65 FR 63438, October 3, 

2000) consisted of five units totaling 

4,025 ac (1,629 ha). This revision to 

designated critical habitat also includes 

five units totaling 3,082 ac (1,248 ha). 

The five units in this revision generally 

correspond to the previously designated 

five critical habitat units, though some 

vernal pool complexes have been added 

to units where occupancy of the San 

Diego fairy shrimp has been identified 

outside of previously designated critical 

habitat. Additionally, we have refined 

our mapping techniques (as detailed 

below) and used data to limit the critical 

habitat designation to those areas that 

contain the features essential to the 

conservation of the species that may 

require special management 

considerations or protection. 

2. In the 2000 critical habitat rule (65 

FR 63438, October 3, 2000), the 

descriptions of unit boundaries were 

delineated on Universal Transverse 

Mercator (UTM) gridlines set on a 820 

ft (250 m) grid. In the 2003 revised 

proposed designation, we based the 

critical habitat boundary descriptions 

on UTM gridlines set every 100 m (328 

ft). These square grids were overlaid on 

areas determined to contain the PCEs 

required by the species. Portions of 

these grid squares did not contain PCEs, 

and were inadvertently included within 

the boundaries of the critical habitat 

designation due to mapping limitations. 

The use of UTM gridlines was the best 

available methodology to digitize 

critical habitat boundaries and provide 

UTM coordinates to the public of the 

boundaries at the time of the 2000 final 

designation and 2003 proposed 

designation. We are now able to 

delineate critical habitat unit 

boundaries by screen-digitizing habitat 

polygons using ArcMap, a computer 

Geographic Information System (GIS) 

program. We have used this 

methodology to produce boundaries 

associated more precisely with areas 

that we determined contain the PCEs for 

the species and are essential for the 

conservation of the San Diego fairy 

shrimp, and removed large areas of 

habitat that do not contain the features 

essential to the conservation of the 

species (see the ‘‘Criteria Used to 

Identify Critical Habitat’’ section for a 

detailed discussion). 

3. As a result of comments received, 

we made editorial changes to the 

sections of the rule pertaining to the 

background, the PCEs, the criteria used 

to identify critical habitat, and the unit 

descriptions. We made these changes to 

eliminate redundancy, improve clarity, 

and provide a more in-depth 

explanation of the biological 

requirements of the San Diego fairy 

shrimp. We have revised the PCE 

section since publication of the 2000 

critical habitat rule (65 FR 63438, 

October 3, 2000) to include more 

information about how we developed 

the PCEs. We added more specific 

information relating to: the ponding 

duration and depth required by the San 

Diego fairy shrimp (PCE 1); surrounding 

upland areas that vernal pools need to 

function naturally (PCE 2); and the soils 

that vernal pools are known to form on 

(PCE 3). We also provided additional 

information in our Criteria Used to 

Identify Critical Habitat Section to 

increase the transparency of the critical 

habitat designation. We provided 

information to better explain how we 

identified which vernal pool complexes 

contain the features essential to the 

conservation of the San Diego fairy 

shrimp, and how we delineated the 

areas that contain the PCEs for each 

critical habitat subunit. 

4. The 2000 designation (65 FR 63438, 

October 3, 2000) and the 2003 proposed 

revision (68 FR 19888, April 22, 2003) 

broadly included upland habitat 

surrounding many vernal pools. Much 

of the surrounding upland habitat did 

not contain the PCEs. Furthermore, the 

2000 designation (65 FR 63438, October 

3, 2000) and the 2003 proposed revision 

(68 FR 19888, April 22, 2003) included 

habitat that does not contribute to any 

vernal pool watershed; for example, 

these rules included lands that are 

down-slope from vernal pool 

complexes. We used recent aerial 

imagery to determine where 

development has occurred, and 

removed any lands from this revision 

that do not contain the PCEs nor 

support the species. We also removed 

areas that do not contribute to any 

vernal pool watershed and have no 

affect on the ability of the San Diego 

fairy shrimp to persist or be recovered 

within a vernal pool watershed, and are 

therefore not essential to the 

conservation of this species. The 

majority of these lands were on the 

edges of an area considered for 

designation. 

5. The 2000 critical habitat rule (65 

FR 63438, October 3, 2000), the 2003 

proposed revision (68 FR 19888, April 

22, 2003), and this final designation are 

all largely based on the 1998 recovery 

plan. The San Diego fairy shrimp was 

first taxonomically described in 1993 

(Fugate 1993, pp. 296–304). The species 

was subsequently listed as endangered 

in 1997, and included in a recovery plan 

for seven vernal pool species (two 

invertebrates and five plants) in 

southern California published the 

following year. The 1998 recovery plan 

outlined four recovery criteria for the 

seven federally listed vernal pool 

species. In sum the recovery criteria 

state that: (1) Existing vernal pools and 

their associated watersheds that contain 

a federally listed species should be 

secured for that specific supported 

species; (2) existing vernal pools and 

their associated watersheds need to be 

secured in a configuration that 

maintains habitat function and species 

viability (as determined by future 

research); (3) secured vernal pools be 

enhanced or restored such that 

population levels of existing species are 

mstockstill on PROD1PC66 with RULES2

70658 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

stabilized or increased; and (4) 

population trends must be shown to be 

stable or increasing for a minimum of 10 

years prior to reclassification (Service 

1998a, pp. iv–vi; pp. 62–64). In 

addition, the 1998 recovery plan 

included appendices that identified 

specific vernal pool complexes as 

‘‘necessary to stabilize the proposed and 

listed vernal pool’’ (appendix F) and 

other vernal pool complexes as 

‘‘necessary to reclassify the proposed 

and listed vernal pool species’’

(appendix G). The recovery plan did not 

explain how the vernal pool complexes 

listed in these appendices were 

identified for inclusion on the list nor 

why other occupied vernal pool 

complexes were not included in these 

appendices. Task 113, which relates to 

criteria 1, recognizes that certain pools 

within any vernal pool complex may 

not be necessary to maintain habitat 

function and species viability (Service 

1998a, p. 66). As illustrated in Table 1, 

the 2000 critical habitat designation 

included many, but not all of the vernal 

pools identified in appendices F and G 

of the recovery plan. Likewise, the 2003 

proposed revision included many, but 

not all, of the vernal pools identified in 

appendices F and G and also added 

several occupied vernal pools that were 

either not identified in the recovery 

plan, or were identified but not 

included in appendices F and G. In this 

final designation, we reanalyzed all 

vernal pool complexes identified in the 

recovery plan and reviewed all data 

identifying additional vernal pool 

complexes occupied by the San Diego 

fairy shrimp to determine which vernal 

pool complexes are essential to the 

conservation of this species, including 

the surrounding watershed necessary to 

support the complex. 

As a consequence, this final revision 

to critical habitat does not include some 

lands that were identified in the 

recovery plan for which we have no 

data documenting historical or existing 

occupancy by the species or that, 

because of location, we do not believe 

would contribute meaningfully to the 

conservation of the species. Though the 

recovery plan focused predominantly on 

protecting existing habitat, the recovery 

plan did include other tasks to 

reestablish vernal pool habitat based on 

historical structure and composition to 

increase genetic diversity and 

population stability (Service 1998a, p. 

69). The recovery plan noted that 

historical distributions of vernal pool 

species can be reconstructed and the 

landscape restored sufficiently to allow 

for the reestablishment and expansion 

of populations, where necessary 

(Service 1998a, p. 71). At this time, we 

have not identified any specific areas 

within the extant range of the San Diego 

fairy shrimp where this species should 

be reestablished; therefore we are not 

designating any areas for this purpose. 

If such areas are identified and restored 

in the future, we may at that time revise 

critical habitat to include them. We also 

removed areas that were identified in 

the 1998 recovery plan as occupied but 

not included in either Appendix F or G 

as necessary to stabilize or reclassify the 

San Diego fairy shrimp, unless we had 

new information that was not evaluated 

at the time of the 1998 recovery plan 

that indicated that these areas were 

essential to the conservation of the 

species. This final revision to critical 

habitat includes some lands that were 

not identified in the recovery plan or 

the 2000 critical habitat designation, but 

which we have since concluded are 

within the geographical area occupied 

by the species at the time of listing and 

contain the physical and biological 

features essential to the conservation of 

the species. The designation of lands 

within the extant range of the San Diego 

fairy shrimp will adequately conserve 

the species. 

In addition, the following specific 

areas are removed from critical habitat: 

a. Subunit 3B, San Marcos, 

northwest—The recovery plan lists this 

area in appendix G, grouping this 

particular complex with other occupied 

vernal pools in the San Marcos area. 

This unit was designated in 2000 and 

included in the 2003 proposal to revise 

the critical habitat designation. 

However, this area is degraded, 

surrounded by development, and does 

not contribute to the watershed of any 

occupied vernal pool complexes within 

the San Marcos area. Furthermore, we 

do not have any evidence to indicate 

that the San Diego fairy shrimp has ever 

occupied this vernal pool complex, 

currently or historically. Based on this 

information, we have determined that 

these lands are not essential to the 

conservation of the San Diego fairy 

shrimp and have removed these lands 

from the final designation. 

b. Portions of subunit 3E, Ramona—

The recovery plan specifically identifies 

the need to secure existing vernal pools 

and their watersheds within the Ramona 

complexes that contain San Diego fairy 

shrimp. Since the publication of the 

2000 designation and the proposed 

revision to critical habitat in 2003, a 

survey was conducted to determine the 

distribution of vernal pools in the area 

around Ramona. The 2003 proposed 

rule included large expanses of habitat 

that did not contain any vernal pool 

complexes. The recent surveys in 

Ramona allowed us to more precisely 

map the distribution of vernal pool 

habitat. We used the recent survey data 

to identify and group all occupied 

vernal pools within subunit 3E. The 

Ramona area is gently sloped, and the 

distribution of soils did not correspond 

to the distribution of vernal pools, 

adding complexity to defining the 

watershed area that contributes to the 

identified vernal pool basins. Without 

more specific information on the extent 

of the watersheds in this gently sloping 

area, we delineated these units by 

including all lands connecting the 

identified vernal pools. Since we 

removed large areas of habitat within 

this subunit, we renamed the remaining 

areas as 3E.1, 3E.2, 3E.3, and 3E.4. 

c. Fieldstone—The recovery plan, 

which specifically identified and 

evaluated this area in appendix E 

(Status of the Vernal Pool Species 

Within the Management Areas), did not 

include this area within either appendix 

F or G as necessary to stabilize or 

reclassify the San Diego fairy shrimp. In 

addition, this subunit was considered 

but not proposed in the 2003 proposed 

revision to critical habitat. Finally, we 

do not have any evidence to indicate 

that the San Diego fairy shrimp has ever 

occupied this vernal pool complex, 

currently or historically. Based on the 

lack of occupancy data or any recent 

data contrary to the recovery plan, 

which specifically did not identify this 

area as necessary to stabilize or 

reclassify the San Diego fairy shrimp, 

we do not consider this complex 

essential to the conservation of this 

species. 

d. Maddox—The recovery plan, 

which specifically identified and 

evaluated this area in appendix E 

(Status of the Vernal Pool Species 

Within the Management Areas), did not 

include this area within either appendix 

F or G as necessary to stabilize or 

reclassify the San Diego fairy shrimp. 

The recovery plan did specifically 

identify this area in appendix G as 

necessary to reclassify two plant species 

(Eryngium aristulatum var. parishii and 

Pogogyne abramsii). Though this 

subunit was occupied at the time of 

listing and it was considered in the 2003 

proposed revision to critical habitat, the 

area was not proposed. This site has 

been proposed for development and we 

are working with landowners to identify 

appropriate offsite mitigation for project 

impacts. We have no new information 

on this site that was not considered at 

the time the recovery plan was written 

for the San Diego fairy shrimp, and we 

still conclude that these lands are not 

essential to the conservation of the 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70659 

species. Therefore, we are not including 

these lands in this final designation. 

e. Vernal pool complex K1, K2, K6, 

and K7—The recovery plan groups these 

complexes together in appendix G as the 

Otay River complexes and considers 

these complexes as necessary to 

reclassify both the San Diego fairy 

shrimp and Navarretia fossalis. The 

2000 final designation included the K1 

complex and K7 complex within the 

area designated as critical habitat 

(subunits 5B and 5A respectively); 

however, the 2000 final designation did 

not include complexes K2 or K6 as 

critical habitat for the San Diego fairy 

shrimp. In the 2003 proposed revision 

to critical habitat we proposed the K1 

complex as subunit 5A; however, at that 

time we determined that the K2, K6, and 

K7 complexes were not essential to the 

conservation of the species, and 

furthermore did not include these 

complexes in the 2003 proposed 

revision to critical habitat. At this time, 

we do not have any records to indicate 

that the San Diego fairy shrimp occupies 

the vernal pools in the K1 complex, 

currently or historically. Furthermore, 

we do not have any records for San 

Diego fairy shrimp in the Otay River 

Valley below Lower Otay Reservoir. 

Conversely, eastern Otay Mesa, directly 

south of the Otay River Valley, supports 

many vernal pools where occupancy by 

the San Diego fairy shrimp has been 

confirmed although these vernal pools 

are not identified in the recovery plan. 

Therefore, consistent with the intent of 

the recovery plan, we are designating 

those complexes on eastern Otay Mesa 

that were not identified in the recovery 

plan, but are known to support the San 

Diego fairy shrimp (e.g., complexes in 

subunit 5D). However, we do not 

consider the K1 complex or features 

contained therein to be essential to the 

conservation of the San Diego fairy 

shrimp and have removed the vernal 

pools in the K1 complex from this final 

designation. 

6. In the 2000 critical habitat 

designation (65 FR 63438, October 3, 

2000), we evaluated DOD lands covered 

by INRMPs to determine if an INRMP 

that addressed the San Diego fairy 

shrimp adequately provided 

management for the species and its 

habitat. We determined that the INRMP 

for MCAS Miramar provided adequate 

management for San Diego fairy shrimp 

and its habitat; therefore, we determined 

that vernal pools on MCAS Miramar did 

not meet the definition of critical habitat 

and did not include this area under 

section 3(5)(A) of the Act. In the 2000 

critical habitat rule (65 FR 63438, 

October 3, 2000), we also excluded 

lands on MCB Camp Pendleton under 

section 4(b)(2) of the Act. We did not 

exclude the portion of MCB Camp 

Pendleton leased to the State of 

California at San Onofre State Beach 

from the 2000 critical habitat rule. In the 

2003 proposed revision to critical 

habitat (68 FR 19888), we considered, 

but did not propose as critical habitat 

lands, on MCAS Miramar and the NRRF 

in Coronado under sections 3(5)(A) and 

4(b)(2) of the Act, based on the benefits 

provided by their completed INRMPs. 

We also considered, but did not 

propose, mission-essential training areas 

on MCB Camp Pendleton under section 

4(b)(2) of the Act for national security 

reasons. In this final revised critical 

habitat designation, all Department of 

Defense lands covered by an INRMP 

that we have determined will provide a 

benefit to the San Diego fairy shrimp are 

exempt from this critical habitat 

designation under section 4(a)(3)(B) of 

the Act; this includes lands at MCAS 

Miramar, NRRF, MCB Camp Pendleton, 

and at NOLF (see Exemptions and 

Exclusions section below for a detailed 

discussion of each exemption). 

7. The 2003 proposed rule to revise 

critical habitat for the San Diego fairy 

shrimp identified some lands that we 

‘‘considered but, did not propose’’

either because we did not believe these 

lands met the definition of critical 

habitat under section 3(5)(A) of the Act 

or because we specified the land for 

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

Act. Although these areas were not 

formally identified as proposed critical 

habitat, we specifically sought public 

review and comment on these lands and 

provided maps on the Carlsbad Fish and 

Wildlife Office’s public Web site to 

facilitate the public’s ability to comment 

substantively on these lands. Through 

such notice and request for public 

comment, we alerted the public that the 

lands could potentially be included in 

the final designation. Lands considered 

but not included or proposed for 

designation were also analyzed for 

potential economic impacts in the DEA 

published on April 8, 2004 (69 FR 

18516). 

8. In the 2003 proposed rule to revise 

critical habitat for the San Diego fairy 

shrimp, we ‘‘considered but, did not 

propose’’ lands covered by the City and 

County of San Diego’s subarea plans 

under the MSCP (collectively referred to 

as lands in the San Diego MSCP in the 

2003 proposed rule). In this revised 

final rule, we reaffirm our exclusion of 

lands covered by the County of San 

Diego’s subarea plan under section 

4(b)(2) of the Act (see Exemptions and 

Exclusions section below for a detailed 

discussion of these exclusions). 

However, in light of a ruling issued by 

the U.S. District Court for the Southern 

District of California on October 13, 

2006, (Southwest Center for Biological 

Diversity v. Bartel, CV 98–2234) 

(referred to here as the Bartel decision), 

we have reevaluated the City of San 

Diego’s subarea plan and have 

determined that exclusion of lands 

covered by the City’s subarea plan is not 

appropriate at this time. In a challenge 

brought by 14 environmental 

organizations, the district court held 

that the protections afforded the San 

Diego fairy shrimp and six other vernal 

pool species under the City of San 

Diego’s MSCP subarea plan are 

inadequate, and the Service’s decision 

to issue an incidental take permit for 

these species to the City based on the 

subarea plan was arbitrary and 

capricious. The court enjoined the 

incidental take permit with respect to 

ongoing and future land use activities 

that affect vernal pool habitat. The court 

concluded, in part, that the approach 

adopted in the City’s MSCP subarea 

plan for evaluating project impacts on 

vernal pool species through the ACOE’s 

site-specific permitting process under 

section 404 of the Clean Water Act had 

been effectively eliminated by the 

United States Supreme Court’s decision 

in Solid Waste Agency of Northern Cook 

County v. U.S. Army Corps of Engineers, 

531 U.S. 159 (2001 (SWANCC)) and that 

the remaining protections contained in 

the MSCP subarea plan do not 

adequately protect the San Diego fairy 

shrimp. As a result of the decision, we 

have designated as critical habitat the 

lands that we consider to be essential to 

the conservation of the species covered 

by the City of San Diego’s subarea plan 

that were considered, but not proposed, 

in the 2003 revised proposed rule (see 

Unit Descriptions section below for 

more details). Although we did not 

formally propose these lands in the 

2003 proposed rule to revise critical 

habitat, we notified the public that the 

lands had been considered for 

designation and invited the public to 

comment on our exclusion of the lands 

from proposed designation. We also 

provided maps of the lands on our Web 

site. In our Federal Register notice of 

April 3, 2007, that reopened the 

comment period on the proposed rule to 

revise critical habitat, we expressly 

asked for public comment on how the 

lands covered by the City of San Diego’s 

subarea plan should be reevaluated with 

regard to critical habitat designation in 

light of the Bartel decision (72 FR 

15857). Therefore, we believe that we 

provided the public with adequate 

notice of and an opportunity to 

mstockstill on PROD1PC66 with RULES2

70660 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

comment on the potential inclusion of 

these lands in the final designation. 

9. In the 2003 proposed rule, we 

included land within the North Ranch 

Policy Planning Area, which is owned 

by The Irvine Company. At the time we 

published the proposed rule, we 

recognized that this area was not 

covered under the incidental take 

permit issued for the Central-Coastal 

NCCP/HCP, and that additional 

planning was necessary to determine 

conservation and development areas. 

We have reanalyzed this area, which is 

known presently as The Irvine Ranch, 

and have determined that The Irvine 

Ranch is permanently conserved, 

managed with adequate current and 

future funding for the entire property, 

and managed for the benefit of the San 

Diego fairy shrimp. As a result, we have 

excluded The Irvine Ranch under 

section 4(b)(2) of the Act (see the 

Exemptions and Exclusions section 

below for a discussion of these 

exclusions). 

10. In 2003, we proposed inclusion of 

land in revised critical habitat of lands 

within the Orange County Southern 

Subregion HCP. At that time, the plan 

was still under development. This HCP, 

which has since been completed and 

approved by the Service, includes the 

San Diego fairy shrimp as a covered 

species. We have determined that the 

benefits of excluding essential San 

Diego fairy shrimp habitat lands covered 

by this plan outweigh the benefits of 

including these lands in a critical 

habitat designation. Therefore, we have 

excluded lands in Orange County 

covered by the Southern Subregion HCP 

(proposed subunits 1D and 1E) from this 

revised final designation under section 

4(b)(2) of the Act (see Exemptions and 

Exclusions section below for a 

discussion of this exclusion). 

11. We are also excluding Fairview 

Regional Park, City of Costa Mesa 

(proposed subunit 1B) under section 

4(b)(2) of the Act as we have determined 

that the City of Costa Mesa has 

completed and is implementing a 

management plan. We have determined 

that the benefits of excluding Fairview 

Regional Park outweigh the benefits of 

including this area in the critical habitat 

designation. Please see the Exemptions 

and Exclusions section below for a 

discussion of this exclusion. 

12. In 2003, we proposed to designate 

critical habitat on land near the United 

States/Mexico border. We are excluding 

a portion of these lands in subunit 5F 

from the revised final designation under 

section 4(b)(2) of the Act based on 

impacts to national security. We 

determined that the benefit of excluding 

lands at Arnie’s Point outweighs the 

benefit of including these lands in the 

critical habitat designation (see the 

Exemptions and Exclusions section 

below for a discussion of this 

exclusion). 

As a result of the above exemptions, 

removals, and exclusions, we are 

designating 3,082 ac (1,248 ha) as 

critical habitat in this revised final rule. 

The lands designated as critical habitat 

include areas in Orange and San Diego 

counties. To minimize confusion, we 

retained our subunit numbers from the 

2003 proposed revision. Due to the 

inclusion of lands that were considered, 

but not proposed, in the 2003 rule, some 

of the areas that we are designating as 

critical habitat do not have subunit 

numbers. In Unit 4, the inclusion of 

lands on Del Mar Mesa makes proposed 

subunits 4A and 4B contiguous, and this 

area is referred to as subunit 4A/B in 

this revised final rule. Other areas 

included in Unit 4 are not contiguous 

with any proposed subunits and these 

areas are named consecutively starting 

with subunit 4E and continuing through 

subunit 4M. In Unit 5, most of the areas 

that were considered, but not proposed 

in the 2003 proposed revision are 

contiguous with proposed subunits and 

the names of the existing proposed 

subunits are used to refer to these areas. 

Three areas in Unit 5 are not contiguous 

with proposed subunits and these areas 

are referred to as subunits 5G, 5H, and 

5I in this revised final rule. As 

previously discussed, we removed large 

areas of proposed critical habitat in 

subunit 3E; for greater clarity we 

renamed the remaining critical habitat 

in this area 3E.1; 3E.2; 3E.3; and 3E.4. 

TABLE 1.—GUIDE TO CHANGES BETWEEN THE OCTOBER 23, 2000 CRITICAL HABITAT DESIGNATION, THE APRIL 22, 2003 

PROPOSED DESIGNATION, AND THIS REVISED FINAL DESIGNATION

Unit Area identification used in this rule 

(naming convention in recovery plan)* 

Included in 

Appendix F 

or G 1998 

recovery 

plan 

San Diego 

fairy shrimp 

detected following the 

recovery 

plan 

2000 

Designation 

of critical 

habitat* 

2003 Proposed 

revision to the 

critical habitat 

designation* 

2007 Final revised 

critical habitat 

designation* 

Unit 1 Orange 

County.

The Irvine Ranch ................................... .................... X ...................... Subunit 1A ........... Excluded under 

4(b)(2). 

Fairview Park ......................................... X .................... Unit 1 ........... Subunit 1B ........... Excluded under 

4(b)(2). 

Newport Banning Ranch ........................ .................... X ...................... Subunit 1C ........... Subunit 1C. 

Chiquita Ridge ....................................... .................... X ...................... Subunit 1D ........... Excluded under 

4(b)(2). 

Radio Tower Road ................................. .................... X ...................... Subunit 1E ........... Excluded under 

4(b)(2). 

San Clemente State Park ...................... X 

Unit 2 North 

coastal San 

Diego 

County.

MCB Camp Pendleton (San Onofre 

State Lease Area).

X .................... Subunit 2A ... Subunit 2A ........... Exempt under 

4(a)(3). 

MCB Camp Pendleton (Cockleburr 

Mesa).

X .................... Excluded 

under 

4(b)(2).

Subunits 2B, 2C .. Exempt under 

4(a)(3). 

MCB Camp Pendleton (O Neil) ............. X .................... Excluded 

under 

4(b)(2).

Considered essential; not proposed.Exempt under 

4(a)(3). 

MCB Camp Pendleton (Las Pulgas, 

San Mateo, Stuart Mesa).

X .................... Excluded 

under 

4(b)(2).

Considered essential; not proposed.Exempt under 

4(a)(3). 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70661 

TABLE 1.—GUIDE TO CHANGES BETWEEN THE OCTOBER 23, 2000 CRITICAL HABITAT DESIGNATION, THE APRIL 22, 2003 

PROPOSED DESIGNATION, AND THIS REVISED FINAL DESIGNATION—Continued 

Unit Area identification used in this rule 

(naming convention in recovery plan)* 

Included in 

Appendix F 

or G 1998 

recovery 

plan 

San Diego 

fairy shrimp 

detected following the 

recovery 

plan 

2000 

Designation 

of critical 

habitat* 

2003 Proposed 

revision to the 

critical habitat 

designation* 

2007 Final revised 

critical habitat 

designation* 

MCB Camp Pendleton (Wire Mountain 

Housing).

X .................... Excluded 

under 

4(b)(2).

Subunits 2D, 2E, 

2F.

Exempt under 

4(a)(3). 

Palomar Airport ...................................... X .................... Subunit 2C ... Determined not to 

be essential.

Poinsettia Lane Commuter Station (JJ1, 

JJ3).

X .................... Subunit 2B ... Subunit 2G .......... Subunit 2G. 

Unit 3 Inland 

San Diego 

County.

San Marcos (L15–16) ............................ X X Subunit 3B ... Subunit 3A ........... Subunit 3A. 

San Marcos (L14) .................................. X .................... Subunit 3A ... Subunit 3B ........... Determined not to 

be essential. 

San Marcos (L1–6, 9–10) ...................... X X Subunit 3C ... Subunit 3C ........... Subunit 3C. 

San Marcos (L 11–13, 19) ..................... X X Subunit 3D ... Subunit 3D ........... Subunit 3D. 

San Marcos (L7) .................................... X .................... Determined 

not to be 

essential.

San Marcos (L8, 17–18, 20) .................. X 

Ramona, grasslands .............................. X X Subunit 3E ... Subunit 3E ........... Subunit 3E.1. 

Ramona, airport ..................................... X .................... Subunit 3E ... Subunit 3E ........... Subunit 3E.2. 

Ramona, downtown ............................... X .................... Subunit 3E ... Subunit 3E ........... Subunit 3E.3. 

Ramona, downtown ............................... X .................... Subunit 3F ... Subunit 3E ........... Subunit 3E.3. 

Ramona, high school ............................. X .................... Subunit 3E ... Subunit 3E ........... Subunit 3E.4. 

Unit 4 Central 

coastal San 

Diego 

County.

Del Mar Mesa (H18–23) ........................ X X Subunit 4A ... Subunit 4A ........... Subunit 4A/B. 

Del Mar Mesa (H1–10, 13–15, 

Pen ̃asquitos North/Del Mar Mesa).

X X Subunit 4A ... Subunit 4B ........... Subunit 4A/B. 

Murphy Canyon Navy Housing (G1–2 

Tierrasanta South, G3).

X .................... Subunit 4C ... Subunit 4C ........... Subunit 4C. 

Chollas Heights Navy Housing .............. X .................... Subunit 4D ... Subunit 4D ........... Subunit 4D. 

Carmel Mountain (H (undescribed)) ...... X .................... Considered 

essential; 

not proposed.

Considered essential; not proposed.Subunits 4E, 4F. 

Mira Mesa North (B) .............................. X .................... Considered 

essential; 

not proposed.

Tierra Alta (B5–6) .................................. X .................... Subunit 4B ... Considered essential; not proposed.Subunit 4G. 

Lopez Ridge (B7–8) ............................... X .................... Subunit 4B ... Considered essential; not proposed.Subunit 4H. 

Winterwood (C10–16) ............................ X .................... Considered 

essential; 

not proposed.

Considered essential; not proposed.Subunit 4I. 

Fieldstone (C17–18) .............................. .................... .................... ...................... Considered essential; not proposed.Determined not to 

be essential. 

Mira Mesa Central (C26) ....................... X 

Maddox (Maddox Park) ......................... .................... .................... ...................... Considered essential; not proposed.Determined not to 

be essential. 

Carroll Canyon (D5–8) ........................... .................... X Considered 

essential; 

not proposed.

Considered essential; not proposed.Subunit 4J. 

MCAS Miramar (A4; F1–27; I7; U1–13; 

U North; Z1–3, Z6; Z7; Z10; AA1–13; 

EE1–2; FF1–2; HH1–4 and RR1–2).

X .................... Not included 

under 

3(5)(A).

Considered essential; not proposed.Exempt under 

4(a)(3). 

Miramar Industrial .................................. X 

Nobel Drive (X5) .................................... X X 

mstockstill on PROD1PC66 with RULES2

70662 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

TABLE 1.—GUIDE TO CHANGES BETWEEN THE OCTOBER 23, 2000 CRITICAL HABITAT DESIGNATION, THE APRIL 22, 2003 

PROPOSED DESIGNATION, AND THIS REVISED FINAL DESIGNATION—Continued 

Unit Area identification used in this rule 

(naming convention in recovery plan)* 

Included in 

Appendix F 

or G 1998 

recovery 

plan 

San Diego 

fairy shrimp 

detected following the 

recovery 

plan 

2000 

Designation 

of critical 

habitat* 

2003 Proposed 

revision to the 

critical habitat 

designation* 

2007 Final revised 

critical habitat 

designation* 

New Century (BB2) ................................ X .................... Considered 

essential; 

not proposed.

SANDER and Magnatron (U15, SANDER).X .................... Excluded 

under 

4(b)(2).

Considered essential; not proposed.Subunit 4K. 

Cubic (U19, Cubic Pools) ...................... X .................... Excluded 

under 

4(b)(2).

Considered essential; not proposed.Subunit 4L. 

Montgomery Field (N1–4, 6) .................. X X Considered 

essential; 

not proposed.

Considered essential; not proposed.Subunit 4M. 

Unit 5 South 

San Diego 

County.

Otay Mesa (J26) .................................... X X Excluded 

under 

4(b)(2).

Considered essential; not proposed.Subunit 5A. 

Otay Mesa (J23–25) .............................. X X Considered 

essential; 

not proposed.

Considered essential; not proposed.Excluded under 

4(b)(2). 

Otay Mesa (J29–30) .............................. X .................... Considered 

essential; 

not proposed.

Considered essential; not proposed.Subunit 5B. 

Otay Mesa (J22) .................................... .................... X Subunit 5C ... Subunit 5C ........... Subunit 5C. 

Otay Mesa (J27–28) .............................. X X Considered 

essential; 

not proposed.

Otay Mesa .............................................. .................... X ...................... Considered essential; not proposed.Subunit 5D. 

Naval Base Coronado, Naval Radar Receiving Facility..................... X ...................... Considered essential; not proposed.Exempt under 

4(a)(3). 

Naval Base Coronado, Navy Outlying 

Landing Field (Tijuana Estuary).

X .................... Subunit 5D ... Subunit 5E ........... Exempt under 

4(a)(3). 

Otay Mesa (J11–21) .............................. X .................... Considered 

essential; 

not proposed.

Considered essential; not proposed.Subunit 5F. 

Otay Mesa (J2, 5, 7) .............................. X .................... Considered 

essential; 

not proposed.

Considered essential; not proposed.Subunit 5G. 

Otay River Valley (K1) ........................... X .................... Subunit 5B ... Considered essential; not proposed.Determined not to 

be essential. 

Otay River Valley (K2) ........................... X .................... Determined 

not to be 

essential.

Otay River Valley (K6) ........................... X 

Lower Otay Reservoir (K3–5) ................ .................... X ...................... Considered essential; not proposed.Subunit 5H. 

Otay Lakes Road (K7) ........................... X .................... Subunit 5A ... Determined not to 

be essential.

Marron Valley ......................................... .................... X ...................... Considered essential; not proposed.Subunit 5I. 

* The unit and subunit areas listed in this table have changed in size and configuration, largely due to the various methods that were used to 

delineate critical habitat. The table is provided to make general comparisons between analogous areas, but not meant to define which individual 

vernal pools were or were not included in each specific unit or subunit. 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70663 

Critical Habitat 

Critical habitat is defined in section 

3(5)(A) of the Act as: 

(i) The specific areas within the 

geographical area occupied by the 

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) Which may require special 

management considerations or 

protection; and 

(ii) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means the use of 

all methods and procedures that are 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

under the Act are no longer necessary. 

Such methods and procedures include, 

but are not limited to, all activities 

associated with scientific resources 

management such as research, census, 

law enforcement, habitat acquisition 

and maintenance, propagation, live 

trapping, and transplantation, and, in 

the extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against Federal agencies 

carrying out, funding, or authorizing the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) of the Act 

requires consultation on Federal actions 

that may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

the landowner. Where the landowner 

seeks or requests federal agency funding 

or authorization that may affect a listed 

species or critical habitat, the 

consultation requirements of Section 7 

would apply, but even in the event of 

a destruction or adverse modification 

finding, the landowner’s obligation is 

not to restore or recover the species, but 

to implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of critical habitat. 

For inclusion in a critical habitat 

designation, habitat within the 

geographical area occupied by the 

species at the time it was listed must 

contain features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

(areas on which are found the primary 

constituent elements, as defined at 50 

CFR 424.12(b)). 

Occupied habitat that contains the 

features essential to the conservation of 

the species meets the definition of 

critical habitat only if those features 

may require special management 

considerations or protection. 

Under the Act, we can designate areas 

outside of the geographical area 

occupied by the species at the time of 

listing only when we determine that the 

best available scientific data 

demonstrate that the designation of such 

areas is essential to the conservation 

needs of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and the associated Information 

Quality Guidelines issued by the 

Service, provide criteria, establish 

procedures, and provide guidance to 

ensure that our decisions are based on 

the best scientific data available. They 

require Service biologists, to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other 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 we 

may eventually determine, based on 

scientific data not now available to the 

Service, are necessary for the recovery 

of the species. For these reasons, a 

critical habitat designation does not 

signal that habitat outside the 

designated area is unimportant or may 

not be required for recovery of the 

species. 

Areas that support populations of San 

Diego fairy shrimp, but are outside the 

critical habitat designation, will 

continue to be subject to conservation 

actions we implement under section 

7(a)(1) of the Act. They are also subject 

to the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available scientific information at the 

time of the agency action. Federally 

funded or permitted 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 (HCPs), or 

other species conservation planning 

efforts if new information available to 

these planning efforts calls for a 

different outcome. 

Primary Constituent Elements 

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

of the Act and the regulations at 50 CFR 

424.12, in determining which areas 

within the geographical area occupied 

by the species at the time of listing to 

designate as critical habitat, we consider 

the physical and biological features that 

are essential to the conservation of the 

species to be the primary constituent 

elements (PCEs) laid out in the 

appropriate quantity and spatial 

arrangement for conservation of the 

species. These include, but are not 

limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historical, geographical, and ecological 

distributions of a species. 

We derive the specific primary 

constituent elements required for the 

San Diego fairy shrimp from the 

biological needs of the San Diego fairy 

shrimp as described in the proposed 

critical habitat rule published in the 

mstockstill on PROD1PC66 with RULES2

70664 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

Federal Register on April 22, 2003 (68 

FR 19888), and below. 

Space for Individual and Population 

Growth, and for Normal Behavior 

San Diego fairy shrimp require vernal 

pool habitat to grow and reproduce. 

Their life cycle requires periods of 

inundation as well as dry periods 

(Ripley et al. 2004, pp. 221–223). The 

San Diego fairy shrimp is most often 

found in vernal pools or vernal pool 

complexes that have the appropriate 

temperature, water chemistry, depth, 

and duration. More specifically, San 

Diego fairy shrimp are found in vernal 

and ephemeral wetlands that range in 

ponding duration from 7 days to 2 

months and that range in depth from 

less than 2 inches (in) (5 centimeters 

(cm)) to over 12 in (30 cm) (Simovich 

and Fugate 1992, p. 111; Hathaway and 

Simovich 1996, p. 670). For the 

appropriate conditions to occur, the 

following factors are necessary: (1) 

Associated hydrology that provides 

water to fill the pools; and (2) any soil 

type with a claypan or hardpan 

component that forms an impermeable 

layer and provides space for individual 

and population growth and normal 

behavior. Vernal pool hydrology (i.e., 

seasonal filling and drying of vernal 

pools) is an essential feature that 

governs the life cycle of the San Diego 

fairy shrimp; proper timing, duration, 

and depth of these hydrological 

processes is necessary for cyst hatching 

and successful reproduction of San 

Diego fairy shrimp. 

Vernal pools generally occur in 

complexes. Vernal pool complexes are 

defined by two or more vernal pools in 

the context of a larger vernal pool 

watershed. Adjacent upland habitat also 

contributes to the overall functions 

important to the vernal pool ecosystem. 

Protection of the upland habitat 

between vernal pools within the vernal 

pool watershed is important for 

maintaining the hydroperiods of 

adequate length to support the entire 

reproductive cycle for San Diego fairy 

shrimp and to buffer the vernal pools 

from edge effects. During periods of 

high rainfall, adult fairy shrimp and 

cysts (dormant eggs) may be transported 

between vernal pools in a complex as 

individual pools become connected by 

over surface flows of water. To maintain 

high-quality vernal pool ecosystems, all 

components including the vernal pool 

basin, the vernal pool watershed, and 

the surrounding upland habitat must be 

available and functional (Hanes and 

Stromberg 1998, p. 38). Many of the 

remaining pools that support the San 

Diego fairy shrimp are no longer in a 

pristine or undisturbed state. Yet these 

pools, and the associated upland 

habitat, continue to function and 

provide space for individual and 

population growth and for normal 

behavior. 

Food, Water, Air, Light, Minerals, or 

Other Nutritional or Physiological 

Requirements 

Temperature, water chemistry, and 

length of time vernal pools are 

inundated with water are factors that 

play an important role in the 

distribution and temporal appearance of 

the San Diego fairy shrimp (Gonzalez et 

al. 1996, pp. 315–316; Hathway and 

Simovich 1996, p. 669). San Diego fairy 

shrimp hatch and reproduce in water at 

temperatures that range from 41 to 68 

degrees Fahrenheit (F) (5 to 20 degrees 

Celsius (C)), and do not hatch at 

temperature greater than 77 degrees F 

(25 degrees C) (Hathway and Simovich 

1996, pp. 674–675). This limitation 

keeps San Diego fairy shrimp from 

hatching during the summer months if 

the vernal pools were to fill with water. 

Also, San Diego fairy shrimp do not 

survive well in temperatures below 41 

degrees F (5 degrees C) (Hathaway and 

Simovich 1996, pp. 674–675). San Diego 

fairy shrimp typically inhabit dilute, 

freshwater pools with low levels of total 

dissolved solids (low ion levels (Na+

concentrations below 60 millimoles per 

liter (mmol/l)), low alkalinity levels 

(lower than 80 to 1,000 milligrams per 

liter (mg/l)), and that are characterized 

by a range of pH levels from neutral to 

alkaline (8.0 to 10.3) (Gonzalez et al. 

1996, pp. 319–322). The San Diego fairy 

shrimp is not known to successfully 

mature and reproduce outside these 

limits in laboratory conditions; 

therefore, proper temperature, water 

chemistry, and length of time vernal 

pools are inundated may be necessary 

for survival and successful 

reproduction. 

San Diego fairy shrimp have been 

shown to tightly regulate their internal 

body chemistry in pool environments 

that have low salinity and low alkalinity 

(Gonzalez et al. 1996, pp. 319–322). In 

a laboratory experiment, San Diego fairy 

shrimp were unable to maintain their 

body chemistry balance in conditions 

with sodium ion (Na+) concentrations 

greater than 60 mmol/l but less than half 

survived when concentrations exceeded 

100 mmol/l (Gonzalez et al. 1996, pp. 

319–322). This limited tolerance for 

saline conditions is one of the factors 

that restrict the San Diego fairy shrimp 

to its current range. San Diego fairy 

shrimp are filter feeders and their diet 

consists mostly of algae, bacteria, and 

other microorganisms (Parsick 2002, pp. 

37–41, 65–70). In a natural vernal pool 

setting these food items are readily 

available. 

Sites for Breeding, Reproduction and 

Rearing of Offspring 

Adult San Diego fairy shrimp are 

usually observed from January to March. 

In years with early or late rainfall, the 

hatching period may be extended. When 

vernal pools fill with water the cysts 

hatch and juvenile fairy shrimp quickly 

develop into adults. San Diego fairy 

shrimp can reach sexually maturity and 

begin mating in 7 to 10 days from the 

time the vernal pool fills with water. 

When the females’ eggs are fertilized 

they begin to develop; however, the 

development of the fertilized eggs stops 

at an early stage and the eggs become 

dormant. The dormant eggs are referred 

to as ‘‘cysts’’ or ‘‘resting eggs’’ and each 

egg is smaller than the tip of a pencil 

and contains a dormant fairy shrimp 

embryo encased in a hard outer shell. 

Cysts drop to the bottom of the vernal 

pool and then become part of the cyst 

bank in the soil of the vernal pool. In 

the absence of more rainfall the vernal 

pool dries and any remaining adult San 

Diego fairy shrimp die as the water 

evaporates. The cysts, however, are 

capable of withstanding temperature 

extremes and prolonged drying (i.e., 

drought conditions lasting several 

years). During subsequent filling events 

these cysts will emerge from dormancy 

and hatch. Researchers have found that 

only a small portion of the cysts in the 

cyst bank hatch each time the vernal 

pool fills. Simovich and Hathaway 

(1997, pp. 40–43) referred to this as 

‘‘bet-hedging’’ and concluded that it 

allows the San Diego fairy shrimp to 

survive in an unpredictable 

environment. Many times when a vernal 

pool fills, the pool will evaporate before 

San Diego fairy shrimp are able to 

reproduce (Ripley et al. 2004, pp. 221–

223). The ‘‘bet-hedging’’ insures that 

some cysts will hatch when the vernal 

pools hold water for a period long 

enough for the San Diego fairy shrimp 

to complete its entire life cycle. Thus, 

reproductive output of small aquatic 

crustaceans living in variable 

environments is spread over several 

seasons. 

Primary Constituent Elements for the 

San Diego Fairy Shrimp 

Within the geographical area 

occupied by the San Diego fairy shrimp, 

we must identify the PCEs that may 

require special management 

considerations or protection. All areas 

designated as critical habitat for San 

Diego fairy shrimp are occupied, within 

the species’ geographic range, and 

contain sufficient PCEs to support at 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70665 

least one life history function. In the 

case of this designation, all of the units 

contain all of the PCEs. The data 

provided in these PCEs have been 

generalized from existing scientific data. 

There may be cases where San Diego 

fairy shrimp persist in conditions 

outside the ranges expressed in these 

PCEs. It is also important to note that 

the variable amounts and timing of 

precipitation in southern California do 

not result in favorable conditions for 

San Diego fairy shrimp in every year. 

Based on our current knowledge of 

the life history, biology, and ecology of 

the species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined that the San Diego fairy 

shrimp’s PCEs are: 

(1) Vernal pools with shallow to 

moderate depths (2 in (5 cm) to 12 in 

(30 cm)) that hold water for sufficient 

lengths of time (7 to 60 days) necessary 

for incubation, maturation, and 

reproduction of the San Diego fairy 

shrimp, in all but the driest years; 

(2) Topographic features characterized 

by mounds and swales and depressions 

within a matrix of surrounding uplands 

that result in complexes of 

continuously, or intermittently, flowing 

surface water in the swales connecting 

the pools described in PCE 1, providing 

for dispersal and promoting 

hydroperiods of adequate length in the 

pools (i.e., the vernal pool watershed); 

and 

(3) Flat to 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 (including Carlsbad, 

Chesterton, Diablo, Huerhuero, Linne, 

Olivenhain, Placentia, Redding, and 

Stockpen soils). 

We have designed this revised final 

designation for the conservation of PCEs 

necessary to support the life history 

functions and the areas containing those 

PCEs. The matrix of vernal pools/ 

ephemeral wetlands, upland habitats, 

and underlying soil substrates in 

combination create ecologically 

functional units. These features and the 

lands that they represent are essential to 

the conservation of the San Diego fairy 

shrimp. All lands designated as critical 

habitat contain all of the features 

essential to the conservation of the San 

Diego fairy shrimp (i.e., PCEs). As stated 

in the Summary of Changes section of 

this rule, we believe that a designation 

limited to the extant range is adequate 

to conserve the San Diego fairy shrimp. 

We designate units based on sufficient 

PCEs being present to support at least 

one of the species’ life history functions. 

In the case of this designation, all of the 

units contain all of the PCEs. 

Special Management Considerations or 

Protection 

When designating critical habitat 

under the first prong of the statutory 

definition of critical habitat, as here, we 

assess whether areas within the 

geographical area occupied by the 

species contain features that are 

essential to the conservation of the 

species and that may require special 

management considerations or 

protection. In this section, we describe 

special management considerations and 

protection required to conserve the 

PCEs for the San Diego fairy shrimp. 

The most pressing threat to critical 

habitat for the San Diego fairy shrimp is 

the loss of habitat. Vernal pools 

supporting the San Diego fairy shrimp 

are found on level or gently sloping land 

within 40 mi (64 km) of the coast. 

Virtually all of this land is sought after 

for commercial and residential 

development. Soils supporting vernal 

pools have been almost completely lost 

to development (Bauder and McMillan 

1998, p. 56). Development of an area can 

directly impact all the PCEs for this 

species if the vernal pool basins are lost 

during the development process. The 

vernal pool basin (PCE 1) can also be 

indirectly impacted by development if 

the vernal pool watershed (PCE 2) is 

impacted during the development 

process. Development can also 

indirectly impact PCE 1 and PCE 2 if the 

vernal pool soils or topography is 

altered (PCE 3). Specifically, the 

following subunits include land that is 

not protected from development 

through ownership by a conservation 

organization or by a conservation 

easement or other similar legal 

mechanisms: 1C; 3A; 3C; 3E.1; 3E.2; 

3E.3; 3E.4; 4A/B; 4H; 4J–4M; 5A–5D; 5F; 

and 5G. These lands require special 

management considerations or 

protections from negative impacts 

associated with development. 

Once a vernal pool complex has been 

protected from loss from habitat 

conversion or development, it is still 

necessary to ensure that the habitat is 

not degraded as a result of altered 

hydrology, contamination, nonnative 

species invasions, or other incompatible 

land uses (e.g., off-road vehicle use, 

mountain bike use, illegal dumping). 

Special management considerations are 

necessary to ensure that vernal pool 

habitat protected for the San Diego fairy 

shrimp retains the physical and 

biological features essential to the 

conservation of the San Diego fairy 

shrimp. As discussed below, all of the 

subunits designated as critical habitat 

require some form of special 

management consideration or protection 

of their constituent PCEs. 

Special management may be 

necessary to prevent and reduce 

incursion of nonnative invasive plant 

species that alter PCE 1. Nonnative 

plant species can impact the duration of 

ponding in a vernal pool basin. 

Nonnative plant species can also impact 

the vernal pool watershed (PCE 2) by 

reducing the inundation period through 

an over-abundance of vegetation within 

the watershed (Marty 2005, p. 1630). 

Special management actions can be 

taken to reduce the negative effects of 

such invasions. Removal of weed 

species by hand, increased planting of 

vernal pool species, mowing, restoration 

of native species in the upland areas, 

and prescribed burns may be potential 

tools to manage this threat. Nonnative 

species threaten the following subunits: 

1C; 2G; 3A; 3C; 3D; 3E.1; 3E.2; 3E.3; 

3E.4; 4I–4M; 5A–5D; 5F; 5G; and 5I. 

Special management considerations 

or protections may be necessary to 

protect and restore vernal pool 

hydrology (PCE 1 and PCE 2). Alteration 

of natural hydrology directly threatens 

San Diego fairy shrimp, and the 

invasion of nonnative species may be 

facilitated by alterations in the natural 

vernal pool hydrology. Runoff from 

adjacent developments should be 

monitored to ensure that a pool’s 

hydrology has not been altered, either 

through changes in ponding duration or 

changes to water temperature or 

chemistry. Discing, grading and digging 

in ways that impact the topography and 

soils near vernal pool complexes (PCE 

3) can also indirectly impact the 

hydrology (PCE 1 and PCE 2). Altered 

hydrology threatens the following 

subunits: 1C; 2G; 3A; 3C; 3D; 3E.1; 3E.2; 

3E.3; 3E.4; 4A/B; 4I–4M; 5A–5D; 5F; 5G 

and 5I. 

Special management considerations 

or protection may be necessary to 

reduce degradation of vernal pools. 

Management actions such as fencing, 

trail building, and sign posting can help 

to reduce human activities that threaten 

San Diego fairy shrimp habitat. 

Vehicular traffic can impact to adult and 

juvenile San Diego fairy shrimp, and 

may crush cysts during the wet season 

(Hathaway et al. 1996, p. 451). 

Motorized and non-motorized off-road 

vehicle use, illegal trash dumping, and 

trampling can: (1) Affect the ponding 

duration in the vernal pool by 

increasing or decreasing the amount of 

water in the basin (PCE 1) or move soils 

and alter the topography, and (2) divert 

water or compact the soil such that the 

water does not saturate the soils (PCE 2). 

Degradation associated with human 

mstockstill on PROD1PC66 with RULES2

70666 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

activities threatens the following 

subunits: 1C; 2G; 3A; 3C; 3D; 3E.1; 3E.2; 

3E.3; 3E.4; 4A/B; 4C–4F; 4I–4M; 5A–5I. 

The control of invasive nonnative 

species, the maintenance and 

enhancement of natural vernal pool 

hydrology, and the control of 

incompatible and often illegal activities, 

such as off-road vehicle use and trash 

dumping, will help to ensure the 

preservation of vernal pool complexes. 

Ongoing monitoring of the threats to 

preserved vernal pool complexes and 

the San Diego fairy shrimp in each 

vernal pool complex is necessary for the 

long-term conservation of the San Diego 

fairy shrimp. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific and 

commercial data available in 

determining the specific areas within 

the geographical area occupied by the 

species at listing that contain the 

features essential to the conservation of 

species which may require special 

management considerations or 

protection, as well as when determining 

if any specific areas outside the 

geographical area occupied by the 

species at listing are essential to the 

conservation of the species. We only 

designate areas outside the geographical 

area occupied at the time of listing by 

a species when a designation limited to 

its present range would be inadequate to 

ensure the conservation of the species 

(50 CFR 424.12(e)). 

We based this final revision to the 

critical habitat designation on the 1998 

recovery plan, which calls for the 

preservation and enhancement of 

existing vernal pools that are within the 

extant range of the San Diego fairy 

shrimp (Service 1998a). We used all 

scientific and commercial data available 

to identify existing vernal pool 

complexes that contain San Diego fairy 

shrimp. Occupancy status was 

determined using occurrence data from 

the CNDDB (2001, 2004, 2007), the City 

of San Diego’s Vernal Pool Inventory 

(2003), the Ramona Vernal Pool 

Conservation Study (TAIC and EDAW 

2005), Appendix E of the Recovery Plan 

for Vernal Pools of Southern California 

(Service 1998a, pp. E1–E16), and 

10(A)(1)(a) reports submitted to the 

Service for San Diego fairy shrimp. 

Since the publication of the recovery 

plan we have become aware of several 

more vernal pool complexes that are 

occupied by the San Diego fairy shrimp. 

In addition to vernal pool complexes 

identified in appendices F and G, we 

have included the following areas in 

this designation that were not identified 

as essential to the San Diego fairy 

shrimp in the recovery plan or the 2000 

designation of critical habitat: Subunits 

1A; 1B; 1C; 1D; 5D; 5H; and 5I (see 

Table 1). 

We consider all of the vernal pool 

complexes designated as critical habitat 

to have been occupied at the time of 

listing and to be currently occupied by 

the San Diego fairy shrimp. Genetic 

studies indicate that there is low rate of 

dispersal for this species, meaning that 

it is infrequent for San Diego fairy 

shrimp to move from one area to 

another. The San Diego fairy shrimp 

was first described in 1993, and there 

are only a limited number of people 

who have been trained to survey for this 

species (Fugate 1993, pp. 296–304). As 

a result, ‘‘new’’ populations of this 

species have been identified since 

listing in 1997, not because the San 

Diego fairy shrimp recently appeared 

there, but rather San Diego fairy shrimp 

were discovered at new locations the 

first time focused surveys were 

conducted at those locations. For these 

reasons we believe that all areas 

designated as critical habitat were 

occupied by San Diego fairy shrimp at 

the time of listing. As stated above, we 

believe that a designation encompassing 

habitat within the extant range of the 

San Diego fairy shrimp is adequate to 

conserve this species. After we 

delineated all of the vernal pool 

complexes occupied by San Diego fairy 

shrimp, we examined the complexes to 

delineate the watersheds associated 

with the complexes and determined the 

extent of the PCEs in each complex and 

watershed. Areas determined to contain 

the PCEs were based on the boundaries 

of vernal pool complexes delineated in 

Beauchamp and Cass 1979 (pp. 12–13) 

and Bauder 1986 (Appendix 4). 

However, these boundaries were drawn 

to group and classify vernal pool 

complexes and did not always capture 

the entire watershed area needed to 

support the vernal pool complex. To 

better capture the watershed areas in the 

critical habitat we included areas of 

similar topography and soil type 

(Service GIS database; soils described by 

Bowman 1973, pp. 7–17). 

Finally, we removed vernal pool 

complexes that lack any evidence to 

indicate historical or current occupancy 

by San Diego fairy shrimp or that are 

unlikely to contribute to the 

conservation of the species due to 

location or other limitations. We 

removed subunit 3B in San Marco; the 

Fieldstone vernal pools; and the K1, K2 

and K6 vernal pool complexes (see 

Summary of Changes From Previously 

Designated Critical Habitat and 2003 

Proposed Rule for additional details on 

these areas). 

When determining critical habitat 

boundaries within this final rule, we 

made every effort to avoid including 

developed areas such as lands 

containing buildings, paved areas, and 

other structures that lack PCEs for San 

Diego fairy shrimp. The scale of the 

maps we prepared under the parameters 

for publication within the Code of 

Federal Regulations may not reflect the 

exclusion of such developed areas. Any 

such structures and the land under them 

inadvertently left inside critical habitat 

boundaries shown on the maps of this 

final rule are excluded by text in the 

final rule and are not designated as 

critical habitat. Therefore, Federal 

actions involving these areas would not 

trigger section 7 consultation with 

respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the primary constituent elements in the 

adjacent critical habitat. 

Revisions to the Critical Habitat 

Designation 

We are designating 3,082 ac (1,248 ha) 

of land as critical habitat for San Diego 

fairy shrimp in 5 units with a total of 

29 subunits. Table 2 outlines the areas 

included (definitional areas) and the 

areas excluded and exempt from this 

revised final critical habitat. Subunits 

designated as critical habitat are 

discussed in detail below in the Unit 

Description section; exempt or excluded 

subunits are further discussed in the 

Exemptions and Exclusions section 

below. The five units in this final 

revision to critical habitat are defined by 

the Management Areas described in the 

recovery plan (Service 1998a, pp. 35–

44). The critical habitat areas described 

below constitute our best assessment of 

the areas that are within the 

geographical area occupied by the San 

Diego fairy shrimp at the time of listing 

and that contain the primary constituent 

elements essential to the conservation of 

the San Diego fairy shrimp that may 

require special management 

considerations or protection. 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70667 

TABLE 2.—SIZE OF AREAS CONTAINING FEATURES ESSENTIAL TO THE CONSERVATION OF THE SAN DIEGO FAIRY SHRIMP

(DEFINITIONAL AREA), THE AREA EXCLUDED OR EXEMPT FROM THE FINAL CRITICAL HABITAT DESIGNATION (EXCLUDED AND EXEMPT AREA), AND THE TOTAL AREA DESIGNATED FOR EACH SUBUNIT OF CRITICAL HABITAT (TOTAL

DESIGNATED). NUMBERS HAVE BEEN ROUNDED TO THE NEAREST WHOLE DIGIT AND MAY OVERESTIMATE AREA DUE

TO ROUNDING

Unit/subunit Geographic area Definitional area Excluded and exempt area Total designated 

Unit 1 ................... Orange County.

1A ........................ North Ranch Policy Plan Area ......... 4 ac (2 ha) ........................ 4 ac (2 ha) ........................ 0 ac (0 ha). 

1B ........................ Costa Mesa Fairview Park ............... 43 ac (17 ha) .................... 43 ac (17 ha) .................... 0 ac (0 ha). 

1C ........................ Newport-Banning Ranch .................. 15 ac (6 ha) ...................... 0 ac (0 ha) ........................ 15 ac (6 ha). 

1D ........................ Chiquita Ridge .................................. 56 ac (23 ha) .................... 56 ac (23 ha) .................... 0 ac (0 ha). 

1E ........................ Radio Tower Road ........................... 84 ac (34 ha) .................... 84 ac (34 ha) .................... 0 ac (0 ha). 

Subtotal for 

Unit 1.

........................................................... 202 ac (82 ha) .................. 187 ac (76 ha) .................. 15 ac (6 ha). 

Unit 2 ................... North Coastal Mesa, San Diego 

County.

2A ........................ MCB Camp Pendleton, San Onofre 

State Lease Area.

17 ac (9 ha) ...................... 17 ac (9 ha) ...................... 0 ac (0 ha). 

2B ........................ MCB Camp Pendleton, Cockleburr 

Mesa.

43 ac (17 ha) .................... 43 ac (17 ha) .................... 0 ac (0 ha). 

2C ........................ MCB Camp Pendleton, Cockleburr 

Mesa.

132 ac (53 ha) .................. 132 ac (53 ha) .................. 0 ac (0 ha). 

2D ........................ MCB Camp Pendleton, Wire Mountain Housing.155 ac (63 ha) .................. 155 ac (63 ha) .................. 0 ac (0 ha). 

2E ........................ MCB Camp Pendleton, Wire Mountain Housing.18 ac (7 ha) ...................... 18 ac (7 ha) ...................... 0 ac (0 ha). 

2F ........................ MCB Camp Pendleton, Wire Mountain Housing.203 ac (82 ha) .................. 203 ac (82 ha) .................. 0 ac (0 ha). 

2G ....................... Poinsettia Lane Commuter Station .. 6 ac (3 ha) ........................ 0 ac (0 ha) ........................ 6 ac (3 ha). 

MCB Camp Pendleton, training 

areas.

7182 ac (2906 ha) ............ 7182 ac (2906 ha) ............ 0 ac (0 ha). 

Subtotal for 

Unit 2.

........................................................... 7756 ac (3140 ha) ............ 7750 ac (3137 ha) ............ 6 ac (3 ha). 

Unit 3 ................... Inland Valley, San Diego County.

3A ........................ San Marcos, northeast unit .............. 17 ac (7 ha) ...................... 0 ac (0 ha) ........................ 17 ac (7 ha). 

3C ........................ San Marcos, southwest unit ............. 63 ac (25 ha) .................... 0 ac (0 ha) ........................ 63 ac (25 ha). 

3D ........................ San Marcos, southeast unit .............. 5 ac (2 ha) ........................ 0 ac (0 ha) ........................ 5 ac (2 ha). 

3E.1 ..................... Ramona, grasslands ......................... 382 ac (154 ha) ................ 0 ac (0 ha) ........................ 382 ac (154 ha). 

3E.2 ..................... Ramona, airport ................................ 191 ac (77 ha) .................. 0 ac (0 ha) ........................ 191 ac (77 ha). 

3E.3 ..................... Ramona, downtown .......................... 27 ac (11 ha) .................... 0 ac (0 ha) ........................ 27 ac (11 ha). 

3E.4 ..................... Ramona, high school ........................ 40 ac (16 ha) .................... 0 ac (0 ha) ........................ 40 ac (16 ha). 

Subtotal for 

Unit 3.

........................................................... 725 ac (292 ha)* .............. 0 ac (0 ha) ........................ 725 ac (292 ha).* 

Unit 4 ................... Central Coastal Mesa, San Diego 

County.

4A/B .................... Del Mar Mesa ................................... 252 ac (102 ha) ................ 0 ac (0 ha) ........................ 252 ac (102 ha). 

4C ........................ Murphy Canyon Navy Housing ........ 41 ac (17 ha) .................... 0 ac (0 ha) ........................ 41 ac (17 ha). 

4D ........................ Chollas Heights Navy Housing ......... 16 ac (7 ha) ...................... 0 ac (0 ha) ........................ 16 ac (7 ha). 

4E ........................ Carmel Mountain, west ..................... 32 ac (13 ha) .................... 0 ac (0 ha) ........................ 32 ac (13 ha). 

4F ........................ Carmel Mountain, east ..................... 4 ac (2 ha) ........................ 0 ac (0 ha) ........................ 4 ac (2 ha). 

4G ....................... Tierra Alta ......................................... 5 ac (2 ha) ........................ 0 ac (0 ha) ........................ 5 ac (2 ha). 

4H ........................ Lopez Ridge ..................................... 11 ac (4 ha) ...................... 0 ac (0 ha) ........................ 11 ac (4 ha). 

4I ......................... Winterwood ....................................... 17 ac (7 ha) ...................... 0 ac (0 ha) ........................ 17 ac (7 ha). 

4J ........................ Carroll Canyon .................................. 14 ac (6 ha) ...................... 0 ac (0 ha) ........................ 14 ac (6 ha). 

4K ........................ Sander and Magnatron ..................... 56 ac (23 ha) .................... 0 ac (0 ha) ........................ 56 ac (23 ha). 

4L ........................ Cubic ................................................. 7 ac (3 ha) ........................ 0 ac (0 ha) ........................ 7 ac (3 ha). 

4M ....................... Montgomery Field ............................. 96 ac (39 ha) .................... 0 ac (0 ha) ........................ 96 ac (39 ha). 

MCAS Miramar ................................. 1703 ac (689 ha) .............. 1703 ac (689 ha) .............. 0 ac (0 ha). 

Subtotal for 

Unit 4.

........................................................... 2254 ac (914 ha) .............. 1703 ac (689 ha) .............. 551 ac (225 ha). 

Unit 5 ................... Southern Coastal Mesa, San Diego 

County.

5A ........................ Otay Mesa, northeast unit ................ 234 ac (95 ha) .................. 196 ac (79 ha) .................. 38 ac (16 ha). 

5B ........................ Otay Mesa, north unit ....................... 327 ac (132 ha) ................ 23 ac (9 ha) ...................... 304 ac (123 ha). 

5C ........................ Otay Mesa, east unit ........................ 75 ac (30 ha) .................... 0 ac (0 ha) ........................ 75 ac (30 ha). 

5D ........................ Otay Mesa, southeast unit ............... 391 ac (158 ha) ................ 0 ac (0 ha) ........................ 391 ac (158 ha). 

mstockstill on PROD1PC66 with RULES2

70668 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

TABLE 2.—SIZE OF AREAS CONTAINING FEATURES ESSENTIAL TO THE CONSERVATION OF THE SAN DIEGO FAIRY SHRIMP

(DEFINITIONAL AREA), THE AREA EXCLUDED OR EXEMPT FROM THE FINAL CRITICAL HABITAT DESIGNATION (EXCLUDED AND EXEMPT AREA), AND THE TOTAL AREA DESIGNATED FOR EACH SUBUNIT OF CRITICAL HABITAT (TOTAL

DESIGNATED). NUMBERS HAVE BEEN ROUNDED TO THE NEAREST WHOLE DIGIT AND MAY OVERESTIMATE AREA DUE

TO ROUNDING—Continued 

Unit/subunit Geographic area Definitional area Excluded and exempt area Total designated 

5E ........................ Naval Outlying Landing Field 

(NOLF).

8 ac (3 ha) ........................ 8 ac (3 ha) ........................ 0 ac (0 ha). 

5F ........................ Otay Mesa, southwest unit ............... 650 ac (263 ha) ................ 29 ac (12 ha) .................... 621 ac (251 ha). 

5G ....................... Otay Mesa, northwest unit ............... 132 ac (53 ha) .................. 0 ac (0 ha) ........................ 132 ac (53 ha). 

5H ........................ Lower Otay Reservoir ....................... 205 ac (83 ha) .................. 5 ac (2 ha) ........................ 200 ac (81 ha). 

5I ......................... Marron Valley ................................... 24 ac (10 ha) .................... 0 ac (0 ha) ........................ 24 ac (10 ha). 

Naval Radar Receiving Facility 

(NRRF).

161 ac (65 ha) .................. 161 ac (61 ha) .................. 0 ac (0 ha). 

Subtotal for 

Unit 5.

........................................................... 2,207 ac (892 ha)* ........... 422 ac (170 ha)* .............. 1,785 ac (722 ha).* 

Total ...... ........................................................... 13,144 ac (5,320 ha)* ...... 10,062 ac (4,072 ha)* ...... 3,082 ac (1,248 ha).* 

*Figures in table may not sum due to rounding. 

The approximate area encompassed 

within each critical habitat subunit by 

landownership is shown in Table 3. 

TABLE 3.—CRITICAL HABITAT UNITS AND SUBUNITS FOR THE SAN DIEGO FAIRY SHRIMP. NUMBERS HAVE BEEN

ROUNDED TO THE NEAREST WHOLE DIGIT AND MAY OVERESTIMATE AREA DUE TO ROUNDING

Unit/subunit Geographic area Owner Total 

designated 

Unit 1 ........................... Orange County.

1C ................................ Newport-Banning Ranch ................................. Private ............................................................. 15 ac (6 ha). 

Unit 2 ........................... North Coastal Mesa, San Diego County.

2G ................................ Poinsettia Lane Commuter Station ................. Private ............................................................. 2 ac (1 ha). 

North County Transit District (NCTD) ............. 4 ac (2 ha). 

Unit 3 ........................... Inland Valley, San Diego County.

3A ................................ San Marcos, northeast unit ............................. Private ............................................................. 16 ac (6 ha). 

Other Special Districts .................................... 1 ac (<1 ha). 

3C ................................ San Marcos, southwest unit ........................... City of San Marcos ......................................... 11 ac (4 ha). 

Water District .................................................. 4 ac (2 ha). 

Private ............................................................. 48 ac (19 ha). 

3D ................................ San Marcos, southeast unit ............................ Private ............................................................. 5 ac (2 ha). 

3E.1 ............................. Ramona, grasslands ....................................... Water District .................................................. 1 ac (<1 ha). 

Private ............................................................. 381 ac (153 ha). 

3E.2 ............................. Ramona, airport .............................................. County of San Diego ...................................... 67 ac (27 ha). 

Private ............................................................. 124 ac (50 ha). 

3E.3 ............................. Ramona, downtown ........................................ Private ............................................................. 26 ac (10 ha). 

County of San Diego ...................................... 1 ac (<1 ha). 

3E.4 ............................. Ramona, high school ...................................... Ramona Unified School District ...................... 35 ac (14 ha). 

Private ............................................................. 5 ac (2 ha). 

Unit 4 ........................... Central Coastal Mesa, San Diego County.

4A/B ............................. Del Mar Mesa ................................................. U.S. Fish and Wildlife Service ........................ 41 ac (16 ha). 

State of California ........................................... 56 ac (23 ha). 

County of San Diego ...................................... 5 ac (2 ha). 

City of San Diego ............................................ 51 ac (21 ha). 

Private ............................................................. 99 ac (40 ha). 

4C ................................ Murphy Canyon Navy Housing ....................... Department of Defense ................................... 40 ac (16 ha). 

City of San Diego ............................................ 1 ac (<1 ha). 

4D ................................ Chollas Heights Navy Housing ....................... Department of Defense ................................... 16 ac (7 ha). 

4E ................................ Carmel Mountain, west ................................... City of San Diego ............................................ 31 ac (12 ha). 

Private ............................................................. 1 ac (<1 ha). 

4F ................................ Carmel Mountain, east .................................... City of San Diego ............................................ 4 ac (2 ha). 

4G ................................ Tierra Alta ....................................................... City of San Diego ............................................ 2 ac (1 ha). 

Private ............................................................. 3 ac (1 ha). 

4H ................................ Lopez Ridge .................................................... City of San Diego ............................................ 7 ac (3 ha). 

Private ............................................................. 4 ac (2 ha). 

4I .................................. Winterwood ..................................................... City of San Diego ............................................ 17 ac (7 ha). 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70669 

TABLE 3.—CRITICAL HABITAT UNITS AND SUBUNITS FOR THE SAN DIEGO FAIRY SHRIMP. NUMBERS HAVE BEEN

ROUNDED TO THE NEAREST WHOLE DIGIT AND MAY OVERESTIMATE AREA DUE TO ROUNDING—Continued 

Unit/subunit Geographic area Owner Total 

designated 

4J ................................. Carroll Canyon ................................................ City of San Diego ............................................ 13 ac (5 ha). 

Private ............................................................. 1 ac (<1 ha). 

4K ................................ SANDER and Magnatron ................................ City of San Diego ............................................ 55 ac (22 ha). 

Private ............................................................. 1 ac (1 ha). 

4L ................................. Cubic ............................................................... Private ............................................................. 7 ac (3 ha). 

4M ................................ Montgomery Field ........................................... City of San Diego ............................................ 96 ac (39 ha). 

Unit 5 ........................... Southern Coastal Mesa, San Diego County.

5A ................................ Otay Mesa, northeast unit .............................. State of California ........................................... 16 ac (7 ha). 

County of San Diego ...................................... 8 ac (3 ha). 

Water District .................................................. 1 ac (<1 ha). 

Private ............................................................. 13 ac (5 ha). 

5B ................................ Otay Mesa, north unit ..................................... Private ............................................................. 304 ac (123 ha). 

5C ................................ Otay Mesa, east unit ....................................... Private ............................................................. 75 ac (30 ha). 

5D ................................ Otay Mesa, southeast unit .............................. Private ............................................................. 391 ac (158 ha). 

5F ................................ Otay Mesa, southwest unit ............................. U.S. Government ............................................ 11 ac (4 ha). 

City of San Diego ............................................ 73 ac (30 ha). 

Private ............................................................. 537 ac (217 ha). 

5G ................................ Otay Mesa, northwest unit .............................. City of San Diego ............................................ 19 ac (7 ha). 

Private ............................................................. 113 ac (46 ha). 

5H ................................ Lower Otay Reservoir ..................................... City of San Diego ............................................ 200 ac (81 ha). 

5I .................................. Marron Valley .................................................. City of San Diego ............................................ 24 ac (10 ha) 

Total ..................... ......................................................................... ......................................................................... 3,082 ac (1,248 ha)*. 

*Figures in table may not sum due to rounding. 

Unit Descriptions 

We present brief descriptions of all 

units and reasons why they meet the 

definition of critical habitat for the San 

Diego fairy shrimp below. 

Unit 1: Orange County (15 ac (6 ha)) 

Unit 1 is located in Orange County, 

California. The area was occupied at the 

time of listing and contains the PCEs 

essential to the conservation of the San 

Diego fairy shrimp that may require 

special management considerations or 

protection. The majority of the vernal 

pools in Orange County were eliminated 

prior to 1950 and only a small number 

of vernal pool complexes remain 

(Riefner and Pryor 1996, p. 300). This 

unit represents the northern extent of 

the species’ distribution in southern 

California and represents the historical 

distribution of coastal terrace vernal 

pools in this area. The vernal pools in 

Orange County are the only pools that 

form on Alo clay, Calleguas clay loam, 

Cieneba sandy loam, and Soper gravelly 

loam that support the San Diego fairy 

shrimp. This unit contains vernal pools 

that support San Diego fairy shrimp 

populations in the ‘‘Group A’’ genetic 

clade (Bohonak 2007, p. 1). For these 

reasons this unit is essential for 

recovery of the San Diego fairy shrimp. 

For more information about Unit 1 

please see the proposed rule (68 FR 

19888; April 22, 2003). 

Subunit 1A: The Irvine Ranch (Formerly 

North Ranch Policy Plan Area) 

We are excluding Subunit 1A from 

critical habitat because this area is part 

of The Irvine Ranch. We have 

determined that the benefits of 

excluding this subunit from the final 

designation outweigh the benefits of 

including it (see Exemptions and 

Exclusions section below for a detailed 

discussion of this exclusion). 

Subunit 1B: Fairview Park 

We are excluding Subunit 1B from 

critical habitat because this area is part 

of the Fairview Park Master Plan. We 

have determined that the benefits of 

excluding this subunit from the final 

designation outweigh the benefits of 

including it (see Exemptions and 

Exclusions section below for a detailed 

discussion of this exclusion). 

Subunit 1C: Newport-Banning Ranch 

We are designating subunit 1C as 

critical habitat for the San Diego fairy 

shrimp. Subunit 1C consists of 15 ac (6 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. It is located south of the Santa 

Ana River, 2 mi (3 km) inland from the 

coast. Subunit 1C consists of privately 

owned land. 

The vernal pool complex at NewportBanning Ranch is one of only five 

known vernal pool complexes 

containing the San Diego fairy shrimp in 

Orange County. This vernal pool 

complex and the vernal pool complex at 

Fairview Park (subunit 1B) represent the 

only remaining examples of coastal 

vernal pools in Orange County. Subunit 

1C is closed to recreational use; 

however, this area has been degraded by 

past activities and may face future 

impacts from the development of this 

site and/or its watershed. The PCEs in 

this critical habitat subunit may require 

special management considerations or 

protection to address threats from 

development activities and nonnative 

species that may negatively impact the 

San Diego fairy shrimp, its PCEs, and its 

habitat. 

Subunit 1D: Chiquita Ridge 

We are excluding Subunit 1D from 

critical habitat because this area is part 

of the Southern Subregion NCCP/HCP. 

We have determined that the benefits of 

excluding this subunit from the final 

designation outweigh the benefits of 

including it (see Exemptions and 

Exclusions section below for a detailed 

discussion of this exclusion). 

Subunit 1E: Radio Tower Road 

We are excluding Subunit 1E from 

critical habitat because this area is part 

of the Southern Subregion NCCP/HCP. 

We have determined that the benefits of 

excluding this subunit from the final 

designation outweigh the benefits of 

mstockstill on PROD1PC66 with RULES2

70670 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

including it (see Exemptions and 

Exclusions section below for a detailed 

discussion of this exclusion). 

Unit 2: San Diego, North Coastal Mesa 

(6 ac (3 ha)) 

Unit 2 is located in San Diego County, 

California. The area was occupied at the 

time of listing and contains the features 

we have identified as essential to the 

conservation of the San Diego fairy 

shrimp that may require special 

management considerations or 

protection. The vernal pool complexes 

in this unit occur on Carlsbad gravelly 

loam sand, Diablo clay, and Salinas 

clay. As a result of coastal development, 

most vernal pools supporting the San 

Diego fairy shrimp on coastal terraces in 

San Diego County have been lost. Unit 

2 represents the largest collection of 

vernal pools on coastal terraces that 

remain in San Diego County. Given the 

rarity of the San Diego fairy shrimp and 

the limited amount of remaining vernal 

pool habitat, this unit is essential to the 

conservation of this species because of 

the need to conserve vernal pools 

throughout the range of the species. 

This unit contains vernal pools that 

support San Diego fairy shrimp 

populations in the ‘‘Group B’’ genetic 

clade (Bohonak 2007, p. 1). This unit is 

also essential due to its role in 

maintaining the genetic diversity and 

population stability of the San Diego 

fairy shrimp. For more information 

about Unit 2 please see the proposed 

rule (68 FR 19888; April 22, 2003). 

We have determined that MCB Camp 

Pendleton’s INRMP provides a benefit to 

the San Diego fairy shrimp and therefore 

MCB Camp Pendleton, including the 

proposed subunits 2A–2F, is exempt 

from the designation of critical habitat 

pursuant to section 4(a)(3) of the Act 

(see Summary of Changes From 

Previously Designated Critical Habitat 

and 2003 Proposed Rule and 

Exemptions and Exclusions sections for 

more information on this exemption). 

Subunit 2G: Poinsettia Lane Commuter 

Station 

We are designating subunit 2G as 

critical habitat for the San Diego fairy 

shrimp. Subunit 2G consists of 6 ac (3 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. It is located in Carlsbad, 

California, north of Poinsettia Lane, 0.25 

mi (0.4 km) inland from the coast. 

Subunit 2G consists of 4 ac (2 ha) of 

public land owned by the North County 

Transit District (NCTD) and 2 ac (1 ha) 

of private land. 

Lands in this subunit owned by NCTD 

are in a conservation easement managed 

by CDFG. However, at this time 

additional management measures, such 

as monitoring of water quality and the 

restoration of native vegetation around 

the vernal pools, may be needed to 

conserve the PCEs for San Diego fairy 

shrimp. The PCEs in this critical habitat 

subunit may also require special 

management considerations or 

protection to address threats from 

altered hydrology and nonnative species 

that may negatively impact the San 

Diego fairy shrimp and its habitat. 

Unit 3: San Diego, Inland Valley (725 ac 

(292 ha)) 

Unit 3 contains vernal pool 

complexes within the jurisdiction of the 

City of San Marcos and the community 

of Ramona. The area was occupied at 

the time of listing and contains the 

features essential to the conservation of 

the San Diego fairy shrimp that may 

require special management 

considerations or protection for the San 

Diego fairy shrimp. The vernal pool 

complexes in unit 3 are associated with 

alluvial or volcanic type soils and 

include the only vernal pool complexes 

known to occur on Placentia soils 

(Service GIS database; soils described by 

Bowman 1973, pp. 68–69). The vernal 

pool complexes in San Marcos are 

associated with a unique plant 

association of multiple species of 

Brodiaea (Armstrong 2007, pp. 11–16). 

The recovery plan specifically identifies 

these vernal pools as essential for the 

recovery of the San Diego fairy shrimp. 

This unit includes vernal pools within 

the easternmost edge of the geographical 

distribution of the species and at the 

highest elevation where this species 

occurs. This unit contains vernal pools 

that support San Diego fairy shrimp 

populations in the ‘‘Group B’’ genetic 

clade (Bohonak 2004, pp. 3–9). 

Conservation of vernal pools in this unit 

will help maintain the diversity of 

vernal pool habitats and their unique 

geological substrates, and will retain the 

genetic diversity of these geographically 

distinct populations. For more 

information about Unit 3 please see the 

proposed rule (68 FR 19888; April 22, 

2003). 

Subunit 3A: San Marcos: Northeast 

We are designating subunit 3A as 

critical habitat for the San Diego fairy 

shrimp. Subunit 3A consists of 17 ac (7 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 3A is located north of 

State Route 78, just south of Palomar 

Community College, 8 mi (13 km) 

inland from the coast. Subunit 3A 

consists of 16 ac (6 ha) of privately 

owned land and of 1 ac (<1 ha) of land 

owned by a Special District. 

This site has been proposed for 

development, and it is likely that the 

vernal pools within this subunit will be 

directly or indirectly impacted by the 

development. The PCEs within this 

critical habitat subunit may require 

special management considerations or 

protection to address threats from 

development, off-road vehicles, and 

nonnative species that may negatively 

impact the San Diego fairy shrimp and 

its habitat. 

Subunit 3C: San Marcos: Southwest 

We are designating subunit 3C as 

critical habitat for the San Diego fairy 

shrimp. Subunit 3C consists of 63 ac (25 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 3C is located south of 

State Route 78, to the north of San 

Marcos Boulevard between South 

Pacific Street and South Las Posas Road, 

8 mi (13 km) inland from the coast. 

Subunit 3C consists of 11 ac (4 ha) of 

land owned by the City of San Marcos, 

4 ac (2 ha) of land owned by the Water 

District, and 48 ac (19 ha) of privately 

owned land. 

This site is currently not fenced and 

the vernal pool habitat in this subunit 

is subject to continuing impacts from 

off-road vehicles and illegal dumping. 

The PCEs in this critical habitat subunit 

may require special management 

considerations or protection to address 

threats from development, off-road 

vehicles, and nonnative species that 

may negatively impact the San Diego 

fairy shrimp and its habitat. 

Subunit 3D: San Marcos: Southeast 

We are designating subunit 3D as 

critical habitat for the San Diego fairy 

shrimp. Subunit 3D consists of 5 ac (2 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 3D is located south of 

State Route 78, east of Linda Vista Drive 

and west of Bent Avenue, 9 mi (14 km) 

inland from the coast. Subunit 3C is 

privately owned. The PCEs in this 

critical habitat subunit may require 

special management considerations or 

protection to address threats from 

altered hydrology and nonnative species 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70671 

that may negatively impact the San 

Diego fairy shrimp and its habitat. 

Subunit 3E.1: Ramona Grasslands 

We are designating subunit 3E.1 as 

critical habitat for the San Diego fairy 

shrimp. Subunit 3E.1 consists of 382 ac 

(154 ha) of habitat occupied by the 

species at the time of listing and the 

species continues to occur within this 

subunit. This subunit contains all of the 

features essential to the conservation of 

the species. Subunit 3E.1 is located in 

the western portion of the Santa Maria 

Valley, north of the Santa Maria Creek 

and southwest of the Ramona Airport, 

20 mi (32 km) inland from the coast. 

Subunit 3E.1 consists of 1 ac (<1 ha) 

land owned by the Water District and 

381 ac (153 ha) of privately owned land. 

Various conservation organizations 

are in the process of acquiring land 

within this subunit; however, not all of 

the land is conserved at this point and 

there is no long-term management plan 

for the conservation of the San Diego 

fairy shrimp and its vernal pool habitat. 

The PCEs in this critical habitat subunit 

may require special management 

considerations or protection to address 

threats from development, off-road 

vehicles, altered hydrology, and 

nonnative species that may negatively 

impact the San Diego fairy shrimp and 

its habitat. 

Subunit 3E.2: Ramona Airport 

We are designating subunit 3E.2 as 

critical habitat for the San Diego fairy 

shrimp. Subunit 3E.2 consists of 191 ac 

(77 ha) of habitat occupied by the 

species at the time of listing and the 

species continues to occur within this 

subunit. This subunit contains all of the 

features essential to the conservation of 

the species. Subunit 3E.2 is located in 

the central portion of the Santa Maria 

Valley, north of the Santa Maria Creek 

and south of the Ramona Airport, 21 mi 

(34 km) inland from the coast. Subunit 

3E.2 consists of 67 ac (27 ha) public 

land owned by the County of San Diego 

and 124 ac (50 ha) of privately owned 

land. 

Various conservation organizations 

are in the process of acquiring land 

within this subunit; however, not all of 

the land is conserved at this point and 

there is no long-term management plan 

for the conservation of the San Diego 

fairy shrimp. The PCEs in this critical 

habitat subunit may require special 

management considerations or 

protection to address threats from 

development, off-road vehicles, altered 

hydrology, and nonnative species that 

may negatively impact the San Diego 

fairy shrimp and its habitat. 

Subunit 3E.3: Ramona, Main Street 

We are designating subunit 3E.3 as 

critical habitat for the San Diego fairy 

shrimp. Subunit 3E.3 consists of 27 ac 

(11 ha) of habitat occupied by the 

species at the time of listing and the 

species continues to occur within this 

subunit. This subunit contains all of the 

features essential to the conservation of 

the species. Subunit 3E.3 is located 

along Main Street in Ramona, 23 mi (37 

km) inland from the coast. Subunit 3E.3 

consists of 1 ac (<1 ha) of land owned 

by the County of San Diego and 26 ac 

(10 ha) of private land. 

This site is privately owned and 

subject to potential development. In 

addition, the site is currently not fenced 

and its vernal pool habitat is subject to 

continuing impacts from off-road 

vehicles. The PCEs in this critical 

habitat subunit may require special 

management considerations or 

protection to address threats from 

development, off-road vehicles, altered 

hydrology, and nonnative species that 

may negatively impact the San Diego 

fairy shrimp and its habitat. 

Subunit 3E.4: Ramona High School 

We are designating subunit 3E.4 as 

critical habitat for the San Diego fairy 

shrimp. Subunit 3E.4 consists of 40 ac 

(16 ha) of habitat occupied by the 

species at the time of listing and the 

species continues to occur within this 

subunit. This subunit contains all of the 

features essential to the conservation of 

the species. Subunit 3E.4 is located east 

of State Route 67, 24 mi (39 km) inland 

from the coast. Subunit 3E.4 consists of 

35 ac (14 ha) of land owned by the 

Ramona Unified School District and 5 

ac (2 ha) of privately owned land. The 

PCEs in this critical habitat subunit may 

require special management 

considerations or protection to address 

current development threats, and 

impacts from off-road vehicles, altered 

hydrology, and nonnative species that 

may negatively impact the San Diego 

fairy shrimp and its habitat. 

Unit 4: San Diego, Central Coastal 

Mesas (551 ac (225 ha)) 

Unit 4 is located in San Diego County, 

California. The area was occupied at the 

time of listing and contains the features 

essential to the conservation of the San 

Diego fairy shrimp. These features may 

require special management 

considerations or protection due to 

threats from development, illegal trash 

dumping, OHV activity, and nonnative 

plant species. The occurrences of San 

Diego fairy shrimp in Unit 4 are 

associated with coastal terraces and 

mesas found south of the San Dieguito 

River to the Sweetwater River. While 

many of the vernal pool complexes in 

this unit have been destroyed or 

fragmented, the complexes being 

designated represent some of the best 

remaining vernal pools in San Diego 

County. Many of the vernal pools in this 

unit receive conservation protection by 

virtue of their land ownership; however, 

they may require additional 

management to maintain populations of 

San Diego fairy shrimp. This unit 

contains vernal pools that support San 

Diego fairy shrimp populations in both 

the ‘‘Group A’’ and ‘‘Group B’’ genetic 

clade (Bohonak 2004, pp. 3–9). This 

unit includes vernal pools that are 

within the center of this species’

geographical distribution and retains the 

genetic diversity of these geographically 

distinct populations. For more 

information about Unit 4 please see the 

proposed rule (68 FR 19888; April 22, 

2003). 

We have determined that MCAS 

Miramar’s INRMP provides a benefit to 

the San Diego fairy shrimp and, 

therefore, MCAS Miramar is exempt 

from the designation pursuant to section 

4(a)(3) of the Act (see Exemptions and 

Exclusions section below for a detailed 

discussion of this exemption). 

Subunit 4A/B: Del Mar Mesa 

We are designating subunit 4A/B as 

critical habitat for the San Diego fairy 

shrimp. Subunit 4A/B consists of 252 ac 

(102 ha) of habitat occupied by the 

species at the time of listing and the 

species continues to occur within this 

subunit. This subunit contains all of the 

features essential to the conservation of 

the species. Subunit 4A/B is located 

south of State Route 56 and north of Los 

Pen ̃ asquitos Canyon, 6 mi (10 km) 

inland from the coast. Subunit 4A/B 

consists 51 ac (21 ha) land owned by the 

City of San Diego, 5 ac (2 ha) land 

owned by the County of San Diego, 56 

ac (23 ha) land owned by the State of 

California, 41 ac (16 ha) land owned by 

the Service, and 99 ac (40 ha) is 

privately owned land. 

The PCEs in this critical habitat 

subunit may require special 

management considerations or 

protection to address threats from 

development, off-road vehicles, altered 

hydrology, and nonnative species that 

may negatively impact the San Diego 

fairy shrimp and its habitat. 

Subunit 4C: Murphy Canyon Navy 

Housing 

We are designating subunit 4C as 

critical habitat for the San Diego fairy 

shrimp. Subunit 4C consists of 41 ac (17 

ha) of habitat occupied by the species at 

the time of listing and the species 

mstockstill on PROD1PC66 with RULES2

70672 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 4C is located northeast 

of the junction of Interstate 8 and 

Interstate 15, 10 mi (16 km) inland from 

the coast. Subunit 4C consists of 40 ac 

(16 ha) of DOD land and 1 ac (<1 ha) 

of public land owned by the City of San 

Diego. 

As a result of two section 7 

consultations (Service 2002; Service 

2003), the vernal pool habitat in this 

subunit and in subunit 4D were restored 

to offset project impacts. The Navy has 

completed a 5-year monitoring and 

management period as described in the 

section 7 consultations and is now 

seeking funds for a long-term 

management plan for this area (Jacobsen 

2007, p. 1). However, at this time 

additional management measures may 

be needed for the conservation of San 

Diego fairy shrimp. The PCEs in this 

subunit may require special 

management considerations or 

protection to address on-going threats 

from recreational activities, illegal 

dumping, and nonnative species that 

may negatively impact the San Diego 

fairy shrimp and its habitat. 

Subunit 4D: Chollas Heights Navy 

Housing 

We are designating subunit 4D as 

critical habitat for the San Diego fairy 

shrimp. Subunit 4D consists of 16 ac (7 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 4D is located north of 

State Route 94 and north Chollas 

Reservoir, 8 mi (13 km) inland from the 

coast. Subunit 4D consists entirely of 

DOD land. 

As a result of two section 7 

consultations (Service 2002; Service 

2003), the vernal pool habitat in this 

subunit and in subunit 4C were restored 

to offset project impacts. The Navy has 

completed a 5-year monitoring and 

management period as described in the 

section 7 consultations and is now 

seeking funds for a long-term 

management plan for this area (Jacobsen 

2007, p. 1). However, at this time 

additional management measures may 

be needed for the conservation of San 

Diego fairy shrimp. The PCEs in this 

subunit may require special 

management considerations or 

protection to address on-going threats 

from nonnative species that may 

negatively impact the San Diego fairy 

shrimp and its habitat. 

Subunit 4E: Carmel Mountain, West 

We are designating subunit 4E as 

critical habitat for the San Diego fairy 

shrimp. Subunit 4E consists of 32 ac (13 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 4E is located south of 

State Route 56 and north of Los 

Pen ̃ asquitos Canyon, 3 mi (5 km) inland 

from the coast. Subunit 4E consists of 31 

ac (13 ha) of public land owned by the 

City of San Diego and 1 ac (<1 ha) of 

privately owned land. 

The PCEs in this critical habitat 

subunit may require special 

management considerations or 

protection to address threats from offroad vehicles, altered hydrology, and 

nonnative species that may negatively 

impact the San Diego fairy shrimp and 

its habitat. 

Subunit 4F: Carmel Mountain, East 

We are designating subunit 4F as 

critical habitat for the San Diego fairy 

shrimp. Subunit 4F consists of 4 ac (2 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. It is located south of State 

Route 56 and north of Los Pen ̃ asquitos 

Canyon, 3 mi (5 km) inland from the 

coast. Subunit 4F consists entirely of 

public land owned by the City of San 

Diego. 

The PCEs in this critical habitat 

subunit may require special 

management considerations or 

protection to address threats from offroad vehicles, altered hydrology, and 

nonnative species that may negatively 

impact the San Diego fairy shrimp and 

its habitat. 

Subunit 4G: Tierra Alta 

We are designating subunit 4G as 

critical habitat for the San Diego fairy 

shrimp. Subunit 4G consists of 5 ac (2 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 4G is located north of 

Calle Cristobal and south of Los 

Pen ̃ asquitos Canyon, 6 mi (10 km) 

inland from the coast. Subunit 4G 

consists of 2 ac (1 ha) of public land 

owned by the City of San Diego and 3 

ac (1 ha) of privately owned land. 

The private land in subunit 4G is 

conserved and maintained by the Tierra 

Alta Home Owner’s Association. This 

subunit is considered to be in the same 

complex and series as the Lopez Ridge 

vernal pools to the south (subunit 4H). 

However, at this time additional 

management measures may be needed 

for the conservation of San Diego fairy 

shrimp. The PCEs in this subunit may 

require special management 

considerations or protection to address 

on-going threats from recreational 

activities and illegal dumping that may 

negatively impact the San Diego fairy 

shrimp and its habitat. 

Subunit 4H: Lopez Ridge 

We are designating subunit 4H as 

critical habitat for the San Diego fairy 

shrimp. Subunit 4H consists of 11 ac (4 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 4H is located north of 

Calle Cristobal and south of Los 

Pen ̃ asquitos Canyon, 6 mi (10 km) 

inland from the coast. Subunit 4H 

consists of 7 ac (3 ha) of public land 

owned by the City of San Diego and 4 

ac (2 ha) of privately owned land. 

The private portion of this subunit is 

zoned for single family residential and 

it is vulnerable to impacts associated 

with development. The publicly owned 

portion of this critical habitat unit is 

preserved as a mitigation site as a 

condition of a Service Biological 

Opinion (1–1–83–F–29R (Service 

1983)). However, at this time additional 

management measures may be needed 

for the conservation of San Diego fairy 

shrimp. The PCEs in this critical habitat 

subunit may require special 

management considerations or 

protection to address threats from 

development, off-road vehicles, altered 

hydrology, and nonnative species that 

may negatively impact the San Diego 

fairy shrimp and its habitat. 

Subunit 4I: Winterwood 

We are designating subunit 4I as 

critical habitat for the San Diego fairy 

shrimp. Subunit 4I consists of 17 ac (7 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 4I is located to the 

south of Challenger Middle School in 

Mira Mesa, 6 mi (10 km) inland from the 

coast. Subunit 4I consists entirely of 

public land owned by the City of San 

Diego. 

This area is currently owned and 

managed by the City of San Diego Parks 

and Recreation Department. The subunit 

is partially conserved as mitigation as a 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70673 

result of U.S. Environmental Protection 

Agency compliance order CWA 404–

09a–94–005 (see RECON 1996 for 

additional information). However, at 

this time additional management 

measures may be needed for the 

conservation of San Diego fairy shrimp. 

The PCEs in this subunit may require 

special management considerations or 

protection to address threats from 

recreational activities, nonnative weed 

invasion, illegal dumping, and off-road 

vehicle use that may negatively impact 

the San Diego fairy shrimp and its 

habitat. 

Subunit 4J: Carroll Canyon 

We are designating subunit 4J as 

critical habitat for the San Diego fairy 

shrimp. Subunit 4J consists of 14 ac (6 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 4J is located at the 

southern terminus of Parkdale Avenue 

in Mira Mesa, 6 mi (10 km) inland from 

the coast. Subunit 4J consists of 14 ac 

(6 ha) of public land owned by the City 

of San Diego and 1 ac (<1 ha) of 

privately owned land. 

A portion of this subunit was 

conserved as mitigation pursuant to the 

requirements of the Service Biological 

Opinions 1–1–82–F–108 (Service 1982a) 

and 1–1–82–F–108R (Service 1982b). 

An additional area within this subunit 

was purchased by the City of San Diego 

with money from the City of San Diego’s 

Vernal Pool Preservation Fund. The site 

has been maintained per the 

requirements of Service Biological 

Opinions 1–1–82–F–108 and 1–1–82–F–

108R, and the City of San Diego’s Vernal 

Pool Management Plan (City of San 

Diego 1996). However, at this time 

additional management measures may 

be needed for the conservation of San 

Diego fairy shrimp. The PCEs in this 

subunit may require special 

management considerations or 

protection to address threats from ongoing recreational activities and illegal 

dumping that may negatively impact the 

San Diego fairy shrimp and its habitat. 

Subunit 4K: San Diego Energy Recovery 

(SANDER) and Magnatron 

We are designating subunit 4K as 

critical habitat for the San Diego fairy 

shrimp. Subunit 4K consists of 56 ac (23 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 4K is located to the 

west of the intersection of Magnatron 

Boulevard and State Route 163 and 

south of State Route 52, 7 mi (11 km) 

inland from the coast. Subunit 4K 

consists of 55 ac (22 ha) of public land 

owned by the City of San Diego and 1 

ac (<1 ha) of privately owned land. 

Subunit 4K has an ‘‘Industrial Parks’’

zoning designation and is not currently 

conserved or being managed for the San 

Diego fairy shrimp or its habitat. The 

PCEs in subunit may require special 

management considerations or 

protection to address on-going threats 

from development, recreational 

activities, nonnative weed invasion, 

illegal dumping, and off-road vehicle 

use that may negatively impact the San 

Diego fairy shrimp and its habitat. 

Subunit 4L: Cubic 

We are designating subunit 4L as 

critical habitat for the San Diego fairy 

shrimp. Subunit 4L consists of 7 ac (3 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 4L is located between 

State Route 52 and State Route 163 at 

the northeastern terminus of Kearny 

Mesa Road in Kearny Mesa, 8 mi (13 

km) inland from the coast. Subunit 4L 

consists of privately owned land. 

Subunit 4L has an ‘‘Industrial Parks’’

zoning designation and is not conserved 

or being managed to protect the San 

Diego fairy shrimp or its habitat. The 

PCEs within this subunit may require 

special management considerations or 

protection to address on-going threats 

from development, recreational 

activities, nonnative weed invasion, 

illegal trash dumping, and off-road 

vehicle use that may negatively impact 

the San Diego fairy shrimp and its 

habitat. 

Subunit 4M: Montgomery Field 

We are designating subunit 4M as 

critical habitat for the San Diego fairy 

shrimp. Subunit 4M consists of 96 ac 

(39 ha) of habitat occupied by the 

species at the time of listing and the 

species continues to occur within this 

subunit. This subunit contains all of the 

features essential to the conservation of 

the species. Subunit 4M is located north 

of Aero Drive in Kearny Mesa, 7 mi (11 

km) inland from the coast. Subunit 4M 

is owned and managed by the City of 

San Diego, Airports Division. 

The vernal pool complexes within 

subunit 4M are managed according to 

the Service Biological Opinion 1–6–94–

F–32 (Service 1995, pp. 1–33), the 

Montgomery Field Final Conceptual 

Mitigation Plan (P&D Technologies 

1994), and the Vernal Pool Management 

Plan (City of San Diego 1996). The PCEs 

in this subunit may require special 

management considerations or 

protection to address threats from 

development, on-going operational 

management for the airport, and 

nonnative weed invasion that may 

negatively impact the San Diego fairy 

shrimp and its habitat. 

Unit 5: San Diego, Southern Coastal 

Mesa (1,785 ac (722 ha)) 

Unit 5 is located in San Diego County, 

California. The area was occupied at the 

time of listing and contains the features 

essential to the conservation of the San 

Diego fairy shrimp that may require 

special management considerations or 

protection. This southernmost unit of 

critical habitat is essential to the 

conservation of the San Diego fairy 

shrimp because it helps to maintain the 

ecological distribution and genetic 

diversity of the species. Due to the rapid 

urbanization on both sides of the border 

between the U.S. and Mexico, nearly all 

vernal pool habitat in this region has 

been lost. This unit contains vernal 

pools that support San Diego fairy 

shrimp populations in the ‘‘Group A’’

genetic clade (Bohonak 2004, pp. 3–9). 

The conservation of the remaining 

vernal pools in this unit is essential to 

maintain continuity in the range 

between the U.S. and Mexico as well as 

the genetic diversity of the species. For 

more information about Unit 5 please 

see the proposed rule (68 FR 19888; 

April 22, 2003). 

We have determined that the INRMP 

for Naval Base Coronado, which 

includes the Navy Outlying Landing 

Field and Naval Radar Receiving 

Facility, provides a benefit to the San 

Diego fairy shrimp and therefore 

Department of Defense lands that are 

part of Naval Base Coronado’s INRMP 

are exempt from critical habitat 

pursuant to section 4(a)(3) of the Act 

(see Exemptions and Exclusions section 

below for a detailed discussion of this 

exemption). 

Subunit 5A: Otay Mesa, Northeast 

We are designating subunit 5A as 

critical habitat for the San Diego fairy 

shrimp. Subunit 5A consists of 38 ac (16 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 5A is located south of 

Otay River at the base of Otay Mountain, 

12 mi (19 km) inland from the coast. 

Subunit 5A consists of 8 ac (3 ha) land 

owned by the County of San Diego, 16 

ac (7 ha) land owned by the State of 

California, 1 ac (<1 ha) land owned by 

mstockstill on PROD1PC66 with RULES2

70674 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

the Water District, and 13 ac (5 ha) 

privately owned land. 

We have excluded land covered by 

the County of San Diego subarea plan 

under the MSCP in this subunit because 

we have determined that the benefits of 

exclusion outweigh the benefits of 

inclusion (see Exemptions and 

Exclusions section below for a detailed 

discussion of this exclusion). However, 

lands within Major/Minor Amendment 

Areas in this subunit are not covered by 

the County of San Diego subarea plan 

under the MSCP. These areas contain 

sensitive resources that were not 

addressed during the development of 

the County of San Diego subarea plan 

under the MSCP and are to be addressed 

in a future amendment to the MSCP. We 

are designating all lands in subunit 5A 

that are not covered by the County of 

San Diego subarea plan under the 

MSCP, including these future 

amendment areas. The PCEs in this 

subunit may require special 

management considerations or 

protection to address threats from 

development, off-road vehicle use, and 

nonnative weed invasion that may 

negatively impact the San Diego fairy 

shrimp and its habitat. 

Subunit 5B: Otay Mesa, North 

We are designating 304 ac (123 ha) of 

subunit 5B as critical habitat for the San 

Diego fairy shrimp. Subunit 5B consists 

of habitat occupied by the species at the 

time of listing and the species continues 

to occur within this subunit. This 

subunit contains all of the features 

essential to the conservation of the 

species. Subunit 5B is located central 

Otay Mesa, north of Otay Mesa Road, 

east of Brown Field, 9 mi (15 km) inland 

from the coast. Subunit 5B consists of 

privately owned land. The PCEs in this 

subunit may require special 

management considerations or 

protection to address threats from 

development, off-road vehicle use, and 

nonnative weed invasion that may 

negatively impact the San Diego fairy 

shrimp and its habitat. 

We have excluded land covered by 

the County of San Diego subarea plan 

under the MSCP in this subunit because 

we have determined that the benefits of 

excluding this subunit from the final 

designation outweigh the benefits of 

including it (see Exemptions and 

Exclusions section below for a detailed 

discussion of this exclusion). 

Subunit 5C: Otay Mesa, East 

We are designating subunit 5C as 

critical habitat for the San Diego fairy 

shrimp. Subunit 5C consists of 75 ac (30 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 5C is located on 

eastern Otay Mesa, northeast of Otay 

Mesa Road, 12 mi (19 km) inland from 

the coast. Subunit 5C consists of 

privately owned land. 

This vernal pool complex has had 

relatively little human disturbance 

compared to most vernal pool 

complexes on Otay Mesa. However, the 

PCEs in this subunit may require special 

management considerations or 

protection to address threats from 

development, off-road vehicle use, and 

nonnative weed invasion that may 

negatively impact the San Diego fairy 

shrimp and its habitat. 

Subunit 5D: Otay Mesa, Southeast 

We are designating subunit 5D as 

critical habitat for the San Diego fairy 

shrimp. Subunit 5D consists of 391 ac 

(158 ha) of habitat occupied by the 

species at the time of listing and the 

species continues to occur within this 

subunit. This subunit contains all of the 

features essential to the conservation of 

the species. Subunit 5D is located north 

of the United States/Mexico border, at 

the base of Otay Mountain, 13 mi (21 

km) inland from the coast. Subunit 5D 

consists entirely of privately owned 

land. 

The vernal pool complexes in this 

unit have not yet been directly impacted 

by development or fragmentation. The 

populations of San Diego fairy shrimp 

in this subunit are the closest United 

States population to any of the 

populations of San Diego fairy shrimp 

in Mexico. As vernal pool complexes 

become more fragmented by 

development in both the United States 

and Mexico, the preservation of vernal 

pool complexes near to one another will 

be increasingly important to these 

ecosystems to provide continuity in the 

range between the United States and 

Mexico. The PCEs in this subunit may 

require special management 

considerations or protection to address 

on-going threats from development, offroad vehicle use, and nonnative weed 

invasion that may negatively impact the 

San Diego fairy shrimp and its habitat. 

Subunit 5F: Otay Mesa, Southwest 

We are designating subunit 5F as 

critical habitat for the San Diego fairy 

shrimp. Subunit 5F consists of 621 ac 

(251 ha) of habitat occupied by the 

species at the time of listing and the 

species continues to occur within this 

subunit. This subunit contains all of the 

features essential to the conservation of 

the species. Subunit 5F is located south 

of Otay Mesa Road and north of the 

United States/Mexico border on the 

western portion of Otay Mesa, 7 mi (11 

km) inland from the coast. Subunit 5F 

consists of 11ac (4 ha) of land owned by 

the U.S. Government, 73 ac (30 ha) of 

land owned by the City of San Diego, 

and 537 ac (217 ha) of privately owned 

land. 

Some of the land within this subunit 

has been purchased for conservation; 

however, these areas may require 

measures to ensure that the San Diego 

fairy shrimp is conserved on these 

lands. Additionally, there are lands in 

this subunit that are privately owned 

and may be partially developed. 

Conservation measures may be required 

in these areas to ensure that the 

structure and function of the vernal pool 

habitat for San Diego fairy shrimp is not 

altered and that the PCEs are protected. 

The PCEs in this subunit may require 

special management considerations or 

protection to address threats from 

development, off-road vehicle use, and 

nonnative weed invasion that may 

negatively impact the San Diego fairy 

shrimp and its habitat. 

We are excluding DHS-owned land at 

Arnie’s Point (29 ac (12 ha)) from this 

subunit because we have determined 

that the benefits of exclusion outweigh 

the benefits of inclusion (see 

Exemptions and Exclusions section 

below for a detailed discussion of this 

exclusion). 

Subunit 5G: Otay Mesa, Northwest 

We are designating subunit 5G as 

critical habitat for the San Diego fairy 

shrimp. Subunit 5G consists of 132 ac 

(53 ha) of habitat occupied by the 

species at the time of listing and the 

species continues to occur within this 

subunit. This subunit contains all of the 

features essential to the conservation of 

the species. Subunit 5G is located north 

of Otay Mesa Road on the mesa tops 

around Dennery Canyon, 7 mi (11 km) 

inland from the coast. Subunit 5G 

consists of public and private land. 

Subunit 5G consists of 19 ac (7 ha) of 

land owned by the City of San Diego 

and 113 ac (46 ha) of privately owned 

land. 

Subunit 5G includes a number of 

vernal pool complexes. Most of the 

vernal pool complexes in this unit have 

been purchased for conservation; 

however, some of the unprotected areas 

may be impacted by development. In 

addition to the threats posed by 

development to PCEs in some portions 

of the subunit, the PCEs throughout the 

subunit may require special 

management considerations or 

protection to address threats from offroad vehicle use, and nonnative weed 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70675 

invasion that may negatively impact the 

San Diego fairy shrimp and its habitat. 

Subunit 5H: Lower Otay Reservoir 

We are designating subunit 5H as 

critical habitat for the San Diego fairy 

shrimp. Subunit 5H consists of 200 ac 

(81 ha) of habitat occupied by the 

species at the time of listing and the 

species continues to occur within this 

subunit. This subunit contains all of the 

features essential to the conservation of 

the species. The portion of subunit 5H 

being designated as critical habitat is 

located on the south side of Lower Otay 

Reservoir, 15 mi (24 km) inland from 

the coast. Subunit 5H is entirely public 

land owned by the City of San Diego. 

We have excluded all of the land 

covered by the County of San Diego 

subarea plan under the MSCP in this 

subunit because we have determined 

that the benefits of excluding this 

subunit from the final designation 

outweigh the benefits of including it 

(see Exemptions and Exclusions section 

below for a detailed discussion of this 

exclusion). 

Remaining vernal pool complexes in 

this subunit are isolated from urbanized 

areas of San Diego and this subunit may 

be one of the few places where indirect 

effects from development have not 

placed stress on the population of San 

Diego fairy shrimp. However, the PCEs 

in this subunit may require special 

management considerations or 

protection to address threats from offroad vehicles and nonnative weed 

invasion that may negatively impact the 

San Diego fairy shrimp and its habitat. 

Subunit 5I: Marron Valley 

We are designating subunit 5I as 

critical habitat for the San Diego fairy 

shrimp. Subunit 5I consists of 24 ac (10 

ha) of habitat occupied by the species at 

the time of listing and the species 

continues to occur within this subunit. 

This subunit contains all of the features 

essential to the conservation of the 

species. Subunit 5I is located 

approximately 25 mi (40 km) east of the 

coast along the United States/Mexico 

border. Subunit 5I is entirely public 

land owned by the City of San Diego. 

This area is isolated from urbanized 

areas of San Diego and may be one of 

the few places where indirect effects 

from development have not placed 

stress on the population of San Diego 

fairy shrimp. Subunit 5I is within the 

Marron Valley Conservation Bank, 

which is included in the MSCP 

Cornerstone Bank Agreement. The PCEs 

in this subunit may require special 

management considerations or 

protection to address threats from offroad vehicles use and nonnative weed 

invasion that may negatively impact the 

San Diego fairy shrimp and its habitat. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. Decisions by the 5th and 9th 

Circuit Court of Appeals have 

invalidated our definition of 

‘‘destruction or adverse modification’’

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F. 3d 1059 (9th Cir 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service et al., 245 F.3d 434, 

442F (5th Cir 2001)), and we do not rely 

on this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under the statutory provisions 

of the Act, we determine destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the PCEs 

to be functionally established) to serve 

its intended conservation role for the 

species. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with the 

Service on any action that is likely to 

jeopardize the continued existence of a 

species proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. This is a 

procedural requirement only, as any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. However, once a species 

proposed for listing becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

7(a)(2) apply to any discretionary 

Federal action. The primary utility of 

the conference procedures is to allow a 

Federal agency to maximize its 

opportunity to adequately consider 

species proposed for listing and 

proposed critical habitat and to avoid 

potential delays in implementing their 

proposed action because of the section 

7(a)(2) compliance process, if we list 

those species or designate critical 

habitat. 

Under conference procedures, we may 

provide advisory conservation 

recommendations to assist the agency in 

eliminating conflicts that may be caused 

by the proposed action. We may 

conduct conferences either informally 

or formally. Informal conferences are 

typically used if the proposed action is 

not likely to have any adverse effects to 

the species proposed for listing or 

proposed critical habitat. Formal 

conferences are typically used when the 

Federal agency or the Service believes 

the proposed action is likely to cause 

adverse effects to species proposed for 

listing or critical habitat, inclusive of 

those that may cause jeopardy or 

adverse modification. 

We generally provide the results of an 

informal conference in a conference 

report, while we provide the results of 

a formal conference in a conference 

opinion. Conference opinions on 

proposed species or critical habitat are 

typically prepared according to 50 CFR 

402.14, as if the proposed species were 

already listed or the proposed critical 

habitat was already designated. We may 

adopt the conference opinion as the 

biological opinion when the species is 

listed or the critical habitat is 

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) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of the 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. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘Reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

• Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

• Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

• Are economically and 

technologically feasible, and 

mstockstill on PROD1PC66 with RULES2

70676 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

• Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

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 we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Federal activities that may affect San 

Diego fairy shrimp or its designated 

critical habitat require consultation 

under section 7 of the Act. Activities on 

State, Tribal, local, or private lands 

requiring a Federal permit (such as a 

permit from the U.S. Army Corps of 

Engineers under section 404 of the 

Clean Water Act (33 U.S.C. 1251 et seq.) 

or a permit from us under section 10 of 

the Act or involving some other Federal 

action (such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency) are 

also subject to the section 7(a)(2) 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local, or private lands that are not 

federally funded, authorized, or 

permitted, do not require section 7(a)(2) 

consultations. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species, or would retain its current 

ability for the primary constituent 

elements to be functionally established. 

Activities that may destroy or adversely 

modify critical habitat are those that 

alter the PCEs to an extent that 

appreciably reduces the conservation 

value of critical habitat for San Diego 

fairy shrimp. Generally, the 

conservation role of San Diego fairy 

shrimp critical habitat units is to 

support viable core area populations. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore should result in consultation 

for San Diego fairy shrimp include, but 

are not limited to: 

(1) Actions that would permanently 

reduce or increase: the depth of a vernal 

pool; the ponding duration and 

inundation of the vernal pool; or other 

vernal pool features beyond the 

tolerances of the San Diego fairy shrimp 

(PCE 1). Actions that could permanently 

alter the features in the vernal pool 

basin that the San Diego fairy shrimp 

requires include, but are not limited to: 

discharge of dredged or fill material into 

vernal pools; erosion of sediments from 

fill material; the introduction of water, 

other liquids, or chemicals (including 

herbicides and pesticides) into the 

vernal pool basin; the disturbance of 

soil profile by grading, digging or other 

earthmoving work in and around the 

vernal pool basin; and/or other activities 

such as off-road vehicle use, heavy foot 

traffic, grazing, vegetation removal, or 

road construction within the watershed 

for the vernal pools. 

(2) Actions that impact the watershed 

and the local hydrology of a vernal pool 

complex (PCE 2). These actions could 

increase or decrease the amount of 

water that comes into a vernal pool 

complex (PCE 2). These actions could 

also change the timing or amount of 

water that flows into a vernal pool 

complex and alter the timing, duration, 

and amount of water in the vernal pool 

basins (PCE 1). Actions that could alter 

the hydrology of a vernal pool complex 

include, but are not limited to: the 

creation of impervious surfaces around 

a vernal pool complex; channeling 

water runoff into a vernal pool complex; 

the use of artificial irrigation near a 

vernal pool complex; cut and fill work 

in or adjacent to the vernal pool 

watersheds that disrupts the surface and 

subsurface water flow; creating 

structures that limit the amount of 

natural water runoff into a vernal pool 

complex; and/or grading, digging or 

other earthmoving work in and around 

the vernal pool watershed. 

(3) Actions that would permanently 

alter the function of the underlying 

claypan or hardpan soil layer (PCE 3) to 

hold and retain water in the vernal pool 

basin (PCE 1). Damage to the claypan or 

hardpan layer could impact the 

hydrology of a vernal pool complex and 

disrupt the ability of the vernal pools in 

the complex to fill with water or to hold 

water (PCE 1). Actions that disturb the 

claypan or hardpan layer can also 

impact the flow of water at the surface 

and subsurface level so that the vernal 

pool watershed is impacted and the 

amount of water following into or out of 

a vernal pool complex is altered (PCE 3). 

Actions that could permanently alter the 

function of the underlying claypan or 

hardpan soil layer (PCE 3) include, but 

are not limited to: grading or 

earthmoving work that disrupts or rips 

into the claypan or hardpan soil layer; 

cut and fill work that disrupts the 

surface or subsurface water flow by 

disrupting the claypan or hardpan soil 

layer; digging, trenching, mining, and/or 

drilling into the claypan or hardpan soil 

layer; and/or construction activities that 

create cut slopes, which disrupt the 

claypan or hardpan soil layer. 

We consider all of the units 

designated as critical habitat, as well as 

those that have been excluded or 

exempt, to contain features essential to 

the conservation of the San Diego fairy 

shrimp. All units are within the 

geographical area occupied by the 

species at the time of listing and are 

likely to be used by the San Diego fairy 

shrimp. Federal agencies already 

consult with us on activities in areas 

currently occupied by the San Diego 

fairy shrimp, or if the species may be 

affected by the action, to ensure that 

their actions do not jeopardize the 

continued existence of the San Diego 

fairy shrimp. 

Application of Section 4(a)(3) and 

Exclusions Under Section 4(b)(2) of the 

Act 

Section 4(a)(3) 

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resource management 

plan (INRMP) by November 17, 2001. 

An INRMP integrates implementation of 

the military mission of the installation 

with stewardship of the natural 

resources found on the base. Each 

INRMP includes: 

• An assessment of the ecological 

needs on the installation, including the 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70677 

need 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. 

Among other things, each INRMP must, 

to the extent appropriate and applicable, 

provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108–

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’

We consult with the military on the 

development and implementation of 

INRMPs for installations with listed 

species. We analyzed INRMPs 

developed by military installations 

located within the range of the proposed 

critical habitat designation for San 

Diego fairy shrimp to determine if they 

are exempt under section 4(a)(3) of the 

Act. 

Approved INRMPs 

In the April 22, 2003, proposed rule 

(68 FR 19888), we considered but did 

not propose as critical habitat lands on 

MCAS Miramar and U.S. Navy’s NRRF 

under Naval Base Coronado under 

sections 3(5)(A) and 4(b)(2) of the Act, 

based on the benefits provided by their 

completed INRMPs. We also considered, 

but did not propose, mission-essential 

training areas on MCB Camp Pendleton 

under section 4(b)(2) of the Act for 

national security reasons. However, 

non-training areas on MCB Camp 

Pendleton were included in the 2003 

proposed critical habitat designation. 

Following the publication of the 

proposed rule, the Act was amended to 

include section 4(a)(3)(B)(i). As stated 

above, section 4(a)(3)(B)(i) of the Act (16 

U.S.C. 1533(a)(3)(B)(i)) now provides: 

‘‘The Secretary shall not designate as 

critical habitat any lands or other 

geographical areas owned or controlled 

by the Department of Defense, or 

designated for its use, that are subject to 

an integrated natural resources 

management plan prepared under 

section 101 of the Sikes Act (16 U.S.C. 

670a), if the Secretary determines in 

writing that such plan provides a benefit 

to the species for which critical habitat 

is proposed for designation.’’ The 

INRMPs for MCAS Miramar, MCB Camp 

Pendleton, NRRF, and NOLF include 

measures that benefit the San Diego 

fairy shrimp (a brief discussion of the 

benefits of each INRMP follows below). 

Therefore, under Section 4(a)(3)(B)(i) of 

the Act, we are exempting lands on 

MCAS Miramar, MCB Camp Pendleton, 

NRRF, or NOLF from critical habitat for 

the San Diego fairy shrimp, and we are 

not relying on section 3(5)(A) of the Act 

as an additional basis for our decision 

not to designate these military lands. 

Marine Corps Air Station Miramar 

(MCAS Miramar) 

We have determined that 

conservation efforts identified in the 

INRMP for MCAS Miramar provide a 

benefit to the San Diego fairy shrimp 

occurring on MCAS Miramar. This 

includes 1,703 ac (689 ha) of habitat 

throughout the western portion of 

MCAS Miramar. Therefore, this 

installation is exempt from critical 

habitat for San Diego fairy shrimp under 

section 4(a)(3) of the Act for the reasons 

described below. 

MCAS Miramar completed a final 

INRMP in May 2000. MCAS Miramar 

revised and updated its INRMP in 2006 

to address conservation and 

management recommendations within 

the scope of the installation’s military 

mission, including conservation 

measures for the San Diego fairy shrimp 

and vernal pool habitat on the base 

(MCAS Miramar 2006, Section 7, pp. 

17–23). 

We have determined that MCAS 

Miramar’s INRMP benefits the San 

Diego fairy shrimp through ongoing 

efforts to avoid and minimize impacts to 

the species and vernal pool habitat. The 

INRMP classifies nearly all of the vernal 

pool basins and watersheds on MCAS 

Miramar as a Level I Management Area. 

Under the INRMP, Level I Management 

Areas receive the highest conservation 

priority of the various levels of 

Management Areas on MCAS Miramar. 

The conservation of vernal pool basins 

and watersheds in Level I Management 

Areas is achieved through: (1) Education 

of base personnel; (2) implementation of 

proactive measures that help avoid 

accidental impacts (e.g., signs and 

fencing); (3) development of procedures 

to respond to and restore accidental 

impacts on vernal pools; and (4) 

maintenance of an inventory of vernal 

pool basins and the associated 

watersheds on MCAS Miramar. Further, 

the MCAS Miramar’s environmental 

security staff reviews projects and 

enforces existing regulations and orders 

that, through their implementation, 

avoid and minimize impacts to natural 

resources, including the San Diego fairy 

shrimp and its habitat. Activities 

occurring on MCAS Miramar are 

currently being conducted in a manner 

that minimizes impacts to San Diego 

fairy shrimp and prevents degradation 

or destruction of vernal pool habitat. 

This military installation has an 

approved INRMP that we have 

determined provides a benefit to the San 

Diego fairy shrimp, and the Marine 

Corps has committed to work closely 

with the Service and CDFG to 

continually refine the existing INRMP as 

part of the Sikes Act’s INRMP review 

process. Based on the above 

considerations, and consistent with the 

direction provided in section 

4(a)(3)(B)(i) of the Act, this installation 

is exempt from this critical habitat 

designation. 

Marine Corps Base Camp Pendleton 

(MCB Camp Pendleton) 

We have determined that 

conservation efforts identified in the 

INRMP for MCB Camp Pendleton 

provide a benefit to the San Diego fairy 

shrimp occurring on MCB Camp 

Pendleton. This includes 7,750 ac (3,137 

ha) of habitat located in the following 

areas: Cockleburr Mesa; La Pulgas; San 

Mateo; the State Park Lease Area (San 

Onofre State Park); Stuart Mesa; Wire 

Mountain; and O’Neill (names of areas 

follow those used in the recovery plan 

(Service 1998a, Appendix E)). 

Therefore, this installation is exempt 

from critical habitat for San Diego fairy 

shrimp pursuant to section 4(a)(3) of the 

Act for the reasons described below. 

MCB Camp Pendleton completed 

their INRMP in November 2001. MCB 

Camp Pendleton revised and updated its 

INRMP in 2007 to address conservation 

and management recommendations 

within the scope of the installation’s 

military mission, including 

conservation measures for the San Diego 

fairy shrimp and vernal pool habitat on 

the base (MCB Camp Pendleton 2007, 

Section 4, pp. 51–76). Also, according to 

the 2007 INRMP, California State Parks 

is required to conduct its natural 

resources management consistent with 

the philosophies and supportive of the 

objectives of the revised 2007 INRMP 

(MCB Camp Pendleton 2007, pp. 2–31). 

mstockstill on PROD1PC66 with RULES2

70678 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

MCB Camp Pendleton’s INRMP 

benefits the San Diego fairy shrimp 

through ongoing efforts to survey and 

monitor the species and to provide this 

information to all necessary personnel 

through MCB Camp Pendleton’s GIS 

database on sensitive resources and in 

their published resource atlas. MCB 

Camp Pendleton’s INRMP also benefits 

the San Diego fairy shrimp by 

implementing the following base 

directives to avoid and minimize 

adverse effects to the species: (1) 

Bivouac, command post, and field 

support activities should be no closer 

than 984 ft (300 m) to occupied San 

Diego fairy shrimp habitat year round; 

(2) vehicle and equipment operations 

are limited to existing road and trail 

networks year round; and (3) any soil 

excavation, filling, or grading require 

environmental clearance. Further, MCB 

Camp Pendleton’s environmental 

security staff review projects and 

enforces existing regulations and orders 

that, through their implementation, 

avoid and minimize impacts to natural 

resources, including the San Diego fairy 

shrimp and its habitat. Activities 

occurring on MCB Camp Pendleton are 

currently being conducted in a manner 

that minimizes impacts to San Diego 

fairy shrimp habitat. In addition, MCB 

Camp Pendleton provides training to 

personnel on environmental awareness 

for sensitive resources on the base 

including San Diego fairy shrimp and 

vernal pool habitat. We are also 

consulting with the Marine Corps under 

section 7 of the Act to programmatically 

address potential impacts to the San 

Diego fairy shrimp (and several other 

species) as a result of military training 

and other activities on MCB Camp 

Pendleton. Upon completion of this 

consultation, we anticipate additional 

measures that benefit San Diego fairy 

shrimp will be incorporated into the 

INRMP for MCB Camp Pendleton. 

MCB Camp Pendleton has an 

approved INRMP that we have 

determined provides a benefit to the San 

Diego fairy shrimp and the Marine 

Corps has committed to work closely 

with the Service, CDFG, and California 

Department of Parks and Recreation to 

continually refine the existing INRMP as 

part of the Sikes Act’s INRMP review 

process. Based on the above 

considerations, and consistent with the 

direction provided in section 

4(a)(3)(B)(i) of the Act, MCB Camp 

Pendleton, including those lands leased 

to the California State Parks (i.e., San 

Onofre State Beach) is exempt from this 

critical habitat. 

Naval Base Coronado (Including Naval 

Radar Receiving Facility and Naval 

Outlying Landing Field) 

We have determined that 

conservation efforts identified in the 

INRMP for Naval Base Coronado (Naval 

Base Coronado 2002, Section 4, pp. 4–

47) provide a benefit to the San Diego 

fairy shrimp. This includes 169 ac (68 

ha) of habitat covered by Naval Base 

Coronado’s INRMP at the following 

installations: the Naval Radar Receiving 

Facility (NRRF) and the Naval Outlying 

Landing Field (NOLF). Therefore, this 

installation is exempt from critical 

habitat for San Diego fairy shrimp under 

section 4(a)(3) of the Act for the reasons 

described below. 

Naval Base Coronado completed an 

INRMP in May 2002, which includes 

NRRF south of Coronado and NOLF in 

Imperial Beach. Naval Base Coronado 

completed the INRMP to address 

conservation and management 

recommendations within the scope of 

the installation’s military mission. 

Naval Base Coronado’s INRMP provides 

conservation measures for the San Diego 

fairy shrimp and vernal pool habitat on 

NRRF and NOLF. 

One of the goals of Naval Base 

Coronado’s INRMP is to conserve the 

San Diego fairy shrimp through the 

management of vernal pool habitat, 

including the following provisions: (1) 

Monitor the status of San Diego fairy 

shrimp populations; (2) post signs 

around vernal pools; (3) advise 

personnel to keep vehicles on the main 

roads while traveling through the 

property; and (4) seek opportunities to 

restore disturbed vernal pool habitats 

while considering potential impacts to 

the San Diego fairy shrimp. Further, the 

Naval Base Coronado’s environmental 

security staff reviews projects and 

enforces existing regulations and orders 

that, through their implementation, 

avoid and minimize impacts to natural 

resources, including San Diego fairy 

shrimp and their habitat. Activities 

occurring on NRRF and NOLF are 

currently being conducted in a manner 

that minimizes impacts to San Diego 

fairy shrimp habitat. 

Naval Base Coronado, which includes 

NRRF and NOLF, has an approved 

INRMP that we have determined 

provides a benefit to the San Diego fairy 

shrimp and the Navy has committed to 

work closely with the Service and CDFG 

to continually refine the existing INRMP 

as part of the Sikes Act’s INRMP review 

process. Based on the above 

considerations, and consistent with the 

direction provided in section 

4(a)(3)(B)(i) of the Act, this installation 

is exempt from this critical habitat 

designation. 

Application of Section 4(b)(2) of the Act 

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

the Secretary must designate and revise 

critical habitat on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the Congressional Record is clear that 

the Secretary has broad discretion 

regarding which factor(s) to use and 

how much weight to give to any factor. 

Under section 4(b)(2) of the Act, in 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If based on this 

analysis, we make this determination, 

then we can exclude the area only if 

such exclusion would not result in the 

extinction of the species. In the 

following sections, we address a number 

of general issues that are relevant to the 

exclusions we considered. 

In addition, we conducted a DEA of 

the impacts of the proposed revision to 

designated critical habitat and related 

factors (referred to here as the DEA). 

The DEA was made available for public 

review and comment from April 8, 

2004, to May 10, 2004 (69 FR 18516). 

Substantive comments and information 

received on the DEA are summarized 

above in the Public Comment section 

and have been incorporated into the 

final analysis, as appropriate. Based on 

public comment on the DEA, the 

proposed revision to critical habitat, and 

the information in this revised final 

designation of critical habitat and the 

final economic analysis, we have 

excluded areas from critical habitat 

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

of the Act. This is also addressed in our 

implementing regulations at 50 CFR 

424.19. 

Benefits of Designating Critical Habitat 

The process of designating critical 

habitat as described in the Act requires 

that the Service identify those lands on 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70679 

which are found the physical or 

biological features essential to the 

conservation of the species that may 

require special management 

considerations or protection, and those 

areas outside the geographical area 

occupied by the species at the time of 

listing that are essential to the 

conservation of the species. In 

identifying those lands, the Service 

must consider the recovery needs of the 

species, such that, on the basis of the 

best scientific and commercial data 

available at the time of designation, the 

habitat that is identified, if managed, 

could provide for the survival and 

recovery of the species. 

The identification of those areas that 

are essential for the conservation of the 

species and can, if managed, provide for 

the recovery of a species is beneficial. 

The process of proposing and finalizing 

a critical habitat rule provides the 

Service with the opportunity to 

determine the features or PCEs essential 

for conservation of the species within 

the geographical area occupied by the 

species at the time of listing, as well as 

to determine other areas essential to the 

conservation of the species. The 

designation process includes peer 

review and public comment on the 

identified features and areas. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified areas, 

as well as any other occupied habitat or 

suitable habitat that may not have been 

included in the Service’s determination 

of essential habitat. 

The consultation provisions under 

section 7(a) of the Act constitute the 

regulatory benefits of critical habitat. As 

discussed above, Federal agencies must 

consult with us on actions that may 

affect critical habitat and must avoid 

destroying or adversely modifying 

critical habitat. Federal agencies must 

also consult with us on actions that may 

affect a listed species and refrain from 

undertaking actions that are likely to 

jeopardize the continued existence of 

such species. The analysis of effects to 

critical habitat is a separate and 

different analysis from that of the effects 

to the species. Therefore, the difference 

in outcomes of these two analyses 

represents the regulatory benefit of 

critical habitat. For some species, and in 

some locations, the outcome of these 

analyses will be similar, because effects 

on habitat will often result in effects on 

the species. However, the regulatory 

standard is different: the jeopardy 

analysis looks at the action’s impact on 

survival and recovery of the species, 

while the adverse modification analysis 

looks at the action’s effects on the 

designated habitat’s contribution to the 

species’ conservation. This will, in 

many instances, lead to different results 

and different regulatory requirements. 

For 30 years prior to the Ninth 

Circuit’s decision in Gifford Pinchot, 

consistent with the 1986 regulations, we 

essentially combined the jeopardy 

standard with the standard for 

destruction or adverse modification of 

critical habitat when evaluating Federal 

actions that affected currently occupied 

critical habitat. However, the court of 

appeals ruled that the two standards are 

distinct and that adverse modification 

evaluations require consideration of 

impacts on species recovery. Thus, 

critical habitat designations may 

provide greater regulatory benefits to the 

recovery of a species than would listing 

alone. 

There are two limitations to the 

regulatory effect of critical habitat. First, 

a section 7(a)(2) consultation is required 

only where there is a Federal nexus (an 

action authorized, funded, or carried out 

by any Federal agency)—if there is no 

Federal nexus, the critical habitat 

designation of private lands itself does 

not restrict any actions that destroy or 

adversely modify critical habitat. 

Second, the designation only limits 

destruction or adverse modification. By 

its nature, the prohibition on adverse 

modification is designed to ensure that 

the conservation role and function of 

those areas that contain the physical 

and biological features essential to the 

conservation of the species or of 

unoccupied areas that are essential to 

the conservation of the species is not 

appreciably reduced. Critical habitat 

designation alone, however, does not 

require property owners to undertake 

specific steps toward recovery of the 

species. 

Once an agency determines that 

consultation under section 7(a)(2) of the 

Act is necessary, the process may 

conclude informally when we concur in 

writing that the proposed Federal action 

is not likely to adversely affect critical 

habitat. However, if we determine 

through informal consultation that 

adverse impacts are likely to occur, then 

we would initiate formal consultation, 

which would conclude when we issue 

a biological opinion on whether the 

proposed Federal action is likely to 

result in destruction or adverse 

modification of critical habitat. 

For critical habitat, a biological 

opinion that concludes in a 

determination of no destruction or 

adverse modification may contain 

discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not suggest the 

implementation of any reasonable and 

prudent alternative. We suggest 

reasonable and prudent alternatives to 

the proposed Federal action only when 

our biological opinion results in an 

adverse modification conclusion. 

As stated above, the designation of 

critical habitat does not require that any 

management or recovery actions take 

place on the lands included in the 

designation. Even in cases where 

consultation has been initiated under 

section 7(a)(2) of the Act, the end result 

of consultation is to avoid jeopardy to 

the species and/or adverse modification 

of its critical habitat, but not specifically 

to manage remaining lands or institute 

recovery actions on remaining lands. 

Conversely, voluntary conservation 

efforts implemented through 

management plans institute proactive 

actions over the lands they encompass 

and are put in place to remove or reduce 

known threats to a species or its habitat; 

therefore, implementing recovery 

actions. We believe that in many 

instances the benefit to a species and/ 

or its habitat realized through the 

designation of critical habitat is low 

when compared to the conservation 

benefit that can be achieved through 

voluntary conservation efforts or 

management plans. The conservation 

achieved through implementing HCPs 

or other habitat management plans can 

be greater than what we achieve through 

multiple site-by-site, project-by-project, 

section 7(a)(2) consultations involving 

consideration of critical habitat. 

Management plans may commit 

resources to implement long-term 

management and protection to 

particular habitat for at least one and 

possibly additional listed or sensitive 

species. Section 7(a)(2) consultations 

commit Federal agencies to preventing 

adverse modification of critical habitat 

caused by the particular project only, 

and not to providing conservation or 

long-term benefits to areas not affected 

by the proposed project. Thus, 

implementation of any HCP or 

management plan that considers 

enhancement or recovery as the 

management standard may often 

provide as much or more benefit than a 

consultation for critical habitat 

designation. 

Another benefit of including lands in 

critical habitat is that designation of 

critical habitat serves to educate 

landowners, State and local 

governments, and the public regarding 

the potential conservation value of an 

area. This helps focus and promote 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for the coastal 

California gnatcatcher. In general, 

critical habitat designation always has 

mstockstill on PROD1PC66 with RULES2

70680 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

educational benefits; however, in some 

cases, they may be redundant with other 

educational effects. For example, HCPs 

have significant public input and may 

largely duplicate the educational 

benefits of a critical habitat designation. 

Including lands in critical habitat also 

would inform State agencies and local 

governments about areas that could be 

conserved under State laws or local 

ordinances. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

cooperation of non-Federal landowners. 

More than 60 percent of the United 

States is privately owned (National 

Wilderness Institute 1995), and at least 

80 percent of endangered or threatened 

species occur either partially or solely 

on private lands (Crouse et al. 2002). 

Stein et al. (1995) found that only about 

12 percent of listed species were found 

almost exclusively on Federal lands (90 

to 100 percent of their known 

occurrences restricted to Federal lands) 

and that 50 percent of federally listed 

species are not known to occur on 

Federal lands at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998; 

Crouse et al. 2002; James 2002). 

Building partnerships and promoting 

voluntary cooperation of landowners are 

essential to our understanding the status 

of species on non-Federal lands, and 

necessary for us to implement recovery 

actions such as reintroducing listed 

species and restoring and protecting 

habitat. 

Many non-Federal landowners derive 

satisfaction from contributing to 

endangered species recovery. We 

promote these private-sector efforts 

through the Department of the Interior’s 

Cooperative Conservation philosophy. 

Conservation agreements with nonFederal landowners (HCPs, safe harbor 

agreements, other conservation 

agreements, easements, and State and 

local regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7 consultations. In the 

past decade, we have encouraged nonFederal landowners to enter into 

conservation agreements, based on the 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 

through regulatory methods (61 FR 

63854; December 2, 1996). 

Many private landowners, however, 

are wary of the possible consequences of 

attracting endangered species to their 

property. Mounting evidence suggests 

that some regulatory actions by the 

Federal Government, while wellintentioned and required by law, can 

(under certain circumstances) have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996; Bean 2002; 

Conner and Mathews 2002; James 2002; 

Koch 2002; Brook et al. 2003). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability. This 

perception results in anti-conservation 

incentives, because maintaining habitats 

that harbor endangered species 

represents a risk to future economic 

opportunities (Main et al. 1999; Brook et 

al. 2003). 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999; Bean 2002; Brook et 

al. 2003). The magnitude of this 

outcome is greatly amplified in 

situations where active management 

measures (such as reintroduction, fire 

management, control of invasive 

species) are necessary for species 

conservation (Bean 2002). We believe 

that the judicious use of excluding 

specific areas of non-federally owned 

lands from critical habitat designations 

can contribute to species recovery and 

provide a superior level of conservation 

than critical habitat alone. 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7(a)(2) of the 

Act, can sometimes be 

counterproductive to its intended 

purpose on non-Federal lands. Thus the 

benefits of excluding areas that are 

covered by effective partnerships or 

other voluntary conservation 

commitments can often be high. 

Benefits of Excluding Lands With HCPs 

or Other Approved Management Plans 

The benefits of excluding lands with 

HCPs or other approved long-term 

management plans from critical habitat 

designation include relieving 

landowners, communities, and counties 

of any additional regulatory burden that 

might be imposed by critical habitat. 

Many HCPs and other conservation 

plans take years to develop, and upon 

completion, are consistent with 

recovery objectives for listed species 

that are covered within the plan area. 

Many also provide conservation benefits 

to unlisted sensitive species. Imposing 

an additional regulatory review as a 

result of the designation of critical 

habitat may undermine conservation 

efforts and partnerships in many areas. 

Our experience in implementing the Act 

has found that designation of critical 

habitat within the boundaries of 

management plans that provide 

conservation measures for a species is a 

disincentive to many entities which are 

either currently developing such plans, 

or contemplating doing so in the future, 

because one of the incentives for 

undertaking conservation is greater ease 

of permitting where listed species will 

be affected. Addition of a new 

regulatory requirement would remove a 

significant incentive for undertaking the 

time and expense of management 

planning. In fact, designating critical 

habitat in areas covered by a pending 

HCP or conservation plan could result 

in the loss of some species’ benefits if 

participants abandon the planning 

process, in part because of the strength 

of the perceived additional regulatory 

compliance that such designation would 

entail. The time and cost of regulatory 

compliance for a critical habitat 

designation do not have to be quantified 

for them to be perceived as additional 

Federal regulatory burden sufficient to 

discourage continued participation in 

developing plans targeting listed 

species’ conservation. 

A related benefit of excluding lands 

within approved HCPs and management 

plans from critical habitat designation is 

the unhindered, continued ability it 

gives us to seek new partnerships with 

future plan participants, including 

States, counties, local jurisdictions, 

conservation organizations, and private 

landowners, which together can 

implement conservation actions that we 

would be unable to accomplish 

otherwise. Designating lands within 

approved management plan areas as 

critical habitat would likely have a 

negative effect on our ability to establish 

new partnerships to develop these 

plans, particularly plans that address 

landscape-level conservation of species 

and habitats. By excluding these lands, 

we preserve our current partnerships 

and encourage additional conservation 

actions in the future. 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70681 

Furthermore, both HCP and Natural 

Communities Conservation Plan 

(NCCP)-HCP applications require 

consultation, which would review the 

effects of all HCP-covered activities that 

might adversely impact the species 

under a jeopardy standard, including 

possibly significant habitat modification 

(see definition of ‘‘harm’’ at 50 CFR 

17.3), even without the critical habitat 

designation. In addition, all other 

Federal actions that may affect the listed 

species would still require consultation 

under section 7(a)(2) of the Act, and we 

would review these actions for possibly 

significant habitat modification in 

accordance with the definition of harm 

referenced above. 

The information provided in the 

previous section applies to all the 

following discussions of benefits of 

inclusion or exclusion of critical habitat. 

Areas Excluded Under Section 4(b)(2) 

of the Act 

In the April 22, 2003, proposed rule, 

we considered, but did not propose as 

critical habitat under section 4(b)(2) of 

the Act, lands covered by the City of 

San Diego subarea plan under the MSCP 

and the County of San Diego subarea 

plan under the MSCP (collectively 

referred to as lands in the San Diego 

MSCP in the 2003 proposed rule). In 

this revised final rule, we reaffirm our 

exclusion of lands covered by the 

County of San Diego subarea plan under 

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

Act. We have also excluded lands from 

this revised final designation under 

section 4(b)(2) that are covered by the 

Southern Subregion HCP, a recently 

completed HCP in Orange County. 

However, we have not excluded lands 

covered by the City of San Diego 

subarea plan under the MSCP (see 

Summary of Changes From Previously 

Designated Critical Habitat and 2003 

Proposed Rule section above for a 

detailed discussion). The conservation 

value of the excluded County of San 

Diego and southern Orange County 

lands for San Diego fairy shrimp has 

been addressed by the respective habitat 

conservation plans covering these lands. 

A detailed analysis of our exclusion of 

these lands under section 4(b)(2) of the 

Act is provided in the paragraphs that 

follow under the section heading, 

Relationship of Critical Habitat to 

Habitat Conservation Plan Lands—

Exclusions Under Section 4(b)(2) of the 

Act. 

Additionally, we excluded, under 

section 4(b)(2) of the Act, essential 

habitat in the following areas: (1) The 

Irvine Ranch in Orange County; (2) 

Fairview Park in the City of Costa Mesa; 

and (3) Department of Homeland 

Security lands at Arnie’s Point in San 

Diego. The conservation value of these 

lands for San Diego fairy shrimp has 

been addressed by existing protective 

actions and exclusion of these lands 

under the provisions of section 4(b)(2) is 

appropriate. We are excluding areas (1) 

through (3) because we believe that 

either their value for conservation will 

be preserved for the foreseeable future 

by existing protective actions, or they 

are appropriate for exclusion under the 

‘‘other relevant factor’’ provisions of 

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

A detailed analysis of our exclusion of 

these lands under section 4(b)(2) of the 

Act is provided in the paragraphs that 

follow. 

Habitat Conservation Plan Lands—

Exclusions Under Section 4(b)(2) of the 

Act 

In reviewing approved HCPs for 

potential exclusion under section 4(b)(2) 

we consider, in addition to the general 

partnership relationships identified 

above, whether the plan provides for 

protection and appropriate 

management, if necessary, of essential 

habitat within the plan area and 

incorporates conservation strategies and 

measures consistent with currently 

accepted principles of conservation 

biology. 

Orange County Southern Subregion 

Habitat Conservation Plan (Southern 

Subregion HCP) 

The Southern Subregion HCP was 

developed in support of applications for 

incidental take permits for several 

covered species, including the San 

Diego fairy shrimp, by Orange County, 

Rancho Mission Viejo, and the Santa 

Margarita Water District in connection 

with proposed residential development 

and related actions in southern Orange 

County. The Service issued permits 

based on the plan on January 10, 2007. 

At this time an NCCP permit has not 

been granted for this plan. 

The Southern Subregion HCP action 

area encompasses 86,076 ac (34,834 ha) 

(Service 2007, p. 24) and provides for 

the conservation of covered species, 

including the San Diego fairy shrimp, 

through the establishment of an 

approximately 30,426 ac (12,313 ha) 

habitat reserve and 4,456 ac (1,803 ha) 

of supplemental open space areas 

(Service 2007, p. 19). Subunits 1D and 

1E fall within the boundaries of the 

habitat reserve of this HCP. 

Implementation of the covered 

development activities under the 

Southern Subregion HCP will not 

permanently impact any areas that we 

have determined contain the features 

essential to the conservation of the San 

Diego fairy shrimp (Service 2007, p. 

142). Critical habitat subunits 1D and 

1E, which encompass the vernal pool 

basins and associated vernal pool 

watersheds on Chiquita Ridge and Radio 

Tower Road, will be conserved and 

managed within the habitat reserve 

(Service 2007, p. 142). The adaptive 

management program for the San Diego 

fairy shrimp incorporated into this HCP, 

includes regular monitoring and 

necessary management, and will 

address potential sources of habitat 

degradation to ensure that all existing 

pools within subunits 1D and 1E are 

managed in a way that will maintain the 

ecological distribution and genetic 

variability of this species on a broad 

geographic scale (Service 2007, p. 142). 

The underlying hydrogeomorphic 

processes that support these vernal 

pools will be preserved through the 

protection of the vernal pool watersheds 

(PCE 2) from any development activities 

(Service 2007, p. 10). 

The Southern Subregion HCP benefits 

the PCEs essential to the conservation of 

the San Diego fairy shrimp through the 

implementation of the following 

conservation measures: conservation of 

vernal pools within the habitat reserve 

(PCE 1); minimizing impacts to vernal 

pools from development; maintaining 

water quality/quantity (PCE 2 and PCE 

3); controlling non-native invasive 

species (PCE 1 and PCE 2); managing 

livestock grazing (PCE 1 and PCE 2); and 

minimizing human access and 

disturbance (PCE 1, PCE 2, and PCE 3). 

Specifically, any development must be 

located at least 1000 ft (305 m) away 

from the vernal pools and built at a 

lower elevation than the vernal pools to 

avoid hydrological alterations (PCE 1 

and PCE 2) (Service 2007, p. 143). Water 

quality monitoring will be conducted 

throughout the life of the permit at 

occupied vernal pools near 

development (PCE 2) (Service 2007, p. 

143). Management tools will be 

developed specifically for controlling 

nonnative plant species in the 

watersheds of the Chiquita Ridge and 

Radio Tower Road vernal pools, so that 

nonnative plants do not alter the 

ponding depth or duration of the vernal 

pools by directly growing in the vernal 

pool basin or by indirectly diverting 

water from the vernal pool by growing 

in the vernal pool watershed (PCE 1 and 

PCE 2) (Service 2007, p. 143). 

Furthermore, livestock grazing in vernal 

pool areas will be monitored and can be 

managed by implementing seasonal 

exclusion of cattle through the 

placement of temporary fencing around 

vernal pools, which will ensure that 

cattle do not impact the vernal pool 

basin by compacting the soil or greatly 

mstockstill on PROD1PC66 with RULES2

70682 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

alter the water quality in the vernal pool 

while it is filled with water (PCE 1) 

(Service 2007, p. 143). Exclusionary 

fencing has already been placed around 

Chiquita Ridge vernal pools, and public 

access to the habitat reserve will be 

limited protecting the ponding duration 

(PCE 1), the hydrology (PCE 2), and the 

underlying claypan or hardpan soil 

layer (PCE 3) (Service 2007, p. 144). 

Properly timed prescribed burns can 

effectively control nonnative species, 

thereby, protecting the ability of the 

vernal pools to hold water for the 

appropriate duration (PCE 1). Prescribed 

burns will include any necessary impact 

avoidance minimization measures to 

ensure that the populations of San Diego 

fairy shrimp are conserved (Service 

2007, p. 144). 

In the 1997 final rule listing this 

species as endangered (62 FR 4925, 

February 3, 1997), we identified habitat 

destruction and fragmentation from 

urban development and agricultural 

conversion, alterations of vernal pool 

hydrology, off-road vehicle activity, and 

livestock grazing as primary threats to 

the species. As described above, the 

Southern Subregion HCP provides 

protection and appropriate management 

for the San Diego fairy shrimp, its 

habitat, and its PCEs through 

implementation of conservation 

strategies that are consistent with 

generally accepted principles of 

conservation biology. The Southern 

Subregion HCP preserves habitat that 

supports identified core populations of 

this species and therefore provides for 

recovery. 

Benefits of Exclusion Outweigh Benefits 

of Inclusion 

As discussed in the Benefits of 

Designating Critical Habitat section, we 

believe that the regulatory benefit of 

critical habitat is low when essential 

habitat is protected under an HCP or 

management plan such as the Southern 

Subregion HCP. The Southern 

Subregion HCP addresses conservation 

issues from a coordinated, integrated 

perspective rather than a piecemeal 

project-by-project approach and will 

achieve more San Diego fairy shrimp 

conservation than we would achieve 

through multiple site-by-site, project-byproject, section 7 consultations 

involving consideration of critical 

habitat. This regional HCP provides for 

the proactive monitoring and 

management of conserved lands (as 

previously described), which will 

remove or reduce known threats to the 

San Diego fairy shrimp or its habitat. 

Conservation and management of San 

Diego fairy shrimp habitat is essential to 

survival and recovery of this species. 

Such conservation needs are typically 

not addressed through the application of 

the statutory prohibition on adverse 

modification or destruction of critical 

habitat. The Southern Subregion HCP 

provides as much or more benefit than 

a consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

Furthermore educational benefits that 

may be derived from a critical habitat 

designation are low and largely 

redundant to the educational benefits 

achieved through significant public, 

State, and local government input 

during the development and ongoing 

implementation of this HCP. We have 

developed close partnerships with 

Orange County, Rancho Mission Viejo, 

and the Santa Margarita Water District 

through the development of the 

Southern Subregion HCP, a plan that 

incorporates appropriate protections 

and management for vernal pool habitat 

areas, and their constituent PCEs, 

essential for the conservation of this 

species. Those protections are 

consistent with statutory mandates 

under section 7 of the Act to avoid 

adverse modification or destruction of 

critical habitat, and go beyond that 

prohibition by including active 

management and protection of essential 

habitat areas. By excluding these lands 

from designation, we are eliminating an 

essentially redundant layer of regulatory 

review for projects covered by the HCP 

and helping to preserve our ongoing 

partnerships with the permittees and to 

encourage new partnerships with other 

landowners and jurisdictions. Those 

partnerships, and the landscape level, 

multiple-species conservation planning 

efforts they promote, are critical for the 

conservation of the San Diego fairy 

shrimp. 

We have reviewed and evaluated the 

exclusion of approximately 140 ac (57 

ha) of lands within the Southern 

Subregion HCP area from the 

designation of final critical habitat. We 

have determined that the regulatory 

benefit of designating lands in subunits 

1D and 1E is low because essential San 

Diego fairy shrimp habitat within the 

plan area is assured of conservation and 

management under the HCP. The 

educational and recovery benefits of 

critical habitat designation are also 

minor and have largely been achieved 

through development and public review 

of the HCP. The minor benefits of 

critical habitat designation are 

outweighed by the significant 

partnership benefits summarized above 

that will result from exclusion of the 

lands from the final rule. As discussed 

above, the Southern Subregion HCP will 

provide for significant preservation and 

management of habitat for the San Diego 

fairy shrimp and will help reach the 

recovery goals for this species. 

Exclusion Will Not Result in Extinction 

of the Species 

We do not believe that the exclusion 

of 140 ac (57 ha) from the final 

designation of critical habitat for the 

San Diego fairy shrimp will result in the 

extinction of the species because the 

Southern Subregion HCP provides for 

the protection and management in 

perpetuity of essential habitat, including 

its PCEs, for the San Diego fairy shrimp 

within subunits 1D and 1E. In addition, 

because the 140 ac (57 ha) we have 

excluded from critical habitat are 

occupied by San Diego fairy shrimp, 

future consultations under section 7 of 

the Act that involve these lands will 

occur even in the absence of their 

designation as critical habitat. 

Application of jeopardy standard of 

section 7 of the Act provides assurances 

that the species will not go extinct. 

The San Diego County Multiple Species 

Conservation Program (MSCP) 

In southwestern San Diego County, 

the MSCP planning area encompasses 

more than 582,000 ac (236,000 ha) in 

the southwestern portion of the county 

and includes the County of San Diego, 

City of San Diego, 10 other city 

jurisdictions, and several independent 

special districts. Under the broad 

umbrella of the MSCP, each 

participating jurisdiction prepares a 

subarea plan that complements the goals 

of the MSCP. We consult under section 

7 of the Act on each subarea plan and 

associated permit to ensure the issuance 

of the associated incidental take permits 

under section 10 of the Act are not 

likely to jeopardize or adversely modify 

or destroy the designated critical habitat 

of any covered species. We also review 

the subarea plans under section 10 of 

the Act to ensure they meet the criteria 

for issuance of an incidental take permit 

and are consistent with the terms and 

goals of the MSCP. 

The MSCP provides for the assembly 

and establishment of approximately 

171,000 ac (69,200 ha) of preserve areas 

to provide conservation benefits for 85 

federally listed and sensitive species, 

including the San Diego fairy shrimp, 

over the permit term. The MSCP 

provides for avoidance of impacts to 

vernal pool habitat for the San Diego 

fairy shrimp within and outside of 

existing and targeted reserve areas. In 

addition, the incidental take permits 

issued under this plan do not allow for 

the take of San Diego fairy shrimp in 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70683 

natural vernal pool habitat. The 

individual subarea plans also commit 

each jurisdiction to monitor and 

adaptively manage vernal pool species 

and their associated habitat. 

City of San Diego and County of San 

Diego Subarea plans Under the MSCP 

The objectives of the City and the 

County’s subarea plans applicable to the 

San Diego fairy shrimp and its essential 

vernal pool habitat are to: (1) Implement 

a no-net-loss-of-wetlands standard to 

satisfy State and Federal wetland goals 

and policies; (2) include measures to 

maximize habitat diversity within 

conserved habitat areas, including 

conservation of unique habitats and 

habitat features; (3) conserve spatially 

representative examples of habitat types 

ranked as having high and very high 

biological value by the MSCP; (4) create 

significant blocks of habitat to reduce 

edge effects and maximize the ratio of 

surface area to the perimeter of 

conserved habitats; (5) provide 

incentives for development in the least 

sensitive habitat areas; (6) provide for 

the conservation of key regional 

populations of the covered species, and 

representation of sensitive habitats and 

their geographic subassociations in 

biologically functioning units; and (7) 

conserve large interconnected blocks of 

habitat that contribute to the 

preservation of wide-ranging species. 

These measures are intended to 

conserve the San Diego fairy shrimp and 

its habitat by protecting vernal pool 

basins (PCE 1) and the associated vernal 

pool watershed necessary for the vernal 

pool ecosystem to function (PCE 2) and 

connections between vernal pool habitat 

and other open-space preserve areas. 

To protect vernal pool habitat, the 

City and County of San Diego subarea 

plans erequire that: (1) Development be 

configured in a manner that minimizes 

impacts to sensitive biological resources 

(Service 1997, p. 10; Service 1998b, p. 

7), in order to reduce any impact to San 

Diego fairy shrimp habitat through 

protection of the vernal pool basin (PCE 

1) and associated vernal pool soils (PCE 

3); (2) unavoidable impacts to vernal 

pools associated with reasonable use or 

essential public facilities be minimized 

and mitigated to achieve no-net-loss of 

function and value; and (3) a sufficient 

amount of watershed be avoided as 

necessary for the continuing viability of 

vernal pools (PCE 2) (Service 1997, pp. 

43–44; Service 1998b, p. 67). 

In the 1997 final rule listing this 

species as endangered (62 FR 4925, 

February 3, 1997), we identified habitat 

destruction and fragmentation from 

urban development and agricultural 

conversion, alterations of vernal pool 

hydrology, off-road vehicle activity, and 

livestock grazing as primary threats to 

the species. As described above, these 

subarea plans under the MSCP are 

designed to preserve and manage 

essential San Diego fairy shrimp habitat 

and its PCEs within each subarea. 

The incidental take permits issued to 

the City and County of San Diego under 

the MSCP limit take of San Diego fairy 

shrimp to areas outside of jurisdictional 

waters of the United States, as that term 

was understood under the Clean Water 

Act at the time these permits were 

issued and prior the 2001 U.S. Supreme 

Court’s SWANCC decision. The subarea 

plans and permits anticipated that 

individual consultations under section 7 

of the Act with the ACOE would occur 

for all individual projects impacting 

vernal pool habitat of the San Diego 

fairy shrimp pursuant to section 404 of 

the Clean Water Act. In addition, we 

assumed these actions would be 

required to comply with the 

Environmental Protection Agency Clean 

Water Act, 404(b)(1) guidelines and the 

Federal policy of ‘‘no net loss of 

wetland function and values.’’ In light 

of the intervening SWANCC decision, 

these individual reviews may not occur. 

Further, the U.S. District Court for the 

Southern District of California on 

October 13, 2006, (Southwest Center for 

Biological Diversity v. Bartel, CV 98–

2234) (referred to here as the Bartel 

decision) concluded, in part, that the 

approach adopted in the City of San 

Diego’s MSCP subarea plan to evaluate 

individual project impacts on vernal 

pool species, including the San Diego 

fairy shrimp, had been effectively 

eliminated by the SWANCC decision 

and that the remaining protections 

contained in the City’s subarea plan do 

not adequately protect the San Diego 

fairy shrimp and the other vernal pool 

species. The court enjoined the City of 

San Diego’s incidental take permit with 

respect to ongoing and future land use 

activities that affect vernal pool habitat. 

The district court ruling does not apply 

to other HCPs, including other MSCP 

subarea plans, and does not address the 

adequacy of these other plans to protect 

the San Diego fairy shrimp. 

In light of the SWANCC and Bartel 

decisions, we have reanalyzed lands 

covered by the City and County subarea 

plans to determine whether lands 

essential to the conservation of the San 

Diego fairy shrimp are assured of 

conservation and management 

consistent with the original objectives 

and goals of the MSCP and subarea 

plans. 

Approximately 1,805 ac (730 ha) of 

habitat essential to the conservation of 

the San Diego fairy shrimp are within 

the boundaries of the City of San Diego’s 

subarea plan. Of these 1,805 ac (730 ha), 

approximately 420 ac (170 ha) have 

been dedicated to the City of San 

Diego’s preserve and 1,385 ac (561 ha) 

have yet to be fully conserved (HabiTrak 

database 2007). In light of the SWANCC 

and Bartel decisions, the conservation of 

essential habitat in the City of San Diego 

is uncertain. Conversely, approximately 

224 ac (90 ha) of habitat essential to the 

conservation of the San Diego fairy 

shrimp are within the boundaries of the 

County of San Diego’s subarea plan. Of 

these 224 ac (90 ha), approximately 157 

ac (63 ha) have been dedicated to the 

County of San Diego’s preserve and 67 

ac (27 ha) have yet to be fully conserved 

(HabiTrak database 2007); however, as 

we describe below, these lands are 

reasonably assured of conservation. 

Because we are not assured of the 

conservation of most of the habitat 

essential to the conservation of the San 

Diego fairy shrimp within the City of 

San Diego’s subarea plan, we have 

determined that essential habitat 

covered by this subarea plan should be 

designated as critical habitat. 

While the potential regulatory, 

educational and recovery benefits of 

designating essential habitat within the 

City’s subarea plan are low for the 

reasons stated in Benefits of Designating 

Critical Habitat and Conservation 

Partnerships on Non-Federal Lands 

sections above, and in particular, 

because of the uncertainty regarding a 

future Federal nexus for section 7 

consultation involving such lands, the 

partnership benefits of excluding 

essential habitat within the subarea plan 

area are also low. As discussed above 

under Benefits of Excluding Lands 

within HCPs and Other Approved 

Management Plans, a primary reason for 

excluding lands covered by HCPs from 

designation is to preserve our 

partnerships with local jurisdictions 

and private landowners in order to 

achieve a higher level of protection and 

management for listed species than 

would otherwise occur through 

regulation under Section 7 of the Act. 

However, given the concerns raised by 

the Bartel decision about the adequacy 

of the City’s plan to protect vernal pool 

habitat and uncertainty about future of 

the plan with regard to the San Diego 

fairy shrimp, it is not clear that the 

conservation measures provided under 

the City’s current plan will benefit the 

San Diego fairy shrimp more than the 

designation of essential habitat within 

the City. Because we do not believe that 

the benefits of excluding essential 

habitat covered by the City’s subarea 

plan outweigh the benefits of including 

mstockstill on PROD1PC66 with RULES2

70684 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

such lands as critical habitat, we have 

included the lands in the final 

designation. We remain committed to 

working with the City of San Diego and 

other stakeholders to strengthen the 

protections for the San Diego fairy 

shrimp and its essential habitat 

provided in the City’s subarea plan. 

In contrast to lands covered by the 

City of San Diego’s subarea plan, all of 

the lands slated for conservation of the 

San Diego fairy shrimp under the 

County of San Diego’s subarea plan have 

already been permanently conserved 

and managed or are assured of 

conservation and management through 

other specific conservation plans. Of the 

224 ac (90 ha) of habitat essential to the 

conservation of the San Diego fairy 

shrimp occurring within the boundary 

of the County of San Diego’s subarea 

plan, 157 ac (63 ha) of land have already 

been dedicated to the County of San 

Diego preserve. An additional 62 ac (25 

ha) of land will be conserved under the 

Otay Ranch Phase 2 Resource 

Management Plan (Otay Ranch 2002) 

(Otay Ranch Plan)T). The remaining 5 

ac (2 ha) of essential vernal pool habitat 

is targeted for conservation as part of the 

County’s future proposed amendment to 

the County’s MSCP subarea plan to add 

the Quino checkerspot butterfly 

(Euphydryas editha quino) as a covered 

species. In sum, all essential vernal pool 

habitat identified for conservation under 

the County’s subarea plan has been 

conserved and managed or is reasonably 

assured of conservation and 

management. 

The Otay Ranch Plan is an approved 

General Development Plan that was 

developed to conserve sensitive 

biological resources on Otay Ranch 

while allowing compatible residential 

and commercial development. This plan 

includes land in the City of San Diego, 

the City of Chula Vista, and the County 

of San Diego. The areas covered under 

this plan in the County of San Diego, 

which will be conserved, have been 

added to the County of San Diego’s 

subarea plan preserve, thus 

conservation of these areas is assured. 

The lands within in the Otay Ranch 

Plan are essential to the long-term 

conservation of several species in 

southern San Diego County, and include 

80 ac (32 ha) of essential habitat for the 

San Diego fairy shrimp in the County of 

San Diego. While 62 ac (25 ha) of these 

80 ac (32 ha) of essential habitat have 

not been dedicated to the MSCP 

preserve and are not yet managed under 

the Otay Ranch Plan, ongoing measures 

are in place to protect all San Diego 

fairy shrimp habitat and conserve the 

PCEs on those lands. All 80 ac (32 ha) 

of essential habitat is entirely within the 

area zoned by the County of San Diego 

as open space, which places restrictions 

on any development in this area. 

Furthermore, the essential habitat is 

fenced and has locked gates at access 

points, excluding any unauthorized offroad vehicle activity from the area. 

Other areas within the Otay Ranch have 

been conserved as expected and we 

believe a reasonable certainty exists that 

these 62 ac (25 ha) will be conserved as 

planned. 

The Plan (Otay Ranch 2002, pp. 52–

53, 112–130, 141–145) describes the 

following monitoring and management 

activities, which will benefit San Diego 

fairy shrimp within the Otay Ranch 

Preserve: (1) Focused surveys and 

population estimates specifically for 

San Diego fairy shrimp (pp. 141, 145); 

(2) management of vernal pool habitat as 

discussed in the ‘‘Vernal Pool 

Preservation and Management Plan’’

(pp. 112–130); (3) inhibition of 

additional degradation (through fencing, 

elimination of cattle grazing, and access 

control) (p. 121); (4) establishment of 

protocols for research and education (p. 

121); (5) development of specific 

monitoring strategies for determining 

changes in flora and fauna of the pools 

(p. 121); (6) general enhancement 

activities (p. 121); and (7) removal and 

control of exotic species including the 

control of nonnative plants (p. 53). 

The conservation or reasonably 

assured future conservation of the 

habitat that contains the features 

essential to the conservation of the San 

Diego fairy shrimp within the 

boundaries of the County of San Diego’s 

subarea plan ensures that the San Diego 

fairy shrimp will be adequately 

protected and conserved under the 

County’s subarea plan. Implementation 

of the County’s subarea plan will 

adequately manage (as previously 

described) habitat and features essential 

to the conservation of the San Diego 

fairy shrimp. Therefore, we are 

reaffirming our exclusion of 224 ac (90 

ha) of land covered by the County of 

San Diego subarea plan under the MSCP 

under section 4(b)(2) of the Act. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

As discussed under Benefits of 

Designating Critical Habitat above, we 

believe that the regulatory benefit of 

critical habitat is low when essential 

habitat is protected under an HCP or 

similar management plan such as the 

County of San Diego’s MSCP Subarea 

Plan and the Otay Ranch Plan. The 

County’s subarea plan and the Otay 

Ranch Plan address conservation issues 

from a coordinated, integrated 

perspective rather than a piece meal 

project-by-project approach and will 

achieve more San Diego fairy shrimp 

conservation than we would achieve 

through multiple site-by-site, project-byproject, section 7 consultations 

involving consideration of critical 

habitat. The subarea plan and Otay 

Ranch Plan provide for the proactive 

monitoring and management of 

conserved lands (as previously 

described), which will remove or reduce 

known threats to the San Diego fairy 

shrimp and its habitat. Conservation 

and management of San Diego fairy 

shrimp habitat is essential to survival 

and recovery of this species. Such 

conservation needs are often not 

addressed through the application of the 

statutory prohibition on adverse 

modification or destruction of critical 

habitat. The County’s MSCP subarea 

plan and the Otay Ranch Plan provide 

as much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. Further, 

the educational benefits that may be 

derived from a critical habitat 

designation are low and largely 

redundant to the educational benefits 

achieved through significant public, 

State, and local government input 

during the development of the County’s 

subarea plan. The Otay Ranch Plan was 

also reviewed by the public and sections 

of the plan have been adopted by the 

San Diego County Board of Supervisors. 

We have developed close partnerships 

with the County, CDFG and private 

landowners and other stakeholders 

through the development of the 

County’s subarea plan and the Otay 

Ranch Plan, plans that incorporate 

appropriate protections and 

management for vernal pool habitat 

areas, and their constituent PCEs, 

essential for the conservation of the San 

Diego fairy shrimp. Those protections 

are consistent with statutory mandates 

under section 7 of the Act to avoid 

adverse modification or destruction of 

critical habitat, and go beyond that 

prohibition by including active 

management and protection of essential 

habitat areas. By excluding these lands 

from designation, we are eliminating an 

essentially redundant layer of regulatory 

review for projects covered by the 

County’s subarea plan and helping to 

preserve our ongoing partnerships with 

the County and other stakeholders and 

to encourage new partnerships with 

other landowners and jurisdictions. 

Those partnerships, and the landscape 

level, multiple-species conservation 

planning efforts they promote, are 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70685 

critical for the conservation of the San 

Diego fairy shrimp. 

We have reviewed and evaluated the 

exclusion of approximately 224 ac (90 

ha) of lands within the County of San 

Diego’s MSCP subarea plan area from 

the designation of final critical habitat. 

We have determined that the regulatory 

benefit of designating those lands in 

subunits 5A, 5B and 5H that are covered 

by the County’s subarea plan is low 

because the essential San Diego fairy 

shrimp habitat within the plan area is 

already protected and managed or 

assured of protection and management 

under the subarea plan and Otay Ranch 

Plan. The educational and recovery 

benefits of critical habitat designation 

are also minor and have largely been 

achieved through development and 

public review of the subarea plan. We 

conclude that the minor benefits of 

critical habitat designation are 

outweighed by the significant 

partnership benefits summarized above 

that will result from exclusion of the 

lands from the final rule. 

We, therefore, reaffirm the exclusion 

of essential habitat covered by the 

County of San Diego subarea plan under 

the MSCP under 4(b)(2) of the Act. As 

discussed above, the County’s subarea 

plan under the MSCP will provide for 

significant preservation and 

management of habitat features essential 

to the conservation of the San Diego 

fairy shrimp and will help reach the 

recovery goals for this species. 

Exclusion Will Not Result in Extinction 

of the Species 

We do not believe that the exclusion 

of 224 ac (90 ha) from the final 

designation of critical habitat for the 

San Diego fairy shrimp will result in the 

extinction of the species because the 

County of San Diego subarea plan under 

the MSCP provides for the protection 

and management in perpetuity of 

essential habitat, including its PCEs, for 

the San Diego fairy shrimp within 

subunits 5A, 5B, and 5H, as discussed 

above. In addition, because the 224 ac 

(90 ha) we have excluded from critical 

habitat are occupied by San Diego fairy 

shrimp, future consultations under 

section 7 of the Act that involve these 

lands will occur even in the absence of 

their designation as critical habitat. 

Application of jeopardy standard of 

section 7 of the Act provides assurances 

that the species will not go extinct. 

Management Plans—Exclusions Under 

Section 4(b)(2) of the Act 

The Irvine Ranch in Orange County 

In the 2003 proposed rule to revise 

critical habitat, approximately 25 ac (10 

ha) with The Irvine Ranch (previously 

identified as the North Ranch Planning 

Policy Area) were proposed for 

designation. In preparing this revised 

final designation, we reanalyzed our 

proposal to designate these lands as 

critical habitat and determined that the 

area has a very limited watershed and 

that only 4 ac (2 ha) of this area 

contained the PCEs essential to the 

conservation of the San Diego fairy 

shrimp. After further review of the 

conservation actions that are being 

implemented and additional measures 

being planned, we excluded these 4 ac 

(2 ha) from the revised final designation 

because the benefits of exclusion 

outweigh the benefits of including the 

lands in critical habitat. 

The Irvine Ranch supports one vernal 

pool containing San Diego fairy shrimp. 

In contrast to all other vernal pools 

where San Diego fairy shrimp are found, 

this particular pool occurs in a rock 

basin. This rock pool, discovered in 

2001, does not appear to have 

undergone any negative impacts. 

In 1992, the Irvine Company initiated 

a partnership with the Nature 

Conservancy to develop and implement 

a stewardship plan for 35,000 ac (14,164 

ha) of what is presently called The 

Irvine Ranch to address compatible 

public access, habitat management and 

restoration (TNC 2007). An additional 

11,000 ac (4,452 ha) was donated by the 

Irvine Company in 2001. In 2005, all 

50,000 ac (20,234 ha) of The Irvine 

Ranch were placed under the 

responsibility of the Irvine Ranch 

Conservancy, a non-profit organization 

that was created specifically by the 

Irvine Company to protect the lands 

within The Irvine Ranch (Irvine Ranch 

2007a), with a financial commitment of 

$50 million to help protect, restore and 

enhance the resources of these lands 

(Irvine Ranch 2007b). As noted above, 

the 4 ac (2 ha) of essential San Diego 

fairy shrimp habitat is included among 

the lands managed by the Irvine Ranch 

Conservancy. 

The mission of the Irvine Ranch 

Conservancy is to help protect, restore 

and enhance the natural resources of 

The Irvine Ranch in perpetuity and to 

encourage the creation of new and 

diverse opportunities for public 

enjoyment and education (IRC 2007a). 

The Conservancy’s stewardship 

responsibilities include (1) strategies for 

habitat protection, restoration and 

public access in a manner that ensures 

the long-term well-being of the native 

habitat and wildlife; (2) hands-on field 

work to maintain trails, restore habitat, 

and remove invasive weeds; (3) ongoing 

biological monitoring to assess the 

health of native plants and wildlife; and 

(4) recruitment, training, and use of 

volunteers to serve as naturalist-guides 

for public hikes, mountain-bike rides 

and horse rides, and to assist with other 

activities (IRC 2007b). The Irvine Ranch 

Conservancy is currently working on a 

conservation plan for the Irvine Ranch 

wildlands which will formalize their 

conservation vision, strategy, and 

approach for all the wildlands they 

directly manage, including the 4 ac (2 

ha) of essential San Diego fairy shrimp 

habitat (Olson 2007). 

Benefits of Exclusion Outweigh Benefits 

of Inclusion 

In 2003, when we proposed 

designating this vernal pool as critical 

habitat we had incomplete information 

about the extent to which the area 

would be managed for the conservation 

of the species. Since that time we have 

obtained additional information 

regarding the Irvine Ranch 

Conservancy’s management strategy for 

the Irvine Ranch including actions to 

conserve the San Diego fairy shrimp at 

the rock pool (Harmsworth and 

Associates 2007, p. 8; Olson 2007, p. 1). 

The lands are protected by a 

conservation easement and secured 

from public access, and their permanent 

management plan is fully funded by 

way of the endowment for the 

conservation of the Irvine Ranch 

discussed above. Specific conservation 

actions that benefit the San Diego fairy 

shrimp at this location include the 

exclusion of cattle from this area and 

the limitations placed on human access 

to this area. The sole focus of onsite 

management is to avoid any activity that 

would negatively impact the pool. Thus, 

the regulatory benefits of designating 

this area as critical habitat are minimal. 

The educational and recovery benefits 

of designation are also small and are 

largely addressed through the Irvine 

Ranch Conservancy’s ongoing 

environmental education programs to 

promote public understanding and 

appreciation of the natural resources on 

the Irvine Ranch, summarized above. 

By excluding these lands from critical 

habitat designation, we are eliminating 

an essentially redundant layer of 

regulatory review for conservation 

projects that may be undertaken to 

restore habitat surrounding the vernal 

pool (e.g., removal of non-native, 

invasive plants) and furthering our 

partnership with the Irvine Ranch 

Conservancy in preserving the whole of 

The Irvine Ranch for future generations. 

We have reviewed and evaluated the 

exclusion of 4 ac (2 ha) of lands within 

the Irvine Ranch from the designation of 

final critical habitat. We have 

determined that the regulatory benefit of 

mstockstill on PROD1PC66 with RULES2

70686 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

designating those lands in subunit 1A is 

low because the essential San Diego 

fairy shrimp habitat within the subunit 

is already permanently protected and 

assured of management by the Irvine 

Ranch Conservancy. The educational 

and recovery benefits of critical habitat 

designation are also minor and have 

largely been achieved through the Irvine 

Ranch Conservancy’s on-going 

environmental education programs for 

the Irvine Ranch. We conclude that the 

minor benefits of critical habitat 

designation are outweighed by the 

significant partnership benefits 

identified in this section and under 

Benefits of Excluding Lands within 

HCPs and Other Approved Management 

Plans that will result from exclusion of 

the lands from the final rule. 

Exclusion Will Not Result in Extinction 

of the Species 

We do not believe that the exclusion 

of the 4 ac (2 ha) of land within The 

Irvine Ranch from the revised final 

designation of critical habitat will result 

in the extinction of the San Diego fairy 

shrimp because management of The 

Irvine Ranch by the Irvine Ranch 

Conservancy provides protection of all 

the PCEs for the species within 

proposed subunit 1A. In addition, 

because the 4 ac (2 ha) we have 

excluded from critical habitat are 

occupied by San Diego fairy shrimp, 

future consultations under section 7 of 

the Act that involve these lands will 

occur even in the absence of their 

designation as critical habitat. 

Application of jeopardy standard of 

section 7 of the Act provides assurances 

that the species will not go extinct. 

Fairview Park Master Plan in the City 

of Costa Mesa 

Approximately 62 ac (25 ha) of 

Fairview Park were designated as 

critical habitat in October 2000 (65 FR 

63438). In the 2003 proposed rule to 

revise critical habitat, we estimated that 

approximately 74 ac (30 ha) of the 208- 

ac (83-ha) Fairview Park contained 

features essential to the conservation of 

the species. After reanalyzing our 2003 

proposal for this subunit, we 

determined that, in fact, only 43 ac (17 

ha) of land within Fairview Park 

support the features essential to the 

conservation of the San Diego fairy 

shrimp. 

Based on our review of conservation 

actions being undertaken by the City of 

Costa Mesa to benefit the San Diego 

fairy shrimp and its essential habitat we 

excluded these lands from the revised 

final designation because the benefits of 

exclusion outweigh the benefits of 

including them in critical habitat. 

The 208-acre (83-ha) Fairview Park is 

adjacent to the Talbot Nature Preserve, 

part of the conserved open space in the 

Orange County Central-Coastal NCCP/ 

HCP. As described below the Master 

Plan for Fairview Park provides for 

habitat restoration and management 

consistent with and complementary to 

the Orange County Central-Coastal 

NCCP/HCP. Fairview Park supports 

seven vernal pool basins covering 

approximately 3 ac (1 ha), with the 

largest pool covering about 2 ac (1 ha). 

Of the seven identified pools in 

Fairview Park, three are known to be 

occupied by the San Diego fairy shrimp 

(City of Costa Mesa 2001, p. C–43). The 

vernal pools have been impacted to 

some extent by pedestrian traffic, 

bicycles, and mowing. Additionally, the 

largest vernal pool was previously 

impacted by the deposition of fill 

material, including asphalt and concrete 

(City of Costa Mesa 2001, pp. 7–14). 

The Master Plan for restoration of 

Fairview Park and its long-term 

management was developed in 1998 and 

revised in 2001. The Master Plan guides 

all natural habitat restoration actions as 

well as passive and active public uses. 

Actions in the Master Plan that benefit 

the San Diego fairy shrimp include, but 

are not limited to: (1) Development of a 

formalized trail system to avoid 

sensitive areas to the extent feasible; (2) 

installation of educational signage and 

observation platforms in the vernal pool 

restoration area; (3) installation of 

fencing to protect the vernal pools; and 

(4) cessation of mowing within the 

vernal pools or, if necessary, mowing 

only late in the season after annual forbs 

and grasses have set seed (City of Costa 

Mesa 2001, p. C–46). 

Implementation of the Master Plan, 

including the vernal pool restoration, 

has been funded since 1994 using a 

variety of sources, including $88,000 

from the Segerstrom Company (City of 

Costa Mesa 2003) and annual budget 

allocations from the City totaling 

approximately $250,000. In 2007, a 

grant for $250,000 was awarded by the 

California Department of Parks and 

Recreation with a match of $250,000 

from the City of Costa Mesa to 

implement a trail plan for Fairview 

Park. Actions to restore the vernal pools 

are planned and implemented by a 

qualified biologist holding a valid 

section 10(a)(1)(A) permit from the 

Service. 

Benefits of Exclusion Outweigh Benefits 

of Inclusion 

We have reviewed and evaluated the 

proposed designation of essential 

habitat in Fairview Park and have 

determined that the benefits of 

excluding critical habitat on 43 ac (17 

ha) of land in Fairview Park outweigh 

the benefits of designating these lands 

as critical habitat. 

Critical habitat was designated on 

these lands in October 2000 because of 

the importance of these vernal pools in 

the conservation of the San Diego fairy 

shrimp. At the time of the 2000 final 

critical habitat rule, implementation of 

the Master Plan for Fairview Park was 

in its early stages. Since that time, the 

City of Costa Mesa and management of 

Fairview Park have consistently 

demonstrated their commitment to fund 

and implement the Master Plan for the 

benefit of the San Diego fairy shrimp 

and other native species that inhabit the 

area, thus ensuring the PCEs identified 

as essential to the conservation of the 

San Diego fairy shrimp will be 

maintained over the long-term. Thus, 

the regulatory benefits of designating 

this area as critical habitat are minimal. 

The educational and recovery benefits 

of designation are also small and are 

largely addressed through the Fairview 

Park Master Plan’s inclusion of 

measures to promote public education 

and awareness of the park’s sensitive 

vernal pool habitat. 

By excluding these lands from critical 

habitat designation, we are eliminating 

an essentially redundant layer of 

regulatory review for conservation 

projects that may be undertaken to 

restore habitat surrounding the vernal 

pool habitat (e.g., removal of non-native, 

invasive plants) and furthering our 

partnership with the City of Costa Mesa 

and Fairview Park management to 

preserve and protect essential vernal 

pool habitat in the park. Excluding 

Fairview Park from the revised final 

designation sends a clear signal to the 

City of Costa Mesa that the Service 

actively recognizes and supports the 

City’s sustained commitment to restore 

and protect the vernal pools at the park. 

The Service expects to continue 

working in partnership with the City of 

Costa Mesa to implement the Master 

Plan and, potentially, to include these 

lands as part of the reserve system 

under the Central-Coastal NCCP/HCP. 

We have reviewed and evaluated the 

exclusion of 43 ac (17 ha) of lands 

within Fairview Park from the 

designation of final critical habitat. We 

have determined that the regulatory 

benefit of designating those lands in 

subunit 1B1B is low because the 

essential San Diego fairy shrimp habitat 

within this subunit is protected and 

assured of appropriate management 

under the Fairview Park Master Plan. 

The educational and recovery benefits 

of critical habitat designation are also 

minor and are largely met through the 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70687 

public education measures included in 

the Master Plan and the City’s on-going 

efforts to educate the public about the 

sensitive natural resources in Fairview 

Park. We conclude that the minor 

benefits of critical habitat designation 

are outweighed by the significant 

partnership benefits identified in this 

section and under Benefits of Excluding 

Lands within HCPs and Other Approved 

Management Plans that will result from 

exclusion of the lands from this this 

final rule. 

Exclusion Will Not Result in the 

Extinction of the Species 

We do not believe that the exclusion 

of 43 ac (17 ha) of land at Fairview Park 

from the revised final critical habitat 

designation will result in the extinction 

of the San Diego fairy shrimp because 

the Master Plan provides for active 

restoration of what have been degraded 

vernal pools, thereby, enhancing the 

PCEs for the species. In addition, 

because the 43 ac (17 ha) we have 

excluded from critical habitat are 

occupied by San Diego fairy shrimp, 

future consultations under section 7 of 

the Act that involve these lands will 

occur even in the absence of their 

designation as critical habitat. 

Application of jeopardy standard of 

section 7 of the Act provides assurances 

that the species will not go extinct. 

Department of Homeland Security 

(DHS) Lands (Arnie’s Point, San Diego 

County) 

In preparing this revised final 

designation, we revisited the status of 

lands owned by the Department of 

Homeland Security (DHS) (formerly 

known as Immigration and 

Naturalization Service (INS)) in 

subunits 5D and 5F. Within the 2003 

proposed subunits 5D and 5F, we 

removed 174 ac (71 ha) of habitat from 

this final designation because these 

lands no longer support the PCEs for the 

San Diego fairy shrimp. A portion of the 

land removed is owned by the DHS and 

is located along the U.S./Mexico border. 

As a result all DHS–owned land in 

subunit 5D was removed because it does 

not contain the PCEs; however, 29 ac 

(12 ha) remained in subunit 5F. We 

excluded the remaining DHS lands (29 

ac (12 ha)) in subunit 5F under section 

4(b)(2) of the Act as a result of national 

security considerations, as described 

below. 

Section 102 of the Illegal Immigration 

Reform and Immigrant Responsibility 

Act of 1996 (IIRIRA), Public Law 104–

208 (8 U.S.C. 1103 note 2000), was 

enacted as part of the Omnibus 

Consolidated Appropriations Act of 

1997, and addressed construction of the 

14-Mile Border Fence. Among the 

provisions of section 102 is the 

authority granted to the Attorney 

General of the United States (AG) to 

waive the provisions of the Act and of 

NEPA ‘‘to ensure the expeditious 

construction of barriers and roads 

***’’ (PL 104–208, 1996; Sec. 102 (c)). 

Although DHS was within its authority 

to request the AG grant a waiver from 

complying with the Act, it did consult 

with the Service on impacts associated 

with the proposed fence project, 

including the preparation of documents 

to fulfill its NEPA obligations. In our 

biological opinion for the project we 

described vernal pool habitat within 

subunit 5F as ‘‘poor’’ (Service, 2002, p. 

14). A small amount of habitat for the 

San Diego fairy shrimp was lost as part 

of the border fence construction; 

however, the impacts were offset with 

the restoration of the vernal pools on 

Arnie’s Point (Service 2002; Service 

2003). Conservation measures 

undertaken by the ACOE and INS 

included the installation of a chain link 

fence along the inside edge of an 

existing perimeter road to prevent 

vehicles from driving into the 

restoration area; preparation of a 

restoration plan for the vernal pools; 

and the restoration and management of 

the vernal pools on Arnie’s Point. The 

INS committed to preserve in perpetuity 

INS-owned (now DHS-owned) land 

outside the project footprint within 

Arnie’s Point, Spring Canyon, and 

Wruck Canyon through a transfer of 

deed and title to a cooperating entity to 

the MSCP (Service 2002; p. 7). 

In 2002, the Homeland Security Act 

(AHSA) transferred the authority to take 

such actions as necessary to construct 

the 14-Mile Border Fence to the 

Secretary of the DHS. In 2005, the 

Secretary of the DHS, under the 

authority granted under the HSA and 

section 102 of the IIRIRA as amended by 

the REAL ID Act of 2005 (P.L. 109–13), 

made a determination to waive all 

‘‘federal, state, or other laws, regulations 

or legal requirements of, deriving from, 

or related to the subject of, * * * The 

National Environmental Policy Act, the 

Endangered Species Act * * *.’’ (70 FR 

55623). In light of this determination 

(effective on September 22, 2005), there 

is no longer a requirement for DHS to 

consult with the Service on actions that 

may impact federally listed species, 

including the San Diego fairy shrimp or 

their designated critical habitat, if those 

actions are related to the construction or 

maintenance or operations of the 14- 

Mile Border Fence. 

Benefits of Exclusion Outweigh Benefits 

of Inclusion 

We believe that the regulatory benefit 

of critical habitat is non-existent in this 

case. Although designating critical 

habitat in subunit 5F would reflect our 

determination that these lands are 

essential to the conservation of the San 

Diego fairy shrimp, there is no 

regulatory requirement for the DHS or 

any other Federal agency directly 

involved with the construction and 

maintenance of the 14-Mile Border 

Fence project to consult with us 

regarding impacts to the species or its 

designated critical habitat. 

Furthermore, any educational or 

recovery benefits from designation of 

lands at Arnie’s point would be minor. 

Both the DHS and the ACOE are already 

aware of the presence of the San Diego 

fairy shrimp and its essential habitat in 

these areas as they have previously 

consulted with us on impacts to the 

species arising from construction of the 

project. 

In contrast to the lack of regulatory, 

educational and recovery benefits of 

designation, exclusion of these lands 

from critical habitat will further the 

national security purposes of the IIRIRA 

and the 14-Mile Border Fence Project. 

Through enactment of the IIRIRA and 

HSA, Congress expressed their intent 

that construction of the 14-Mile Border 

Fence Project should not be delayed or 

impeded by the statutory requirements 

of the Endangered Species Act by 

granting the Secretary of the Department 

of Homeland Security the authority to 

waive those requirements. We conclude 

that national security benefits of 

excluding 29 ac (12 ha) of land in 

subunit 5F from critical habitat 

outweigh any potential regulatory, 

educational or recovery benefits that 

would accrue from designation. 

Exclusion Will Not Result in Extinction 

of the Species 

The impacts associated with the 14- 

Mile Border Fence project on the San 

Diego fairy shrimp were analyzed and 

we found that the conservation and 

restoration of the vernal pools at Arnie’s 

Point offset these impacts. The vernal 

pools at Arnie’s Point will now be 

managed for the long-term conservation 

of the San Diego fairy shrimp. 

Therefore, we do not believe that the 

exclusion of 29 ac (12 ha) of land in 

subunit 5F will result in the extinction 

of the San Diego fairy shrimp. 

Economics 

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

to designate critical habitat on the basis 

of the best scientific information 

mstockstill on PROD1PC66 with RULES2

70688 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

available and to consider the economic 

impact on national security 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 concerned. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The draft economic 

analysis (DEA) was made available for 

public review on April 8, 2004 (69 FR 

18516). We accepted comments on the 

draft analysis until May 10, 2004. On 

April 3, 2007, we published a notice in 

the Federal Register (72 FR 15857) 

announcing the reopening of the public 

comment period for the 2003 proposed 

rule to revise critical habitat (68 FR 

19888; April 22, 2003) for the San Diego 

fairy shrimp and on the DEA. We 

accepted comments and information 

until May 3, 2007. 

The primary purpose of the DEA is to 

estimate the potential economic impacts 

associated with the designation of 

critical habitat for the San Diego fairy 

shrimp. This information is intended to 

assist the Secretary in making decisions 

about whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. This economic 

analysis considers the economic 

efficiency effects that may result from 

the designation, including habitat 

protections that may be co-extensive 

with the listing of the species. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

This draft analysis focuses on the 

direct and indirect costs of the rule. 

However, economic impacts to land use 

activities can exist in the absence of 

critical habitat. These impacts may 

result from, for example, local zoning 

laws, State and natural resource laws, 

and enforceable management plans and 

best management practices applied by 

other State and Federal agencies. 

Economic impacts that result from these 

types of protections are not included in 

the analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

The DEA examined activities taking 

place both within and adjacent to the 

areas ‘‘considered, but not proposed’’

and the areas formally proposed for 

critical habitat designation (68 FR 

19888, April 22, 2003). It estimates 

impacts based on activities that are 

‘‘reasonably foreseeable’’ including, but 

not limited to, activities that are 

currently authorized, permitted, or 

funded, or for which proposed plans are 

currently available to the public. 

Accordingly, the analysis bases 

estimates on activities that are likely to 

occur within a 20-year time frame, from 

when the proposed rule became 

available to the public (68 FR 19888, 

April 22, 2003). The 20-year time frame 

was chosen for the analysis because, as 

the time horizon for an economic 

analysis is expanded, the assumptions 

on which the projected number of 

projects and cost impacts associated 

with those projects are based become 

increasingly speculative. 

Due to the amount of time that 

elapsed between the publication of the 

DEA and the publication of this final 

rule, we developed an addendum to the 

DEA to investigate how the potential 

economic effects may have changed 

since the DEA was made available to the 

public (69 FR 18516, April 8, 2004). The 

addendum does not recreate the 

analysis provided in the DEA or 

recalculate all the results; rather it is 

designed to assess the primary 

implications of the changes that have 

taken place since the publication of the 

DEA. The addendum recognizes that the 

DEA was based on 2002 dollars and also 

calculates costs in 2002 dollars to 

enable direct comparison with the draft 

analysis. The DEA estimated 

$53,042,532 in economic costs 

associated with the conservation of the 

San Diego fairy shrimp over the next 20 

years or approximately $5.2 million 

annually. Most of the impact results 

from private land development avoiding 

areas containing vernal pool soils and 

topography. At the time the DEA was 

conducted, we looked at the total cost 

of listing and critical habitat without 

attributing which costs were related 

specifically to the designation of critical 

habitat (incremental impacts). The 

addendum estimates that 44 percent or 

$23,140,688 of the cost is attributable to 

the critical habitat designation because 

Federal action agencies already 

routinely initiate consultations with the 

Service for projects that potentially 

affect San Diego fairy shrimp and its 

vernal pool habitat; however, the critical 

habitat designation may provide new 

information about the extent or range of 

linked watershed areas, resulting in 

consultations or project modifications 

that may not have occurred in the 

absence of critical habitat designation. 

The final addendum further estimates 

that future evaluations of destruction or 

adverse modification of critical habitat 

under section 7 of the Act in accordance 

with the statutory standard recognized 

by the Gifford Pinchot decision could 

have either negligible impacts or could 

increase the economic impacts reported 

in the draft analysis if additional 

conservation above that provided under 

the existing regulatory baseline is 

required to ensure that the affected 

critical habitat unit would remain 

functional (or retain the current ability 

for the PCEs to be functionally 

established) to serve its intended 

conservation role for the species. 

However, the addendum states that the 

implications of this relatively recent 

court decision are difficult to quantify at 

this time. The addendum estimates that 

the total cost attributable to the critical 

habitat designation ($23,140,688) could 

be $5,228,000 higher based on updated 

market data, but could be $324,484 

lower based on the decision not to 

relocate the San Diego International 

Airport, a cost that was factored in to 

the DEA. The addendum assumes that 

the baseline regulatory context within 

the City of San Diego would not change 

in the aftermath of the recent Bartel 

district court decision enjoining the 

City’s incidental take permit for the San 

Diego fairy shrimp. Any prediction 

about possible economic effects of the 

court’s decision on the baseline 

regulatory context for the San Diego 

fairy shrimp within the City would be 

speculative because the future of the 

City’s subarea plan and conservation 

efforts with regard to the San Diego fairy 

shrimp are currently unknown. On a 

cost per unit basis, the largest portion of 

forecast costs is expected to occur in 

Unit 3, the San Diego, Inland Valley. 

The DEA estimated $37,462,742 in 

economic costs for this unit and the 

addendum estimates that $16,365,476 of 

the cost is attributable to the critical 

habitat designation. Unit 3, the San 

Diego, Inland Valley has a higher 

portion of forecast costs because this 

area is not covered by an HCP and 

therefore has no baseline regulatory 

context for the San Diego fairy shrimp, 

meaning that there are no local or state 

laws that would restrict the 

development of these lands for the San 

Diego fairy shrimp if this species was 

not federally listed. These costs are 

attributable to lost commercial and 

industrial development potential. We do 

not find the economic costs to be 

disproportionate because similar costs 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70689 

are potentially occurring in other areas 

included in critical habitat, but have not 

been calculated due to existing HCPs or 

regulations that are in place which 

conserve the San Diego fairy shrimp and 

its habitat. Therefore we have not 

considered these areas for exclusion 

based on the economic analysis. 

A copy of the DEA, associated 

addendum, and with supporting 

documents are included in our 

supporting record and may be obtained 

by contacting U.S. Fish and Wildlife 

Service, Carlsbad Fish and Wildlife 

Office (see ADDRESSES section) or for 

downloading from the Internet at 

http://www.fws.gov/carlsbad. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

(E.O.) 12866, this document is a 

significant rule in that it may raise novel 

legal and policy issues. Based on the 

DEA looking at all conservation related 

effects, $53,042,532 in economic costs 

are estimated over the next 20 years or 

approximately $5.2 million annually. 

Based on the addendum to the DEA, 

$23,140,688 is estimated to be 

attributable to the critical habitat 

designation. The addendum states that 

the total cost attributable to the critical 

habitat designation could be $5,228,000 

higher based on updated market data or 

could be $324,484 lower based on the 

decision not to relocate the San Diego 

International Airport, a cost that was 

factored in to the DEA. From an 

evaluation of our DEA and addendum 

we have determined that the critical 

habitat designation will not have an 

annual effect on the economy of $100 

million or more or affect the economy 

in a material way. Due to the tight 

timeline for publication in the Federal 

Register, the Office of Management and 

Budget (OMB) has not formally 

reviewed this rule. 

Further, E.O. 12866 directs Federal 

agencies promulgating regulations to 

evaluate regulatory alternatives (OMB 

Circular A–4, September 17, 2003). 

Under Circular A–4, once an agency 

determines that the Federal regulatory 

action is appropriate, the agency must 

consider alternative regulatory 

approaches. Because the determination 

of critical habitat is a statutory 

requirement under the Act, we must 

evaluate alternative regulatory 

approaches, where feasible, when 

promulgating a designation of critical 

habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts under 

section 4(b)(2) of the Act. Based on the 

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or a combination of 

both, constitutes our regulatory 

alternative analysis for designations. 

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

et seq.) 

Under the Regulatory Flexibility Act 

(RFA) (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. The SBREFA amended the RFA 

to require Federal agencies to provide a 

statement of factual basis for certifying 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. The SBREFA 

amended the RFA to require Federal 

agencies to provide a certification 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small 

organizations, such as independent 

nonprofit organizations; small 

governmental jurisdictions, including 

school boards and city and town 

governments that serve fewer than 

50,000 residents; as well as small 

businesses. Small businesses include 

manufacturing and mining concerns 

with fewer than 500 employees, 

wholesale trade entities with fewer than 

100 employees, retail and service 

businesses with less than $5 million in 

annual sales, general and heavy 

construction businesses with less than 

$27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

(e.g., housing development, grazing, oil 

and gas production, timber harvesting). 

We apply the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’

or ‘‘significant economic impact.’’

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In some circumstances, 

especially with critical habitat 

designations of limited extent, we may 

aggregate across all industries and 

consider whether the total number of 

small entities affected is substantial. In 

estimating the number of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or implement that may 

affect San Diego fairy shrimp. Federal 

agencies also must consult with us if 

their activities may affect critical 

habitat. Designation of critical habitat, 

therefore, could result in an additional 

economic impact on small entities due 

to the requirement to reinitiate 

consultation for ongoing Federal 

activities. 

Small businesses in the land 

development and real estate industry 

and small governments are likely to be 

affected by the rule. According to the 

DEA, three small businesses in the land 

development and real estate industry 

are likely to be affected annually, 

representing less than 1 percent of the 

total number of small businesses in the 

industry for the study area. These 

affected small businesses are likely to 

experience an impact of 17 percent on 

their annual revenues as a result of the 

vernal pool critical habitat designation. 

mstockstill on PROD1PC66 with RULES2

70690 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

The DEA encompassed both those areas 

‘‘considered, but not proposed’’ and the 

areas formally proposed for critical 

habitat designation. We anticipate the 

economic impacts to be less than those 

discussed in the DEA because the area 

we are designating is smaller than the 

area analyzed in the DEA. For the small 

governments in the study area, about 8 

percent of the total number of small 

governments in the study area may be 

affected by this action. Affected small 

governments are likely to experience 

impacts that range from 1 to 5 percent 

of the median revenue of small 

governments in the study area. 

However, for a small government to 

experience more than 1 percent impact 

to its annual revenues, the project must 

be funded and completed in a year. 

Transportation infrastructure projects 

will typically span 3 to 10 years, 

suggesting that most of the small 

governments in this analysis will 

experience closer to a 1 percent impact 

to their annual revenues. 

In general, two different mechanisms 

in section 7 consultations could lead to 

additional regulatory requirements for 

the approximately three small 

businesses, on average, that may be 

required to consult with us each year 

regarding their project’s impact on San 

Diego fairy shrimp and its habitat. First, 

if we conclude, in a biological opinion, 

that a proposed action is likely to 

jeopardize the continued existence of a 

species or adversely modify its critical 

habitat, we can offer ‘‘reasonable and 

prudent alternatives.’’ Reasonable and 

prudent alternatives are alternative 

actions that can be implemented in a 

manner consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

avoid jeopardizing the continued 

existence of listed species or result in 

adverse modification of critical habitat. 

A Federal agency and an applicant may 

elect to implement a reasonable and 

prudent alternative associated with a 

biological opinion that has found 

jeopardy or adverse modification of 

critical habitat. An agency or applicant 

could alternatively choose to seek an 

exemption from the requirements of the 

Act or proceed without implementing 

the reasonable and prudent alternative. 

However, unless an exemption were 

obtained, the Federal agency or 

applicant would be at risk of violating 

section 7(a)(2) of the Act if it chose to 

proceed without implementing the 

reasonable and prudent alternatives. 

Second, if we find that a proposed 

action is not likely to jeopardize the 

continued existence of a listed animal or 

plant species or adversely modify its 

critical habitat, we may identify 

discretionary conservation 

recommendations designed to minimize 

or avoid the adverse effects of a 

proposed action on listed species or 

critical habitat, help implement 

recovery plans, or develop information 

that could contribute to the recovery of 

the species. 

Based on our experience with 

consultations under section 7 of the Act 

for all listed species, virtually all 

projects—including those that, in their 

initial proposed form, would result in 

jeopardy or adverse modification 

determinations in section 7 

consultations—can be implemented 

successfully with, at most, the adoption 

of reasonable and prudent alternatives. 

These measures, by definition, must be 

economically feasible and within the 

scope of authority of the Federal agency 

involved in the consultation. We can 

only describe the general kinds of 

actions that may be identified in future 

reasonable and prudent alternatives. 

These are based on our understanding of 

the needs of the species and the threats 

it faces, as described in the final listing 

rule and this critical habitat designation. 

Within the final critical habitat units, 

the types of Federal actions or 

authorized activities that we have 

identified as potential concerns are: 

(1) Regulation of activities affecting 

waters of the United States by the Corps 

under section 404 of the Clean Water 

Act; 

(2) Regulation of water flows, 

damming, diversion, and channelization 

implemented or licensed by Federal 

agencies; 

(3) Road construction and 

maintenance and right-of-way 

designation by Federal Highway 

Administration (FHWA); 

(4) Regulation of airport improvement 

activities by the Federal Aviation 

Administration; 

(5) Hazard mitigation and postdisaster repairs funded by the FEMA; 

and 

(6) Land development or other 

activities funded or permitted by the 

EPA, U.S. Department of Energy, or any 

other Federal agency. 

Federal involvement, and thus section 

7 consultations, would be limited to a 

subset of the area designated. The most 

likely Federal involvement could 

include Army Corps of Engineers 

permits, permits we may issue under 

section 10(a)(1)(B) of the Act, and 

FHWA funding for road improvements. 

Further, it is likely that a developer or 

other project proponent could modify a 

project or take measures to protect San 

Diego fairy shrimp. The kinds of actions 

that may be included if future 

reasonable and prudent alternatives 

become necessary include conservation 

set-asides, management of competing 

nonnative species, restoration of 

degraded habitat, and regular 

monitoring. These are based on our 

understanding of the needs of the 

species and the threats it faces, as 

described in the final listing rule and 

proposed critical habitat designation. 

These measures are not likely to result 

in a significant economic impact to 

project proponents. 

In summary, we have considered 

whether this final designation of critical 

habitat for the San Diego fairy shrimp 

would result in a significant economic 

impact on a substantial number of small 

entities. Only three small real estate and 

development businesses, or less than 1 

percent of the total businesses in the 

industry, are likely to be affected 

annually by the final designation. Only 

1 small government, or 8 percent of the 

small governments within designated 

critical habitat, is likely to be affected by 

the final designation and economic 

impacts are estimated to be only 

approximately 1 percent of annual 

revenues. Therefore, we certify that the 

designation of critical habitat for the 

San Diego fairy shrimp will not result in 

a significant impact on a substantial 

number of small business entities. 

Please see the ‘‘Economic Analysis’’

section above, the DEA, and the final 

addendum for a more detailed 

discussion of potential economic 

impacts. A regulatory flexibility analysis 

is not required. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 801 et seq.) 

Under SBREFA, this rule is not a 

major rule. Our detailed assessment of 

the economic effects of this designation 

is described in the economic analysis. 

Based on the effects identified in the 

economic analysis, we believe that this 

rule will not have an annual effect on 

the economy of $100 million or more, 

will not cause a major increase in costs 

or prices for consumers, and will not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. Refer to 

the final economic analysis for a 

discussion of the effects of this 

determination. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211; Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) on regulations that 

significantly affect energy supply, 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70691 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. While this final rule to 

designate critical habitat for San Diego 

fairy shrimp is a significant regulatory 

action under E.O. 12866 in that it may 

raise novel legal and policy issues, we 

do not expect it to significantly affect 

energy supplies, distribution, or use. 

The DEA concluded that no project 

modifications are anticipated to occur in 

any energy producing industries from 

the implementation of this rule. 

Furthermore, no additional energy use 

is likely to be required as a result of 

designation of critical habitat for the 

San Diego fairy shrimp. Based on 

information from Federal agencies 

involved in the construction of new 

energy production facilities or the 

maintenance of energy facilities, there is 

no expected impact on energy 

producing industries over the next 20 

years (Economic and Planning Systems, 

Inc. 2004, p. 76). Because of the 

minimal impact of this designation we 

conclude that 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.), we make the following findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private 

sector, and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or [T]ribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and [T]ribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(b) Based on our DEA and final 

addendum, for the small governments in 

the study area, less than one unique 

small government is likely to be affected 

annually or about eight percent of the 

total number of small governments in 

the study area. Affected small 

governments are likely to experience 

impacts that fall in the range of one 

percent to five percent of the median 

revenue of small governments in the 

study area. However, for a small 

government to experience more than 

one percent impact to its annual 

revenues, the project must be funded 

and completed in a year. Transportation 

infrastructure projects will typically 

span anywhere from 3 to 10 years, 

suggesting that most of the small 

governments in the analysis will 

experience closer to a one percent 

impact to their annual revenues from 

San Diego fairy shrimp critical habitat 

designation. Therefore, we do not 

believe that this rule will significantly 

or uniquely affect small governments 

because it 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. As such, 

a Small Government Agency Plan is not 

required. 

Takings 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for San Diego 

fairy shrimp in a takings implications 

assessment. The takings implications 

assessment concludes that this 

designation of critical habitat for San 

Diego fairy shrimp does not pose 

significant takings implications for 

lands within or affected by the 

designation. 

Federalism 

In accordance with E.O. 13132 

(Federalism), this rule does not have 

significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, 

critical habitat designation with 

appropriate State resource agencies in 

California. We received comments from 

California Department of Fish and Game 

(CDFG); those comments and our 

responses are included in the Summary 

of Comments and Recommendations 

section of this final rule. The 

designation may have some benefit to 

these governments because the areas 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the conservation of the 

species are specifically identified. This 

information does not alter where and 

what federally sponsored activities may 

occur. However, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Civil Justice Reform 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the rule 

does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We have designated 

critical habitat in accordance with the 

provisions of the Act. This revised final 

rule uses standard property descriptions 

and identifies the primary constituent 

elements within the designated areas to 

mstockstill on PROD1PC66 with RULES2

70692 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

assist the public in understanding the 

habitat needs of the San Diego fairy 

shrimp. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

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

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the Circuit Court of the 

United States for the Tenth Circuit, we 

do not need to prepare environmental 

analyses as defined by NEPA (42 U.S.C. 

4321 et seq.) in connection with 

designating critical habitat under the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). This assertion was 

upheld by the Circuit Court of the 

United States for the Ninth Circuit 

(Douglas County v. Babbitt, 48 F.3d 

1495 (9th Cir. 1995), cert. denied 516 

U.S. 1042 (1996)). 

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 manual at 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 occupied at the time of listing that 

contain the features essential for the 

conservation, and no Tribal lands that 

are unoccupied areas that are essential 

for the conservation of the San Diego 

fairy shrimp. Therefore, critical habitat 

for the San Diego fairy shrimp has not 

been designated on Tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Carlsbad Fish and Wildlife Office (see 

ADDRESSES). 

Author(s) 

The primary author of this package is 

the staff of the Carlsbad Fish and 

Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.95(h), revise the entry for 

‘‘San Diego Fairy Shrimp (Branchinecta 

sandiegonensis)’’ to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(h) Crustaceans 

* * * * * 

San Diego Fairy Shrimp 

(Branchinecta sandiegonensis) 

(1) Critical habitat units are depicted 

for Orange and San Diego counties, 

California, on the maps below. 

(2) The primary constituent elements 

of critical habitat for the San Diego fairy 

shrimp are: 

(i) Vernal pools with shallow to 

moderate depths (2 in (5 cm) to 12 in 

(30 cm)) that hold water for sufficient 

lengths of time (7 to 60 days) necessary 

for incubation, maturation, and 

reproduction of the San Diego fairy 

shrimp, in all but the driest years; 

(ii) Topographic features 

characterized by mounds and swales 

and depressions within a matrix of 

surrounding uplands that result in 

complexes of continuously, or 

intermittently, flowing surface water in 

the swales connecting the pools 

described in paragraph (2)(i) of this 

entry, providing for dispersal and 

promoting hydroperiods of adequate 

length in the pools (i.e., the vernal pool 

watershed); and 

(iii) Flat to 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 (including Carlsbad, 

Chesterton, Diablo, Huerhuero, Linne, 

Olivenhain, Placentia, Redding, and 

Stockpen soils). 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on the effective date of this 

rule. 

(4) Critical habitat map units. Data 

layers defining map units were created 

using a base of U.S. Geological Survey 

7.5′ quadrangle maps, and the critical 

habitat units were then mapped using 

UTM coordinates. 

(5) Note: Index map (Map 1) follows: 

BILLING CODE 4310–55–P 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70693 


mstockstill on PROD1PC66 with RULES2ER12DE07.000</GPH><FNP>
70694 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

(6) Unit 1: Orange County, California. 

From USGS 1:24, 000 quadrangle map 

Newport Beach. 

(i) Subunit 1C. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 412805, 3721810; 412694, 

3721593; 412668, 3721631; 412633, 

3721638; 412589, 3721661; 412539, 

3721674; 412521, 3721676; 412436, 

3721693; 412465, 3721807; 412524, 

3721907; 412616, 3721871; 412643, 

3721844; 412677, 3721827; 412744, 

3721820; 412805, 3721810. 

(ii) Note: Map of Unit 1, Subunit 1C 

(Map 2) follows: 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70695 


mstockstill on PROD1PC66 with RULES2ER12DE07.001</GPH><FNP>
70696 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

(7) Unit 2: San Diego County, 

California. From USGS 1:24, 000 

quadrangle map Encinitas. 

(i) Subunit 2G. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 470300, 3663348; 470301, 

3663346; 470323, 3663284; 470356, 

3663198; 470366, 3663172; 470382, 

3663133; 470388, 3663119; 470399, 

3663092; 470399, 3663092; 470408, 

3663065; 470418, 3663034; 470424, 

3663019; 470434, 3663002; 470442, 

3662980; 470447, 3662960; 470459, 

3662925; 470476, 3662876; 470527, 

3662739; 470531, 3662733; 470573, 

3662699; 470596, 3662675; 470596, 

3662661; 470590, 3662625; 470584, 

3662600; 470568, 3662600; 470548, 

3662600; 470500, 3662727; 470500, 

3662779; 470500, 3662800; 470492, 

3662800; 470472, 3662800; 470430, 

3662912; 470400, 3662991; 470400, 

3663000; 470397, 3663000; 470343, 

3663144; 470300, 3663252; 470300, 

3663328; 470300, 3663330. 

(ii) Note: Map of Unit 2, Subunit 2G 

(Map 3) follows: 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70697 

BILLING CODE 4310–55–C 


mstockstill on PROD1PC66 with RULES2ER12DE07.002</GPH>
70698 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

(8) Unit 3: San Diego County, 

California. From USGS 1:24, 000 

quadrangle maps San Marcos, San 

Pasqual, and Ramona. 

(i) Subunit 3A. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 482519, 3667481; 482522, 

3667490; 482746, 3667403; 482743, 

3667398; 482702, 3667300; 482600, 

3667300; 482600, 3667232; 482556, 

3667127; 482419, 3667185; 482436, 

3667237; 482433, 3667249; 482361, 

3667282; 482404, 3667370; 482467, 

3667341; 482489, 3667400; 482500, 

3667400; 482500, 3667430. 

(ii) Subunit 3C. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 482054, 3666630; 481931, 

3666341; 481800, 3666394; 481800, 

3666400; 481786, 3666400; 481600, 

3666476; 481600, 3666500; 481542, 

3666500; 481586, 3666600; 481600, 

3666600; 481600, 3666631; 481672, 

3666793. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 481457, 3666290; 481750, 

3666164; 481792, 3666269; 481822, 

3666258; 481888, 3666230; 481888, 

3666188; 481900, 3666135; 481900, 

3666128; 481900, 3666100; 481908, 

3666100; 481910, 3666093; 481926, 

3666044; 481938, 3666006; 481954, 

3665952; 481953, 3665951; 481872, 

3665932; 481893, 3665863; 481726, 

3665813; 481717, 3665831; 481700, 

3665878; 481700, 3665900; 481692, 

3665900; 481662, 3665987; 481637, 

3666057; 481623, 3666077; 481600, 

3666087; 481600, 3666100; 481572, 

3666100; 481571, 3666100; 481406, 

3666174; 481444, 3666261; 481455, 

3666286. 

(iii) Subunit 3D. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 482905, 3666600; 482943, 

3666600; 482951, 3666576; 482878, 

3666400; 482844, 3666400; 482800, 

3666539; 482800, 3666566. 

(iv) Subunit 3E.1. Land bounded by 

the following UTM NAD27 coordinates 

(E,N): 505832, 3655634; 505833, 

3655626; 505920, 3655402; 506333, 

3654967; 506504, 3655015; 506619, 

3655015; 506795, 3655157; 507417, 

3654906; 507417, 3654593; 507713, 

3654398; 507614, 3654262; 506880, 

3654385; 506410, 3654601; 505906, 

3654692; 505398, 3655020; 505000, 

3655164; 505000, 3655250; 505000, 

3655500; 505000, 3655532; 505068, 

3655630; 505199, 3655620; 505259, 

3655600; 505403, 3655674; 505514, 

3655610; 505534, 3655573; 505660, 

3655633; 505665, 3655636; 505665, 

3655636; 505692, 3655667; 505811, 

3655671; 505832, 3655634; 505832, 

3655634. 

(v) Subunit 3E.2. Land bounded by 

the following UTM NAD27 coordinates 

(E,N): 509149, 3655266; 509295, 

3655337; 509429, 3655206; 509321, 

3655061; 509275, 3655000; 509250, 

3655000; 509250, 3654973; 509174, 

3654924; 509203, 3654625; 508642, 

3654684; 508347, 3654484; 508311, 

3654514; 508344, 3654563; 508583, 

3654776; 508577, 3654914; 508488, 

3654973; 508013, 3654934; 508029, 

3655012; 507918, 3655209; 507485, 

3655284; 507301, 3655340; 507261, 

3655424; 507203, 3655544; 508301, 

3655340; 508379, 3655228; 508429, 

3655157; 508444, 3655152; 508646, 

3655084; 508760, 3655311; 509003, 

3655196; 509131, 3655258. 

(vi) Subunit 3E.3. Land bounded by 

the following UTM NAD27 coordinates 

(E,N): 510101, 3654200; 510140, 

3654178; 510198, 3654185; 510244, 

3654214; 510292, 3654240; 510317, 

3654246; 510342, 3654205; 510330, 

3654166; 510323, 3654121; 510325, 

3654076; 510321, 3654007; 510314, 

3654000; 510300, 3654000; 510300, 

3653984; 510250, 3653938; 510250, 

3653938; 510210, 3653900; 510200, 

3653900; 510152, 3653953; 510148, 

3653968; 510158, 3654004; 510110, 

3654061; 510023, 3654160; 510062, 

3654196; 510098, 3654200; 510100, 

3654200; 510100, 3654200. Land 

bounded by the following UTM NAD27 

coordinates (E,N): 511334, 3655370; 

511340, 3655365; 511345, 3655353; 

511397, 3655274; 511404, 3655265; 

511416, 3655273; 511460, 3655300; 

511473, 3655300; 511500, 3655262; 

511500, 3655250; 511500, 3655218; 

511500, 3655214; 511331, 3655102; 

511310, 3655088; 511300, 3655099; 

511300, 3655100; 511299, 3655100; 

511292, 3655107; 511250, 3655150; 

511208, 3655192; 511200, 3655200; 

511200, 3655265; 511250, 3655310; 

511299, 3655354; 511333, 3655371. 

(vii) Subunit 3E.4. Land bounded by 

the following UTM NAD27 coordinates 

(E,N): 512552, 3654788; 512561, 

3654778; 512553, 3654759; 512542, 

3654734; 512535, 3654677; 512533, 

3654565; 512532, 3654547; 512531, 

3654515; 512530, 3654422; 512485, 

3654420; 512487, 3654359; 512313, 

3654385; 512139, 3654363; 511954, 

3654363; 511937, 3654353; 511935, 

3654350; 511874, 3654257; 511806, 

3654242; 511802, 3654342; 511873, 

3654405; 511946, 3654429; 511947, 

3654432; 511948, 3654430; 512095, 

3654525; 512106, 3654533; 512441, 

3654750; 512442, 3654750; 512443, 

3654750; 512500, 3654787; 512500, 

3654785; 512517, 3654799; 512532, 

3654810; 512533, 3654809. 

(viii) Note: Map of Unit 3, Subunits 

3A, 3C, and 3D (Map 4) follows: 

BILLING CODE 4310–55–P 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70699 

(ix) Note: Map of Unit 3, Subunits 

3E.1, 3E.2, 3E.3, and 3E.4 (Map 5) 

follows: 


mstockstill on PROD1PC66 with RULES2ER12DE07.003</GPH>
70700 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

BILLING CODE 4310–55–C 


mstockstill on PROD1PC66 with RULES2ER12DE07.004</GPH>
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70701 

(9) Unit 4: San Diego County, 

California. From USGS 1:24, 000 

quadrangle maps Del Mar, La Jolla, and 

La Mesa. 

(i) Subunit 4A/B. Land bounded by 

the following UTM NAD27 coordinates 

(E,N): 485317, 3645035; 485298, 

3645039; 485274, 3645039; 485259, 

3645035; 485245, 3645032; 485244, 

3645032; 485241, 3645032; 485226, 

3645028; 485213, 3645026; 485209, 

3645025; 485187, 3645020; 485173, 

3645017; 485153, 3645012; 485139, 

3645009; 485128, 3645009; 485114, 

3645012; 485101, 3645018; 485090, 

3645027; 485078, 3645035; 485065, 

3645043; 485052, 3645052; 485033, 

3645066; 485019, 3645074; 485009, 

3645081; 485001, 3645086; 484987, 

3645095; 484971, 3645103; 484957, 

3645107; 484940, 3645108; 484923, 

3645108; 484912, 3645106; 484901, 

3645102; 484897, 3645098; 484890, 

3645093; 484886, 3645088; 484884, 

3645085; 484883, 3645077; 484886, 

3645067; 484890, 3645055; 484899, 

3645041; 484906, 3645034; 484915, 

3645027; 484921, 3645018; 484929, 

3645005; 484935, 3644996; 484943, 

3644981; 484947, 3644970; 484947, 

3644958; 484945, 3644947; 484939, 

3644936; 484933, 3644928; 484925, 

3644922; 484916, 3644917; 484904, 

3644916; 484891, 3644921; 484873, 

3644929; 484860, 3644939; 484860, 

3644939; 484850, 3644950; 484841, 

3644961; 484829, 3644979; 484822, 

3644989; 484817, 3644997; 484812, 

3645003; 484806, 3645012; 484796, 

3645023; 484795, 3645024; 484785, 

3645030; 484771, 3645032; 484758, 

3645034; 484741, 3645032; 484729, 

3645030; 484715, 3645026; 484709, 

3645024; 484704, 3645022; 484697, 

3645018; 484691, 3645012; 484688, 

3645008; 484685, 3645004; 484675, 

3644990; 484670, 3644981; 484665, 

3644967; 484662, 3644959; 484659, 

3644953; 484656, 3644947; 484651, 

3644936; 484650, 3644934; 484639, 

3644920; 484633, 3644912; 484629, 

3644906; 484622, 3644899; 484615, 

3644896; 484605, 3644894; 484600, 

3644893; 484589, 3644893; 484575, 

3644897; 484561, 3644903; 484550, 

3644908; 484539, 3644916; 484531, 

3644929; 484523, 3644951; 484520, 

3644957; 484518, 3644963; 484517, 

3644969; 484515, 3644975; 484512, 

3644991; 484507, 3645006; 484498, 

3645018; 484491, 3645021; 484490, 

3645022; 484487, 3645023; 484472, 

3645024; 484459, 3645023; 484458, 

3645023; 484458, 3645023; 484450, 

3645023; 484426, 3645025; 484397, 

3645030; 484378, 3645037; 484367, 

3645047; 484358, 3645060; 484352, 

3645072; 484349, 3645083; 484350, 

3645096; 484357, 3645102; 484368, 

3645107; 484379, 3645111; 484393, 

3645112; 484410, 3645110; 484414, 

3645108; 484414, 3645108; 484429, 

3645101; 484441, 3645097; 484451, 

3645092; 484460, 3645085; 484472, 

3645078; 484486, 3645069; 484498, 

3645062; 484498, 3645062; 484512, 

3645058; 484515, 3645057; 484520, 

3645057; 484529, 3645056; 484544, 

3645055; 484564, 3645053; 484586, 

3645053; 484600, 3645054; 484618, 

3645060; 484632, 3645062; 484634, 

3645062; 484634, 3645062; 484636, 

3645063; 484646, 3645065; 484649, 

3645066; 484650, 3645066; 484665, 

3645068; 484691, 3645073; 484704, 

3645078; 484714, 3645087; 484718, 

3645095; 484720, 3645102; 484721, 

3645109; 484721, 3645119; 484721, 

3645123; 484720, 3645131; 484715, 

3645143; 484708, 3645157; 484701, 

3645163; 484691, 3645171; 484683, 

3645177; 484669, 3645185; 484662, 

3645189; 484651, 3645194; 484650, 

3645195; 484649, 3645196; 484647, 

3645199; 484637, 3645201; 484622, 

3645206; 484621, 3645208; 484620, 

3645208; 484620, 3645209; 484607, 

3645222; 484602, 3645230; 484598, 

3645243; 484595, 3645261; 484592, 

3645283; 484589, 3645300; 484589, 

3645300; 484588, 3645313; 484587, 

3645331; 484582, 3645350; 484578, 

3645361; 484573, 3645370; 484564, 

3645376; 484555, 3645381; 484543, 

3645385; 484531, 3645386; 484523, 

3645385; 484510, 3645382; 484502, 

3645378; 484487, 3645371; 484478, 

3645370; 484465, 3645367; 484449, 

3645365; 484440, 3645365; 484429, 

3645366; 484419, 3645373; 484412, 

3645379; 484409, 3645388; 484406, 

3645399; 484406, 3645403; 484406, 

3645404; 484406, 3645404; 484406, 

3645407; 484408, 3645413; 484413, 

3645418; 484416, 3645426; 484423, 

3645430; 484427, 3645432; 484432, 

3645436; 484440, 3645439; 484451, 

3645448; 484458, 3645454; 484465, 

3645459; 484471, 3645465; 484476, 

3645472; 484479, 3645476; 484483, 

3645490; 484483, 3645497; 484481, 

3645508; 484476, 3645519; 484470, 

3645526; 484459, 3645530; 484447, 

3645535; 484422, 3645543; 484412, 

3645546; 484406, 3645547; 484389, 

3645553; 484377, 3645559; 484367, 

3645572; 484363, 3645578; 484362, 

3645585; 484363, 3645594; 484368, 

3645599; 484368, 3645599; 484369, 

3645600; 484372, 3645605; 484377, 

3645611; 484380, 3645626; 484382, 

3645635; 484386, 3645643; 484386, 

3645644; 484387, 3645655; 484387, 

3645663; 484387, 3645664; 484385, 

3645677; 484382, 3645688; 484371, 

3645700; 484363, 3645706; 484348, 

3645713; 484335, 3645718; 484318, 

3645720; 484307, 3645718; 484297, 

3645717; 484289, 3645713; 484283, 

3645711; 484274, 3645709; 484265, 

3645712; 484255, 3645715; 484245, 

3645723; 484244, 3645723; 484237, 

3645728; 484219, 3645734; 484209, 

3645732; 484197, 3645729; 484186, 

3645724; 484177, 3645720; 484167, 

3645715; 484155, 3645708; 484143, 

3645699; 484130, 3645694; 484115, 

3645691; 484104, 3645693; 484093, 

3645702; 484085, 3645711; 484077, 

3645718; 484074, 3645730; 484076, 

3645740; 484083, 3645747; 484098, 

3645753; 484110, 3645754; 484123, 

3645755; 484135, 3645754; 484149, 

3645752; 484160, 3645755; 484167, 

3645758; 484173, 3645761; 484178, 

3645765; 484182, 3645769; 484185, 

3645774; 484191, 3645785; 484199, 

3645795; 484205, 3645802; 484212, 

3645811; 484220, 3645818; 484229, 

3645823; 484238, 3645822; 484241, 

3645821; 484244, 3645820; 484250, 

3645816; 484256, 3645810; 484258, 

3645804; 484262, 3645801; 484264, 

3645799; 484267, 3645796; 484270, 

3645794; 484277, 3645788; 484292, 

3645778; 484307, 3645773; 484325, 

3645771; 484343, 3645773; 484353, 

3645775; 484362, 3645778; 484376, 

3645781; 484384, 3645782; 484396, 

3645780; 484407, 3645778; 484417, 

3645773; 484425, 3645770; 484442, 

3645764; 484445, 3645762; 484454, 

3645753; 484460, 3645744; 484467, 

3645739; 484475, 3645734; 484485, 

3645731; 484491, 3645730; 484499, 

3645727; 484504, 3645722; 484512, 

3645718; 484518, 3645714; 484524, 

3645705; 484526, 3645693; 484527, 

3645686; 484524, 3645666; 484521, 

3645660; 484515, 3645649; 484507, 

3645632; 484505, 3645617; 484506, 

3645610; 484510, 3645602; 484511, 

3645600; 484512, 3645600; 484512, 

3645600; 484512, 3645600; 484515, 

3645597; 484521, 3645593; 484528, 

3645590; 484538, 3645589; 484548, 

3645583; 484556, 3645574; 484566, 

3645563; 484571, 3645552; 484577, 

3645534; 484581, 3645520; 484587, 

3645507; 484590, 3645496; 484594, 

3645482; 484600, 3645459; 484604, 

3645442; 484610, 3645431; 484615, 

3645423; 484621, 3645410; 484629, 

3645399; 484631, 3645397; 484631, 

3645397; 484632, 3645396; 484637, 

3645392; 484643, 3645387; 484647, 

3645382; 484647, 3645382; 484650, 

3645378; 484661, 3645369; 484674, 

3645356; 484687, 3645347; 484700, 

3645335; 484704, 3645332; 484723, 

3645320; 484737, 3645313; 484751, 

3645305; 484769, 3645292; 484789, 

3645285; 484806, 3645275; 484810, 

3645274; 484817, 3645270; 484827, 

mstockstill on PROD1PC66 with RULES2

70702 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

3645268; 484835, 3645267; 484840, 

3645268; 484847, 3645269; 484853, 

3645274; 484857, 3645279; 484860, 

3645287; 484865, 3645298; 484871, 

3645306; 484879, 3645314; 484885, 

3645324; 484891, 3645331; 484899, 

3645342; 484907, 3645352; 484916, 

3645357; 484924, 3645358; 484935, 

3645357; 484945, 3645354; 484950, 

3645345; 484957, 3645338; 484965, 

3645330; 484970, 3645324; 484976, 

3645317; 484985, 3645304; 484993, 

3645296; 484996, 3645293; 485007, 

3645285; 485015, 3645282; 485021, 

3645281; 485031, 3645280; 485035, 

3645280; 485044, 3645280; 485056, 

3645279; 485065, 3645279; 485076, 

3645278; 485093, 3645273; 485113, 

3645266; 485126, 3645261; 485136, 

3645258; 485144, 3645253; 485150, 

3645252; 485162, 3645242; 485175, 

3645233; 485189, 3645219; 485202, 

3645210; 485214, 3645199; 485217, 

3645198; 485219, 3645197; 485226, 

3645189; 485236, 3645180; 485246, 

3645172; 485259, 3645165; 485274, 

3645158; 485286, 3645150; 485293, 

3645147; 485304, 3645144; 485320, 

3645144; 485334, 3645145; 485351, 

3645151; 485360, 3645156; 485367, 

3645162; 485369, 3645166; 485371, 

3645171; 485372, 3645175; 485374, 

3645180; 485375, 3645189; 485374, 

3645194; 485374, 3645205; 485376, 

3645221; 485379, 3645238; 485383, 

3645255; 485388, 3645281; 485391, 

3645291; 485398, 3645304; 485405, 

3645312; 485406, 3645312; 485390, 

3645351; 485385, 3645385; 485377, 

3645442; 485356, 3645586; 485340, 

3645756; 485335, 3645772; 485318, 

3645827; 485318, 3645827; 485310, 

3645851; 485309, 3645984; 485375, 

3646007; 485375, 3646007; 485388, 

3646011; 485407, 3646016; 485485, 

3646037; 485696, 3646058; 485786, 

3646083; 485789, 3646083; 485876, 

3646098; 485954, 3646155; 486023, 

3646185; 486099, 3646175; 486160, 

3646136; 486200, 3646117; 486222, 

3646106; 486223, 3646100; 486232, 

3646056; 486215, 3645983; 486196, 

3645951; 486213, 3645920; 486218, 

3645920; 486183, 3645872; 486189, 

3645811; 486190, 3645412; 485919, 

3645438; 485918, 3645438; 485917, 

3645371; 486016, 3645368; 486080, 

3645305; 486040, 3645234; 486027, 

3645244; 485982, 3645240; 485825, 

3645240; 485751, 3645241; 485738, 

3645193; 485708, 3645150; 485701, 

3645138; 485693, 3645136; 485681, 

3645130; 485679, 3645130; 485671, 

3645127; 485656, 3645121; 485644, 

3645114; 485631, 3645108; 485623, 

3645103; 485618, 3645100; 485615, 

3645098; 485599, 3645096; 485591, 

3645094; 485586, 3645093; 485581, 

3645092; 485571, 3645092; 485561, 

3645095; 485550, 3645099; 485533, 

3645100; 485533, 3645100; 485518, 

3645103; 485504, 3645104; 485489, 

3645102; 485479, 3645100; 485470, 

3645097; 485464, 3645092; 485461, 

3645088; 485451, 3645078; 485446, 

3645072; 485445, 3645070; 485445, 

3645069; 485441, 3645060; 485440, 

3645059; 485440, 3645058; 485440, 

3645052; 485385, 3645047; 485372, 

3645046; 485369, 3645046; 485369, 

3645044; 485369, 3645023; 485365, 

3645017; 485365, 3645016; 485364, 

3645016; 485364, 3645016; 485341, 

3645027; 485326, 3645032; 485322, 

3645033. 

(ii) Subunit 4C. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 490395, 3629279; 490395, 

3629231; 490396, 3629048; 490358, 

3628917; 490295, 3628700; 490293, 

3628636; 490280, 3628634; 490111, 

3628613; 490000, 3628601; 489913, 

3628573; 489739, 3628518; 489724, 

3628567; 489718, 3628588; 489705, 

3628631; 489842, 3628715; 489893, 

3628747; 489985, 3628789; 490101, 

3628795; 490203, 3628901; 490202, 

3628998; 490304, 3629099; 490306, 

3629152; 490301, 3629236; 490299, 

3629280; 490342, 3629279; 490364, 

3629279. 

(iii) Subunit 4D. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 494410, 3622458; 494410, 

3622458; 494415, 3622443; 494429, 

3622410; 494425, 3622393; 494409, 

3622376; 494394, 3622372; 494374, 

3622371; 494341, 3622377; 494327, 

3622361; 494325, 3622291; 494300, 

3622294; 494300, 3622300; 494250, 

3622300; 494226, 3622303; 494227, 

3622331; 494234, 3622339; 494242, 

3622347; 494240, 3622360; 494228, 

3622373; 494210, 3622384; 494200, 

3622392; 494200, 3622400; 494192, 

3622400; 494186, 3622411; 494180, 

3622431; 494100, 3622428; 494102, 

3622400; 494100, 3622400; 494100, 

3622392; 494093, 3622379; 494071, 

3622370; 494044, 3622367; 494024, 

3622370; 494006, 3622381; 494000, 

3622388; 494000, 3622400; 493991, 

3622400; 493979, 3622418; 493969, 

3622437; 493839, 3622432; 493839, 

3622463; 493839, 3622466; 493839, 

3622467; 493839, 3622468; 493867, 

3622468; 494023, 3622470; 494092, 

3622471; 494099, 3622471; 494417, 

3622476; 494417, 3622475; 494417, 

3622475. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 494403, 3622266; 494430, 

3622258; 494439, 3622241; 494444, 

3622219; 494433, 3622200; 494400, 

3622200; 494400, 3622136; 494399, 

3622134; 494389, 3622114; 494300, 

3622115; 494300, 3622151; 494308, 

3622175; 494300, 3622214; 494300, 

3622265. 

(iv) Subunit 4E. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 479564, 3643663; 479567, 

3643643; 479569, 3643624; 479569, 

3643612; 479569, 3643604; 479565, 

3643579; 479562, 3643558; 479558, 

3643541; 479555, 3643523; 479552, 

3643502; 479550, 3643476; 479551, 

3643456; 479560, 3643436; 479574, 

3643422; 479580, 3643414; 479580, 

3643414; 479590, 3643399; 479596, 

3643380; 479600, 3643346; 479600, 

3643346; 479600, 3643346; 479596, 

3643219; 479596, 3643164; 479605, 

3643123; 479608, 3643108; 479611, 

3643082; 479612, 3643060; 479610, 

3643042; 479611, 3643020; 479606, 

3643005; 479602, 3642994; 479597, 

3642980; 479594, 3642970; 479593, 

3642966; 479590, 3642954; 479589, 

3642951; 479582, 3642943; 479575, 

3642938; 479567, 3642936; 479565, 

3642937; 479564, 3642936; 479541, 

3642932; 479537, 3642904; 479500, 

3642905; 479500, 3643000; 479400, 

3643000; 479400, 3643055; 479400, 

3643061; 479400, 3643100; 479386, 

3643100; 479377, 3643100; 479308, 

3643100; 479308, 3643103; 479252, 

3643201; 479259, 3643248; 479330, 

3643265; 479376, 3643287; 479381, 

3643289; 479403, 3643300; 479415, 

3643362; 479424, 3643410; 479428, 

3643412; 479432, 3643426; 479443, 

3643437; 479443, 3643437; 479490, 

3643487; 479502, 3643499; 479503, 

3643651; 479504, 3643652; 479511, 

3643660; 479524, 3643673; 479548, 

3643698; 479553, 3643685; 479556, 

3643684; 479559, 3643677; 479561, 

3643673. 

(v) Subunit 4F. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 479996, 3643593; 479997, 

3643543; 479997, 3643513; 479913, 

3643503; 479900, 3643503; 479900, 

3643577; 479900, 3643683; 479998, 

3643682. 

(vi) Subunit 4G. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 484021, 3642526; 484021, 

3642515; 484019, 3642503; 484019, 

3642503; 484015, 3642495; 484008, 

3642489; 484005, 3642487; 483999, 

3642483; 483988, 3642477; 483978, 

3642473; 483969, 3642470; 483965, 

3642469; 483952, 3642466; 483943, 

3642465; 483931, 3642465; 483921, 

3642466; 483909, 3642470; 483898, 

3642470; 483891, 3642472; 483881, 

3642475; 483862, 3642479; 483847, 

3642484; 483832, 3642490; 483823, 

3642494; 483823, 3642494; 483814, 

3642497; 483795, 3642503; 483778, 

3642505; 483756, 3642504; 483742, 

3642499; 483727, 3642491; 483712, 

3642484; 483696, 3642476; 483682, 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70703 

3642473; 483669, 3642475; 483662, 

3642480; 483659, 3642490; 483659, 

3642502; 483664, 3642514; 483682, 

3642533; 483690, 3642536; 483703, 

3642538; 483721, 3642540; 483740, 

3642541; 483760, 3642541; 483777, 

3642538; 483788, 3642540; 483790, 

3642540; 483805, 3642537; 483826, 

3642531; 483846, 3642527; 483865, 

3642528; 483880, 3642532; 483882, 

3642532; 483898, 3642540; 483912, 

3642548; 483927, 3642557; 483943, 

3642565; 483955, 3642571; 483968, 

3642573; 483978, 3642570; 483988, 

3642566; 484001, 3642560; 484008, 

3642553; 484016, 3642542; 484020, 

3642535. 

(vii) Subunit 4H. Land bounded by 

the following UTM NAD27 coordinates 

(E,N): 483842, 3642261; 483853, 

3642265; 483867, 3642269; 483879, 

3642272; 483892, 3642272; 483905, 

3642274; 483912, 3642274; 483917, 

3642275; 483933, 3642275; 483948, 

3642277; 483964, 3642279; 483976, 

3642280; 483993, 3642281; 484005, 

3642281; 484013, 3642279; 484023, 

3642276; 484028, 3642270; 484030, 

3642263; 484030, 3642255; 484029, 

3642248; 484025, 3642241; 484020, 

3642233; 484014, 3642224; 484002, 

3642214; 483985, 3642202; 483972, 

3642193; 483953, 3642177; 483939, 

3642167; 483933, 3642159; 483933, 

3642146; 483939, 3642132; 483948, 

3642118; 483954, 3642108; 483955, 

3642106; 483955, 3642105; 483934, 

3642094; 483873, 3642068; 483839, 

3642059; 483835, 3642058; 483834, 

3642058; 483819, 3642055; 483809, 

3642053; 483796, 3642052; 483747, 

3642050; 483677, 3642050; 483628, 

3642051; 483601, 3642056; 483596, 

3642059; 483549, 3642079; 483543, 

3642082; 483549, 3642088; 483558, 

3642093; 483570, 3642095; 483580, 

3642095; 483589, 3642094; 483597, 

3642092; 483606, 3642090; 483607, 

3642090; 483607, 3642090; 483635, 

3642088; 483682, 3642088; 483719, 

3642094; 483754, 3642105; 483783, 

3642129; 483796, 3642147; 483797, 

3642148; 483803, 3642165; 483806, 

3642181; 483810, 3642198; 483814, 

3642219; 483818, 3642238; 483823, 

3642249; 483824, 3642251; 483832, 

3642258; 483841, 3642261. 

(viii) Subunit 4I. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 485100, 3641415; 485231, 

3641411; 485237, 3641411; 485445, 

3641409; 485450, 3641409; 485450, 

3641400; 485444, 3641310; 485444, 

3641310; 485438, 3641220; 485369, 

3641214; 485290, 3641219; 485258, 

3641235; 485211, 3641234; 485143, 

3641234; 485111, 3641262; 485101, 

3641270; 485069, 3641328; 485056, 

3641340; 485041, 3641355; 485022, 

3641356; 485015, 3641375; 485004, 

3641397; 485000, 3641419; 485019, 

3641424; 485035, 3641417; 485036, 

3641417; 485039, 3641417. 

(ix) Subunit 4J. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 485600, 3639788; 485601, 

3639788; 485612, 3639787; 485615, 

3639782; 485615, 3639781; 485609, 

3639777; 485604, 3639774; 485600, 

3639771; 485595, 3639769; 485578, 

3639758; 485558, 3639749; 485534, 

3639741; 485503, 3639730; 485490, 

3639724; 485478, 3639714; 485466, 

3639709; 485445, 3639701; 485441, 

3639700; 485417, 3639692; 485400, 

3639687; 485385, 3639682; 485363, 

3639673; 485322, 3639658; 485308, 

3639654; 485285, 3639648; 485267, 

3639644; 485247, 3639637; 485195, 

3639619; 485173, 3639614; 485170, 

3639614; 485153, 3639615; 485139, 

3639618; 485125, 3639622; 485114, 

3639632; 485106, 3639643; 485100, 

3639655; 485097, 3639660; 485095, 

3639672; 485099, 3639680; 485100, 

3639681; 485102, 3639685; 485107, 

3639693; 485112, 3639703; 485114, 

3639705; 485123, 3639716; 485131, 

3639722; 485136, 3639730; 485134, 

3639744; 485125, 3639756; 485115, 

3639770; 485104, 3639781; 485104, 

3639787; 485105, 3639787; 485104, 

3639797; 485600, 3639797. 

(x) Subunit 4K. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 486900, 3633200; 486911, 

3633200; 486913, 3633170; 486914, 

3633158; 486917, 3633125; 486934, 

3632893; 486937, 3632893; 486941, 

3632892; 486943, 3632892; 486942, 

3632891; 486940, 3632890; 486995, 

3632852; 486996, 3632831; 486996, 

3632805; 486971, 3632804; 486964, 

3632804; 486964, 3632819; 486948, 

3632822; 486941, 3632873; 486939, 

3632873; 486916, 3632876; 486915, 

3632877; 486915, 3632877; 486909, 

3632877; 486903, 3632877; 486900, 

3632877; 486895, 3632877; 486859, 

3632877; 486791, 3632884; 486731, 

3632895; 486720, 3632900; 486693, 

3632912; 486682, 3632917; 486674, 

3632921; 486668, 3632923; 486627, 

3632941; 486618, 3632944; 486596, 

3632950; 486580, 3632937; 486579, 

3632937; 486400, 3632968; 486192, 

3633005; 486136, 3633015; 486136, 

3633015; 486135, 3633139; 486200, 

3633155; 486220, 3633160; 486220, 

3633161; 486331, 3633188; 486332, 

3633188; 486332, 3633189; 486381, 

3633201; 486402, 3633206; 486482, 

3633225; 486603, 3633253; 486689, 

3633272; 486690, 3633272; 486700, 

3633274; 486771, 3633284; 486775, 

3633284; 486786, 3633284; 486900, 

3633299. 

(xi) Subunit 4L. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 487340, 3633277; 487340, 

3633277; 487361, 3633261; 487346, 

3633241; 487346, 3633241; 487346, 

3633241; 487298, 3633197; 487280, 

3633208; 487280, 3633208; 487280, 

3633209; 487268, 3633218; 487200, 

3633269; 487196, 3633272; 487160, 

3633234; 487100, 3633264; 487073, 

3633277; 487065, 3633300; 487062, 

3633309; 487053, 3633340; 487147, 

3633365; 487147, 3633366; 487152, 

3633366; 487204, 3633380. 

(xii) Subunit 4M. Land bounded by 

the following UTM NAD27 coordinates 

(E,N): 487669, 3631049; 487669, 

3631036; 487667, 3630972; 487660, 

3630780; 487672, 3630772; 487816, 

3630687; 487818, 3630675; 487828, 

3630556; 487829, 3630556; 488292, 

3630338; 488292, 3630320; 488294, 

3630143; 488295, 3630029; 488260, 

3630028; 488195, 3630027; 488076, 

3630043; 487879, 3630039; 487830, 

3630081; 487805, 3630102; 487714, 

3630177; 487798, 3630210; 487829, 

3630273; 487830, 3630336; 487830, 

3630388; 487516, 3630559; 487501, 

3630568; 487340, 3630655; 487335, 

3630674; 487313, 3630766; 487384, 

3630777; 487428, 3630783; 487503, 

3630920; 487508, 3631141; 487677, 

3631228; 487672, 3631125; 487670, 

3631078. 

(xiii) Note: Map of Unit 4, Subunits 

4A/B, 4G, 4H, 4I, and 4J (Map 6) 

follows: 

BILLING CODE 4310–55–P 

mstockstill on PROD1PC66 with RULES2

70704 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

(xiv) Note: Map of Unit 4, Subunits 

4C, 4K, 4L and 4M (Map 7) follows: 


mstockstill on PROD1PC66 with RULES2ER12DE07.005</GPH>
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70705 

(xv) Note: Map of Unit 4, Subunit 4D 

(Map 8) follows: 


mstockstill on PROD1PC66 with RULES2ER12DE07.006</GPH>
70706 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

(xvi) Note: Map of Unit 4, Subunits 4E 

and 4F (Map 9) follows: 


mstockstill on PROD1PC66 with RULES2ER12DE07.007</GPH>
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70707 

BILLING CODE 4310–55–C 


mstockstill on PROD1PC66 with RULES2ER12DE07.008</GPH>
70708 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

(10) Unit 5: San Diego County, 

California. From USGS 1:24, 000 

quadrangle maps Imperial Beach, Jamul 

Mountains, Otay Mesa, and Otay 

Mountain. 

(i) Subunit 5A. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 506870, 3606405; 506878, 

3606405; 506888, 3606405; 506887, 

3606404; 506881, 3606394; 506880, 

3606392; 506879, 3606390; 506882, 

3606388; 506874, 3606348; 506856, 

3606282; 506837, 3606194; 506847, 

3606090; 506880, 3606025; 506858, 

3606009; 506843, 3605998; 506802, 

3605981; 506795, 3605978; 506749, 

3605974; 506739, 3605981; 506713, 

3605998; 506692, 3606035; 506675, 

3606077; 506660, 3606147; 506656, 

3606157; 506647, 3606180; 506644, 

3606186; 506636, 3606200; 506625, 

3606220; 506593, 3606288; 506586, 

3606303; 506555, 3606368; 506541, 

3606400; 506539, 3606405; 506528, 

3606429; 506522, 3606487; 506609, 

3606517; 506609, 3606518; 506613, 

3606522; 506620, 3606526; 506631, 

3606530; 506657, 3606530; 506685, 

3606523; 506688, 3606523; 506691, 

3606524; 506702, 3606526; 506707, 

3606529; 506719, 3606537; 506724, 

3606543; 506728, 3606550; 506732, 

3606567; 506733, 3606573; 506734, 

3606582; 506753, 3606589; 506741, 

3606620; 506742, 3606626; 506744, 

3606633; 506745, 3606642; 506748, 

3606650; 506754, 3606656; 506760, 

3606661; 506766, 3606664; 506773, 

3606667; 506780, 3606666; 506788, 

3606665; 506793, 3606660; 506801, 

3606654; 506806, 3606648; 506813, 

3606638; 506819, 3606631; 506827, 

3606625; 506837, 3606621; 506844, 

3606619; 506846, 3606618; 506853, 

3606616; 506857, 3606614; 506858, 

3606461; 506858, 3606449; 506858, 

3606449; 506858, 3606436; 506858, 

3606427; 506858, 3606405; 506858, 

3606405. Excluding land bounded by 

the following UTM NAD27 coordinates 

(E,N): 506704, 3606405; 506655, 

3606405; 506655, 3606405; 506655, 

3606400; 506656, 3606300; 506656, 

3606200; 506656, 3606186; 506656, 

3606186; 506706, 3606186; 506831, 

3606187; 506831, 3606252; 506847, 

3606275; 506858, 3606290; 506858, 

3606290; 506858, 3606372; 506858, 

3606392; 506858, 3606405. Land 

bounded by the following UTM NAD27 

coordinates (E,N): 505791, 3606031; 

505841, 3605966; 505884, 3605895; 

505914, 3605830; 505935, 3605785; 

505950, 3605753; 505951, 3605750; 

505964, 3605715; 505973, 3605708; 

505983, 3605665; 505863, 3605614; 

505847, 3605635; 505834, 3605651; 

505825, 3605658; 505797, 3605677; 

505774, 3605686; 505774, 3605767; 

505774, 3605767; 505774, 3605807; 

505774, 3606046; 505774, 3606046. 

(ii) Subunit 5B. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 504332, 3605189; 504347, 

3605165; 504372, 3605163; 504405, 

3605173; 504429, 3605160; 504432, 

3605139; 504454, 3605119; 504474, 

3605134; 504505, 3605127; 504533, 

3605097; 504559, 3605077; 504597, 

3605074; 504629, 3605076; 504630, 

3604936; 504630, 3604918; 504629, 

3604782; 504627, 3604782; 504627, 

3604746; 504626, 3604744; 504627, 

3604742; 504626, 3604631; 504603, 

3604604; 504587, 3604590; 504573, 

3604589; 503692, 3604599; 503641, 

3604600; 503620, 3604621; 503508, 

3604831; 503453, 3604971; 503470, 

3604979; 503500, 3604973; 503517, 

3604970; 503525, 3604977; 503534, 

3604982; 503556, 3604994; 503626, 

3604992; 503626, 3605008; 503626, 

3605032; 503628, 3605033; 503628, 

3605033; 503705, 3605099; 503742, 

3605171; 503743, 3605172; 503754, 

3605194. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 503241, 3604951; 503260, 

3604945; 503260, 3604964; 503275, 

3604981; 503314, 3604988; 503319, 

3604989; 503389, 3604822; 503508, 

3604612; 503537, 3604561; 503567, 

3604506; 503620, 3604411; 503620, 

3604400; 503619, 3604330; 503617, 

3604074; 503617, 3603990; 503609, 

3603990; 503569, 3603990; 503464, 

3603991; 502923, 3603996; 502813, 

3603997; 502813, 3603997; 502800, 

3604601; 502800, 3604620; 502799, 

3604653; 502800, 3604654; 502820, 

3604686; 502830, 3604730; 502835, 

3604781; 502836, 3604804; 502994, 

3604803; 502991, 3604794; 503003, 

3604742; 503041, 3604705; 503064, 

3604692; 503074, 3604694; 503104, 

3604726; 503111, 3604741; 503137, 

3604801; 503208, 3604801; 503208, 

3604953. 

(iii) Subunit 5C. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 505948, 3603807; 505970, 

3603764; 505991, 3603750; 506009, 

3603736; 505983, 3603699; 505954, 

3603652; 505908, 3603585; 505841, 

3603550; 505808, 3603538; 505522, 

3603537; 505458, 3603536; 505450, 

3603546; 505435, 3603553; 505408, 

3603570; 505401, 3603574; 505369, 

3603601; 505358, 3603624; 505365, 

3603650; 505375, 3603667; 505374, 

3603667; 505390, 3603794; 505391, 

3603794; 505416, 3603798; 505467, 

3603821; 505484, 3603845; 505500, 

3603876; 505487, 3603903; 505566, 

3604008; 505566, 3604011; 505568, 

3604010; 505578, 3604030; 505600, 

3604057; 505623, 3604065; 505623, 

3604065; 505622, 3604070; 505617, 

3604088; 505625, 3604130; 505632, 

3604141; 505633, 3604141; 505633, 

3604141; 505641, 3604152; 505675, 

3604184; 505720, 3604211; 505732, 

3604218; 505732, 3604218; 505732, 

3604218; 505785, 3604243; 505820, 

3604252; 505844, 3604235; 505902, 

3604197; 505948, 3604161; 505958, 

3604137; 505958, 3604117; 505946, 

3604091; 505926, 3604057; 505920, 

3604041; 505929, 3604037; 505942, 

3604028; 505949, 3604021; 505955, 

3604011; 505961, 3603997; 505959, 

3603982; 505951, 3603973; 505948, 

3603966; 505942, 3603961; 505929, 

3603951; 505914, 3603946; 505912, 

3603945; 505912, 3603928; 505926, 

3603866; 505936, 3603840. 

(iv) Subunit 5D. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 509019, 3602417; 509019, 

3602284; 509015, 3602132; 509048, 

3602002; 509135, 3601973; 509203, 

3602071; 509235, 3602133; 509236, 

3602136; 509268, 3602255; 509270, 

3602335; 509272, 3602407; 509308, 

3602461; 509348, 3602490; 509438, 

3602540; 509604, 3602573; 509727, 

3602641; 509821, 3602670; 509926, 

3602613; 510009, 3602537; 510009, 

3602450; 509976, 3602327; 509915, 

3602212; 509832, 3602096; 509727, 

3601865; 509712, 3601746; 509692, 

3601743; 509659, 3601737; 509628, 

3601732; 509604, 3601726; 509576, 

3601713; 509533, 3601697; 509504, 

3601687; 509419, 3601669; 509357, 

3601654; 509354, 3601654; 509315, 

3601643; 509277, 3601623; 509010, 

3601592; 508505, 3601541; 508494, 

3601540; 508266, 3601517; 508266, 

3601517; 508266, 3601517; 508265, 

3601517; 507688, 3601459; 507688, 

3601459; 507534, 3601443; 507508, 

3601733; 507507, 3601736; 507509, 

3601735; 507571, 3601753; 507517, 

3601850; 507484, 3601937; 507560, 

3601995; 507589, 3602056; 507582, 

3602147; 507614, 3602241; 507654, 

3602208; 507690, 3602147; 507719, 

3602172; 507730, 3602248; 507737, 

3602331; 507748, 3602410; 507787, 

3602450; 507813, 3602403; 507860, 

3602320; 507921, 3602190; 507983, 

3602049; 508003, 3602033; 508113, 

3601944; 508141, 3601999; 508161, 

3602070; 508181, 3602147; 508217, 

3602168; 508243, 3602118; 508279, 

3602013; 508394, 3601901; 508524, 

3601901; 508554, 3601918; 508651, 

3601973; 508712, 3602061; 508719, 

3602071; 508719, 3602165; 508719, 

3602255; 508745, 3602302; 508795, 

3602414; 508819, 3602464; 508839, 

3602504; 508867, 3602504; 508887, 

3602499; 508907, 3602494; 508936, 

3602486; 509019, 3602425. 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70709 

(v) Subunit 5F. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 500168, 3603213; 500175, 

3603212; 500176, 3603212; 500176, 

3603205; 500175, 3603200; 500174, 

3603154; 500170, 3603022; 500168, 

3602973; 500167, 3602921; 500166, 

3602890; 500165, 3602890; 500150, 

3602901; 500145, 3602889; 500144, 

3602888; 500084, 3602881; 500029, 

3602874; 500047, 3602855; 500052, 

3602849; 500042, 3602844; 500028, 

3602840; 500014, 3602839; 500000, 

3602840; 499992, 3602842; 499987, 

3602844; 499974, 3602850; 499969, 

3602853; 499961, 3602857; 499950, 

3602865; 499940, 3602875; 499933, 

3602885; 499942, 3602885; 499947, 

3602885; 499952, 3602885; 499956, 

3602890; 499956, 3602971; 499956, 

3602974; 499956, 3602992; 499956, 

3603141; 499964, 3603142; 500014, 

3603147; 500048, 3603151; 500046, 

3603200; 500046, 3603215; 500046, 

3603220; 500164, 3603213. Land 

bounded by the following UTM NAD27 

coordinates (E,N): 499760, 3602958; 

499763, 3602950; 499763, 3602887; 

499792, 3602887; 499808, 3602860; 

499825, 3602835; 499861, 3602824; 

499904, 3602816; 499951, 3602808; 

499986, 3602804; 500000, 3602800; 

500003, 3602796; 500004, 3602796; 

500018, 3602793; 500030, 3602787; 

500042, 3602779; 500052, 3602769; 

500060, 3602758; 500066, 3602745; 

500069, 3602731; 500069, 3602728; 

500070, 3602718; 500070, 3602716; 

500076, 3602703; 500080, 3602689; 

500081, 3602676; 500080, 3602662; 

500076, 3602648; 500070, 3602636; 

500062, 3602624; 500052, 3602614; 

500041, 3602606; 500028, 3602600; 

500026, 3602600; 500025, 3602597; 

500019, 3602585; 500011, 3602573; 

500001, 3602564; 500000, 3602563; 

499990, 3602556; 499977, 3602550; 

499965, 3602546; 499963, 3602527; 

499972, 3602500; 499975, 3602477; 

499969, 3602456; 499952, 3602435; 

499929, 3602421; 499913, 3602434; 

499909, 3602430; 499897, 3602422; 

499895, 3602421; 499891, 3602411; 

499891, 3602373; 499888, 3602336; 

499887, 3602329; 499876, 3602304; 

499862, 3602296; 499828, 3602282; 

499813, 3602276; 499788, 3602265; 

499750, 3602262; 499728, 3602264; 

499717, 3602275; 499710, 3602283; 

499706, 3602313; 499684, 3602337; 

499685, 3602340; 499698, 3602361; 

499703, 3602395; 499702, 3602396; 

499696, 3602408; 499695, 3602410; 

499692, 3602422; 499692, 3602436; 

499692, 3602444; 499691, 3602448; 

499675, 3602476; 499694, 3602512; 

499724, 3602552; 499748, 3602585; 

499763, 3602614; 499765, 3602639; 

499763, 3602641; 499745, 3602636; 

499706, 3602616; 499662, 3602599; 

499641, 3602608; 499629, 3602639; 

499623, 3602686; 499599, 3602723; 

499595, 3602715; 499598, 3602705; 

499600, 3602690; 499598, 3602677; 

499594, 3602663; 499592, 3602659; 

499591, 3602656; 499588, 3602651; 

499580, 3602639; 499577, 3602636; 

499577, 3602589; 499586, 3602524; 

499588, 3602463; 499563, 3602456; 

499538, 3602479; 499502, 3602507; 

499483, 3602555; 499471, 3602590; 

499437, 3602611; 499431, 3602650; 

499429, 3602688; 499407, 3602712; 

499395, 3602747; 499389, 3602793; 

499385, 3602832; 499373, 3602870; 

499351, 3602865; 499347, 3602855; 

499328, 3602823; 499318, 3602784; 

499302, 3602767; 499276, 3602768; 

499254, 3602783; 499225, 3602803; 

499224, 3602803; 499224, 3602802; 

499232, 3602791; 499238, 3602778; 

499242, 3602764; 499247, 3602766; 

499260, 3602767; 499267, 3602766; 

499274, 3602766; 499278, 3602765; 

499281, 3602764; 499288, 3602763; 

499292, 3602761; 499294, 3602761; 

499306, 3602759; 499318, 3602753; 

499330, 3602745; 499340, 3602735; 

499348, 3602724; 499353, 3602711; 

499357, 3602698; 499358, 3602684; 

499358, 3602681; 499358, 3602680; 

499360, 3602666; 499358, 3602652; 

499355, 3602638; 499350, 3602629; 

499361, 3602628; 499374, 3602624; 

499387, 3602618; 499398, 3602610; 

499407, 3602602; 499409, 3602601; 

499416, 3602589; 499422, 3602576; 

499425, 3602567; 499426, 3602563; 

499427, 3602549; 499426, 3602535; 

499422, 3602522; 499416, 3602509; 

499411, 3602501; 499417, 3602494; 

499425, 3602483; 499428, 3602477; 

499431, 3602474; 499441, 3602465; 

499449, 3602453; 499455, 3602440; 

499458, 3602431; 499459, 3602427; 

499460, 3602413; 499459, 3602399; 

499455, 3602386; 499449, 3602373; 

499441, 3602362; 499431, 3602352; 

499424, 3602347; 499425, 3602346; 

499460, 3602319; 499485, 3602289; 

499501, 3602264; 499532, 3602246; 

499549, 3602226; 499553, 3602205; 

499550, 3602183; 499555, 3602176; 

499555, 3602176; 499559, 3602169; 

499561, 3602164; 499565, 3602150; 

499566, 3602136; 499565, 3602122; 

499561, 3602109; 499558, 3602104; 

499555, 3602097; 499547, 3602085; 

499537, 3602075; 499526, 3602067; 

499513, 3602061; 499500, 3602057; 

499486, 3602056; 499472, 3602057; 

499459, 3602061; 499446, 3602067; 

499434, 3602075; 499429, 3602080; 

499422, 3602079; 499408, 3602081; 

499395, 3602084; 499382, 3602090; 

499371, 3602098; 499361, 3602108; 

499353, 3602119; 499347, 3602132; 

499346, 3602136; 499343, 3602145; 

499342, 3602159; 499343, 3602170; 

499343, 3602173; 499347, 3602187; 

499353, 3602199; 499360, 3602210; 

499359, 3602212; 499351, 3602245; 

499356, 3602271; 499347, 3602291; 

499323, 3602295; 499298, 3602298; 

499278, 3602309; 499269, 3602305; 

499256, 3602301; 499242, 3602300; 

499228, 3602301; 499215, 3602305; 

499202, 3602311; 499190, 3602319; 

499181, 3602329; 499176, 3602335; 

499184, 3602299; 499187, 3602288; 

499176, 3602307; 499174, 3602310; 

499156, 3602340; 499154, 3602344; 

499137, 3602396; 499134, 3602404; 

499133, 3602407; 499113, 3602496; 

499110, 3602510; 499107, 3602523; 

499106, 3602527; 499105, 3602531; 

499082, 3602625; 499077, 3602646; 

499075, 3602652; 499075, 3602668; 

499072, 3602728; 499072, 3602735; 

499071, 3602748; 499075, 3602763; 

499088, 3602809; 499090, 3602814; 

499096, 3602835; 499115, 3602853; 

499119, 3602857; 499137, 3602874; 

499163, 3602885; 499198, 3602900; 

499200, 3602901; 499215, 3602907; 

499243, 3602919; 499245, 3602920; 

499251, 3602920; 499308, 3602924; 

499316, 3602925; 499327, 3602922; 

499373, 3602911; 499437, 3602860; 

499440, 3602857; 499457, 3602838; 

499463, 3602838; 499558, 3602840; 

499558, 3602990; 499661, 3602989; 

499737, 3602987. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 498628, 3602069; 498638, 

3602063; 498692, 3602024; 498727, 

3601981; 498745, 3601957; 498752, 

3601948; 498759, 3601937; 498766, 

3601929; 498767, 3601929; 498780, 

3601925; 498793, 3601919; 498804, 

3601911; 498814, 3601901; 498822, 

3601890; 498828, 3601877; 498832, 

3601864; 498832, 3601863; 498832, 

3601855; 498868, 3601832; 498873, 

3601829; 498923, 3601788; 498966, 

3601760; 498973, 3601760; 499043, 

3601753; 499149, 3601715; 499155, 

3601713; 499221, 3601690; 499266, 

3601661; 499266, 3601661; 499307, 

3601634; 499343, 3601618; 499343, 

3601618; 499325, 3601653; 499324, 

3601659; 499324, 3601659; 499320, 

3601682; 499346, 3601698; 499389, 

3601697; 499424, 3601689; 499449, 

3601704; 499483, 3601715; 499517, 

3601715; 499532, 3601732; 499547, 

3601770; 499559, 3601784; 499585, 

3601800; 499608, 3601782; 499633, 

3601747; 499659, 3601712; 499714, 

3601684; 499763, 3601668; 499792, 

3601630; 499824, 3601610; 499838, 

3601603; 499848, 3601619; 499896, 

3601624; 499940, 3601606; 499958, 

3601597; 499984, 3601634; 500021, 

mstockstill on PROD1PC66 with RULES2

70710 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

3601684; 500044, 3601716; 500045, 

3601719; 500045, 3601719; 500089, 

3601730; 500190, 3601721; 500242, 

3601714; 500245, 3601710; 500249, 

3601711; 500249, 3601709; 500267, 

3601635; 500267, 3601634; 500274, 

3601604; 500294, 3601588; 500303, 

3601557; 500308, 3601530; 500323, 

3601507; 500342, 3601488; 500340, 

3601466; 500334, 3601439; 500341, 

3601411; 500350, 3601380; 500375, 

3601350; 500380, 3601319; 500372, 

3601300; 500372, 3601299; 500369, 

3601300; 500352, 3601304; 500322, 

3601311; 500298, 3601309; 500279, 

3601300; 500274, 3601298; 500267, 

3601300; 500248, 3601308; 500211, 

3601326; 500184, 3601327; 500163, 

3601321; 500163, 3601320; 500154, 

3601304; 500152, 3601300; 500149, 

3601296; 500133, 3601264; 500120, 

3601254; 500108, 3601231; 500107, 

3601230; 500107, 3601229; 500104, 

3601204; 500064, 3601189; 500030, 

3601181; 500003, 3601183; 499982, 

3601184; 499924, 3601177; 499905, 

3601168; 499878, 3601149; 499852, 

3601133; 499822, 3601134; 499757, 

3601145; 499711, 3601147; 499651, 

3601146; 499590, 3601148; 499557, 

3601151; 499556, 3601151; 499540, 

3601152; 499512, 3601153; 499500, 

3601152; 499471, 3601148; 499429, 

3601140; 499380, 3601146; 499345, 

3601135; 499317, 3601110; 499269, 

3601093; 499249, 3601100; 499239, 

3601146; 499227, 3601146; 499194, 

3601145; 499158, 3601143; 499137, 

3601133; 499129, 3601107; 499124, 

3601078; 499098, 3601074; 499074, 

3601079; 499061, 3601055; 499065, 

3601024; 499064, 3600987; 499049, 

3600935; 499018, 3600891; 498982, 

3600880; 498970, 3600869; 498914, 

3600841; 498851, 3600818; 498757, 

3600792; 498667, 3600774; 498571, 

3600766; 498528, 3600778; 498484, 

3600804; 498435, 3600849; 498407, 

3600889; 498376, 3600936; 498349, 

3600957; 498309, 3600976; 498270, 

3600995; 498249, 3600977; 498217, 

3600951; 498210, 3600920; 498202, 

3600891; 498203, 3600889; 498204, 

3600704; 498208, 3600700; 498208, 

3600700; 498208, 3600699; 498221, 

3600669; 498234, 3600637; 498233, 

3600631; 497938, 3600602; 497938, 

3600539; 497930, 3600538; 497768, 

3600522; 497762, 3600531; 497744, 

3600568; 497727, 3600599; 497726, 

3600600; 497711, 3600627; 497687, 

3600650; 497647, 3600666; 497616, 

3600687; 497606, 3600714; 497602, 

3600738; 497622, 3600756; 497656, 

3600760; 497697, 3600761; 497738, 

3600776; 497761, 3600802; 497790, 

3600834; 497827, 3600868; 497842, 

3600880; 497864, 3600920; 497917, 

3601050; 497926, 3601090; 497924, 

3601089; 497922, 3601094; 497923, 

3601094; 497923, 3601099; 497923, 

3601136; 497924, 3601169; 497924, 

3601201; 497924, 3601264; 497924, 

3601265; 497925, 3601391; 497925, 

3601442; 497926, 3601682; 497926, 

3601686; 497940, 3601685; 497983, 

3601684; 498048, 3601683; 498275, 

3601679; 498282, 3601678; 498285, 

3601725; 498295, 3601889; 498304, 

3602048; 498306, 3602073; 498614, 

3602069; 498615, 3602069. 

(vi) Subunit 5G. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 499163, 3604679; 499168, 

3604677; 499169, 3604676; 499169, 

3604671; 499174, 3604638; 499175, 

3604631; 499177, 3604618; 499175, 

3604601; 499173, 3604575; 499176, 

3604567; 499190, 3604533; 499200, 

3604524; 499227, 3604500; 499242, 

3604487; 499250, 3604456; 499251, 

3604452; 499286, 3604445; 499299, 

3604469; 499543, 3604452; 499556, 

3604416; 499565, 3604389; 499629, 

3604368; 499699, 3604386; 499700, 

3604385; 499744, 3604322; 499744, 

3604300; 499745, 3604266; 499747, 

3604175; 499748, 3604122; 499748, 

3604122; 499749, 3604100; 499750, 

3604061; 499739, 3604057; 499700, 

3604042; 499648, 3604021; 499618, 

3604022; 499549, 3604024; 499533, 

3604008; 499525, 3604000; 499500, 

3603974; 499440, 3603913; 499439, 

3603900; 499431, 3603830; 499429, 

3603817; 499404, 3603839; 499398, 

3603849; 499369, 3603891; 499356, 

3603915; 499337, 3603927; 499328, 

3603924; 499305, 3603918; 499263, 

3603904; 499237, 3603929; 499238, 

3603972; 499247, 3604004; 499245, 

3604008; 499242, 3604014; 499239, 

3604020; 499237, 3604027; 499236, 

3604034; 499235, 3604041; 499235, 

3604048; 499236, 3604055; 499237, 

3604058; 499228, 3604075; 499190, 

3604094; 499200, 3604109; 499218, 

3604140; 499258, 3604151; 499259, 

3604151; 499270, 3604156; 499292, 

3604156; 499325, 3604156; 499377, 

3604142; 499427, 3604118; 499460, 

3604091; 499487, 3604114; 499517, 

3604142; 499557, 3604141; 499570, 

3604141; 499593, 3604115; 499622, 

3604098; 499646, 3604112; 499648, 

3604135; 499644, 3604167; 499640, 

3604175; 499620, 3604210; 499579, 

3604252; 499575, 3604255; 499557, 

3604274; 499551, 3604279; 499533, 

3604297; 499474, 3604333; 499452, 

3604342; 499412, 3604360; 499376, 

3604370; 499328, 3604385; 499258, 

3604401; 499240, 3604407; 499213, 

3604414; 499162, 3604442; 499150, 

3604454; 499138, 3604466; 499124, 

3604500; 499124, 3604501; 499123, 

3604508; 499118, 3604536; 499111, 

3604581; 499110, 3604584; 499109, 

3604607; 499108, 3604623; 499108, 

3604623; 499107, 3604623; 499106, 

3604640; 499103, 3604677; 499103, 

3604682; 499120, 3604694; 499120, 

3604695; 499121, 3604695. Land 

bounded by the following UTM NAD27 

coordinates (E,N): 498823, 3603831; 

498873, 3603865; 498928, 3603903; 

498930, 3603895; 498938, 3603850; 

498912, 3603794; 498870, 3603746; 

498833, 3603700; 498795, 3603670; 

498762, 3603651; 498719, 3603629; 

498670, 3603600; 498663, 3603579; 

498678, 3603566; 498669, 3603545; 

498651, 3603535; 498622, 3603534; 

498625, 3603525; 498634, 3603530; 

498648, 3603533; 498661, 3603535; 

498675, 3603533; 498689, 3603530; 

498701, 3603524; 498713, 3603516; 

498723, 3603506; 498731, 3603495; 

498737, 3603482; 498740, 3603468; 

498741, 3603463; 498747, 3603476; 

498755, 3603484; 498773, 3603507; 

498810, 3603545; 498859, 3603574; 

498901, 3603605; 498943, 3603631; 

498976, 3603632; 499011, 3603645; 

499027, 3603658; 499026, 3603657; 

499024, 3603656; 499010, 3603652; 

498996, 3603651; 498983, 3603652; 

498969, 3603656; 498960, 3603660; 

498956, 3603662; 498945, 3603670; 

498935, 3603680; 498927, 3603691; 

498921, 3603704; 498918, 3603717; 

498916, 3603731; 498916, 3603732; 

498918, 3603745; 498921, 3603759; 

498927, 3603771; 498935, 3603783; 

498945, 3603792; 498956, 3603800; 

498969, 3603806; 498983, 3603810; 

498988, 3603810; 498996, 3603811; 

499010, 3603810; 499024, 3603806; 

499036, 3603800; 499048, 3603792; 

499058, 3603783; 499066, 3603771; 

499072, 3603759; 499075, 3603745; 

499076, 3603731; 499075, 3603717; 

499072, 3603704; 499066, 3603691; 

499058, 3603680; 499056, 3603679; 

499082, 3603687; 499082, 3603687; 

499088, 3603650; 499088, 3603612; 

499094, 3603574; 499107, 3603535; 

499120, 3603511; 499139, 3603492; 

499127, 3603448; 499102, 3603430; 

499075, 3603416; 499056, 3603387; 

499061, 3603365; 499101, 3603365; 

499143, 3603379; 499174, 3603384; 

499205, 3603385; 499211, 3603370; 

499223, 3603341; 499229, 3603313; 

499237, 3603306; 499241, 3603296; 

499242, 3603293; 499246, 3603283; 

499249, 3603265; 499248, 3603257; 

499248, 3603254; 499247, 3603250; 

499247, 3603249; 499244, 3603249; 

499218, 3603250; 499214, 3603250; 

499024, 3603257; 499021, 3603257; 

499021, 3603258; 499023, 3603301; 

499025, 3603366; 499026, 3603409; 

499067, 3603488; 499062, 3603580; 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70711 

499036, 3603611; 499033, 3603608; 

499030, 3603605; 498978, 3603558; 

498955, 3603537; 498939, 3603507; 

498935, 3603498; 498891, 3603486; 

498787, 3603476; 498783, 3603476; 

498784, 3603469; 498796, 3603264; 

498780, 3603265; 498746, 3603266; 

498638, 3603269; 498631, 3603269; 

498450, 3603275; 498389, 3603277; 

498348, 3603279; 498341, 3603279; 

498341, 3603310; 498341, 3603354; 

498340, 3603460; 498340, 3603493; 

498339, 3603675; 498466, 3603673; 

498564, 3603672; 498745, 3603667; 

498786, 3603788; 498788, 3603795; 

498793, 3603800; 498800, 3603808; 

498818, 3603827. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 499520, 3603710; 499537, 

3603690; 499502, 3603686; 499500, 

3603686; 499465, 3603682; 499465, 

3603676; 499467, 3603527; 499468, 

3603437; 499470, 3603335; 499470, 

3603331; 499475, 3603330; 499515, 

3603321; 499527, 3603292; 499528, 

3603290; 499542, 3603257; 499546, 

3603249; 499537, 3603249; 499468, 

3603247; 499445, 3603247; 499443, 

3603247; 499367, 3603246; 499358, 

3603246; 499295, 3603248; 499267, 

3603249; 499267, 3603249; 499267, 

3603250; 499268, 3603254; 499276, 

3603292; 499277, 3603296; 499285, 

3603334; 499289, 3603354; 499297, 

3603389; 499309, 3603417; 499330, 

3603436; 499349, 3603447; 499351, 

3603462; 499353, 3603474; 499347, 

3603487; 499328, 3603492; 499281, 

3603507; 499260, 3603569; 499265, 

3603615; 499261, 3603624; 499258, 

3603652; 499257, 3603663; 499255, 

3603681; 499265, 3603698; 499283, 

3603709; 499294, 3603710; 499300, 

3603714; 499312, 3603709; 499313, 

3603709; 499328, 3603706; 499332, 

3603704; 499348, 3603695; 499382, 

3603690; 499383, 3603690; 499430, 

3603695; 499486, 3603704; 499497, 

3603706. 

(vii) Subunit 5H. Land bounded by 

the following UTM NAD27 coordinates 

(E,N): 507788, 3609712; 507858, 

3609742; 507950, 3609771; 508044, 

3609778; 508178, 3609744; 508218, 

3609710; 508262, 3609710; 508280, 

3609740; 508330, 3609757; 508397, 

3609740; 508403, 3609790; 508604, 

3609787; 508699, 3609699; 508787, 

3609559; 508746, 3609407; 508557, 

3609308; 508392, 3609308; 508090, 

3609118; 507643, 3609056; 507269, 

3609054; 507257, 3609091; 507269, 

3609148; 507269, 3609191; 507290, 

3609251; 507329, 3609280; 507389, 

3609280; 507367, 3609319; 507310, 

3609369; 507310, 3609419; 507338, 

3609448; 507401, 3609470; 507382, 

3609518; 507394, 3609547; 507391, 

3609636; 507388, 3609713. 

(viii) Subunit 5I. Land bounded by the 

following UTM NAD27 coordinates 

(E,N): 522790, 3603588; 522715, 

3603505; 522712, 3603500; 522700, 

3603500; 522700, 3603479; 522699, 

3603478; 522663, 3603371; 522692, 

3603132; 522639, 3603116; 522566, 

3603131; 522529, 3603165; 522517, 

3603225; 522514, 3603355; 522496, 

3603446; 522488, 3603478; 522497, 

3603494; 522563, 3603563; 522641, 

3603627; 522720, 3603689; 522759, 

3603708; 522791, 3603699; 522800, 

3603685; 522800, 3603617. 

(ix) Note: Map of Unit 5, Subunits 5A, 

5B, 5C, 5D, and 5H (Map 10) follows: 

BILLING CODE 4310–55–P 

mstockstill on PROD1PC66 with RULES2

70712 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

(x) Note: Map of Unit 5, Subunits 5F 

and 5G (Map 11) follows: 


mstockstill on PROD1PC66 with RULES2ER12DE07.009</GPH>
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 70713 

(xi) Note: Map of Unit 5, Subunit 5I 

(Map 12) follows: 


mstockstill on PROD1PC66 with RULES2ER12DE07.010</GPH>
70714 Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations 

* * * * * Dated: November 30, 2007. 

Mitch Butler, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 07–5972 Filed 12–11–07; 8:45 am] 

BILLING CODE 4310–55–C 


mstockstill on PROD1PC66 with RULES2ER12DE07.011</GPH>