[Federal Register Volume 72, Number 238 (Wednesday, December 12, 2007)]
[Rules and Regulations]
[Pages 70648-70714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5972]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

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

[[Page 70648]]


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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.

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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

[[Page 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

[[Page 70650]]

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 on-going 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

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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

[[Page 70652]]

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 Central-Coastal 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 Central-Coastal 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 Central-Coastal 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

[[Page 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 off-road 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

[[Page 70654]]

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 human-caused 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)).

[[Page 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

[[Page 70656]]

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 non-military land, remaining in San 
Diego County. The area contains several hundred vernal pools occupied 
by San Diego fairy shrimp and other sensitive

[[Page 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 State-owned 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

[[Page 70658]]

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

[[Page 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

[[Page 70660]]

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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           San Diego
                                     Area identification    Included in  fairy shrimp                             2003 Proposed
                                      used in this rule     Appendix F     detected     2000  Designation of     revision to the     2007 Final revised
               Unit                 (naming convention in    or G 1998     following     critical habitat*      critical habitat      critical habitat
                                       recovery plan)*       recovery    the recovery                             designation*          designation*
                                                               plan          plan
--------------------------------------------------------------------------------------------------------------------------------------------------------
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               X
                                     Park.
Unit 2 North coastal San Diego      MCB Camp Pendleton               X   ............  Subunit 2A...........  Subunit 2A..........  Exempt under
 County.                             (San Onofre State                                                                               4(a)(3).
                                     Lease Area).
                                    MCB Camp Pendleton               X   ............  Excluded under         Subunits 2B, 2C.....  Exempt under
                                     (Cockleburr Mesa).                                 4(b)(2).                                     4(a)(3).
                                    MCB Camp Pendleton (O            X   ............  Excluded under         Considered            Exempt under
                                     Neil).                                             4(b)(2).               essential; not        4(a)(3).
                                                                                                               proposed.
                                    MCB Camp Pendleton               X   ............  Excluded under         Considered            Exempt under
                                     (Las Pulgas, San                                   4(b)(2).               essential; not        4(a)(3).
                                     Mateo, Stuart Mesa).                                                      proposed.

[[Page 70661]]

 
                                    MCB Camp Pendleton               X   ............  Excluded under         Subunits 2D, 2E, 2F.  Exempt under
                                     (Wire Mountain                                     4(b)(2).                                     4(a)(3).
                                     Housing).
                                    Palomar Airport......            X   ............  Subunit 2C...........  Determined not to be
                                                                                                               essential.
                                    Poinsettia Lane                  X   ............  Subunit 2B...........  Subunit 2G..........  Subunit 2G.
                                     Commuter Station
                                     (JJ1, JJ3).
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-             X             X   Subunit 3C...........  Subunit 3C..........  Subunit 3C.
                                     10).
                                    San Marcos (L 11-13,             X             X   Subunit 3D...........  Subunit 3D..........  Subunit 3D.
                                     19).
                                    San Marcos (L7)......            X   ............  Determined not to be
                                                                                        essential.
                                    San Marcos (L8, 17-              X
                                     18, 20).
                                    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    Del Mar Mesa (H18-23)            X             X   Subunit 4A...........  Subunit 4A..........  Subunit 4A/B.
 County.
                                    Del Mar Mesa (H1-10,             X             X   Subunit 4A...........  Subunit 4B..........  Subunit 4A/B.
                                     13-15,
                                     Pe[ntilde]asquitos
                                     North/Del Mar Mesa).
                                    Murphy Canyon Navy               X   ............  Subunit 4C...........  Subunit 4C..........  Subunit 4C.
                                     Housing (G1-2
                                     Tierrasanta South,
                                     G3).
                                    Chollas Heights Navy             X   ............  Subunit 4D...........  Subunit 4D..........  Subunit 4D.
                                     Housing.
                                    Carmel Mountain (H               X   ............  Considered essential;  Considered            Subunits 4E, 4F.
                                     (undescribed)).                                    not proposed.          essential; not
                                                                                                               proposed.
                                    Mira Mesa North (B)..            X   ............  Considered essential;
                                                                                        not proposed.
                                    Tierra Alta (B5-6)...            X   ............  Subunit 4B...........  Considered            Subunit 4G.
                                                                                                               essential; not
                                                                                                               proposed.
                                    Lopez Ridge (B7-8)...            X   ............  Subunit 4B...........  Considered            Subunit 4H.
                                                                                                               essential; not
                                                                                                               proposed.
                                    Winterwood (C10-16)..            X   ............  Considered essential;  Considered            Subunit 4I.
                                                                                        not proposed.          essential; not
                                                                                                               proposed.
                                    Fieldstone (C17-18)..  ............  ............  .....................  Considered            Determined not to be
                                                                                                               essential; not        essential.
                                                                                                               proposed.
                                    Mira Mesa Central                X
                                     (C26).
                                    Maddox (Maddox Park).  ............  ............  .....................  Considered            Determined not to be
                                                                                                               essential; not        essential.
                                                                                                               proposed.
                                    Carroll Canyon (D5-8)  ............            X   Considered essential;  Considered            Subunit 4J.
                                                                                        not proposed.          essential; not
                                                                                                               proposed.
                                    MCAS Miramar (A4; F1-            X   ............  Not included under     Considered            Exempt under
                                     27; I7; U1-13; U                                   3(5)(A).               essential; not        4(a)(3).
                                     North; Z1-3, Z6; Z7;                                                      proposed.
                                     Z10; AA1-13; EE1-2;
                                     FF1-2; HH1-4 and RR1-
                                     2).
                                    Miramar Industrial...            X
                                    Nobel Drive (X5).....            X             X

[[Page 70662]]

 
                                    New Century (BB2)....            X   ............  Considered essential;
                                                                                        not proposed.
                                    SANDER and Magnatron             X   ............  Excluded under         Considered            Subunit 4K.
                                     (U15, SANDER).                                     4(b)(2).               essential; not
                                                                                                               proposed.
                                    Cubic (U19, Cubic                X   ............  Excluded under         Considered            Subunit 4L.
                                     Pools).                                            4(b)(2).               essential; not
                                                                                                               proposed.
                                    Montgomery Field (N1-            X             X   Considered essential;  Considered            Subunit 4M.
                                     4, 6).                                             not proposed.          essential; not
                                                                                                               proposed.
Unit 5 South San Diego County.....  Otay Mesa (J26)......            X             X   Excluded under         Considered            Subunit 5A.
                                                                                        4(b)(2).               essential; not
                                                                                                               proposed.
                                    Otay Mesa (J23-25)...            X             X   Considered essential;  Considered            Excluded under
                                                                                        not proposed.          essential; not        4(b)(2).
                                                                                                               proposed.
                                    Otay Mesa (J29-30)...            X   ............  Considered essential;  Considered            Subunit 5B.
                                                                                        not proposed.          essential; not
                                                                                                               proposed.
                                    Otay Mesa (J22)......  ............            X   Subunit 5C...........  Subunit 5C..........  Subunit 5C.
                                    Otay Mesa (J27-28)...            X             X   Considered essential;
                                                                                        not proposed.
                                    Otay Mesa............  ............            X   .....................  Considered            Subunit 5D.
                                                                                                               essential; not
                                                                                                               proposed.
                                    Naval Base Coronado,   ............            X   .....................  Considered            Exempt under
                                     Naval Radar                                                               essential; not        4(a)(3).
                                     Receiving Facility.                                                       proposed.
                                    Naval Base Coronado,             X   ............  Subunit 5D...........  Subunit 5E..........  Exempt under
                                     Navy Outlying                                                                                   4(a)(3).
                                     Landing Field
                                     (Tijuana Estuary).
                                    Otay Mesa (J11-21)...            X   ............  Considered essential;  Considered            Subunit 5F.
                                                                                        not proposed.          essential; not
                                                                                                               proposed.
                                    Otay Mesa (J2, 5, 7).            X   ............  Considered essential;  Considered            Subunit 5G.
                                                                                        not proposed.          essential; not
                                                                                                               proposed.
                                    Otay River Valley                X   ............  Subunit 5B...........  Considered            Determined not to be
                                     (K1).                                                                     essential; not        essential.
                                                                                                               proposed.
                                    Otay River Valley                X   ............  Determined not to be
                                     (K2).                                              essential.
                                    Otay River Valley                X
                                     (K6).
                                    Lower Otay Reservoir   ............            X   .....................  Considered            Subunit 5H.
                                     (K3-5).                                                                   essential; not
                                                                                                               proposed.
                                    Otay Lakes Road (K7).            X   ............  Subunit 5A...........  Determined not to be
                                                                                                               essential.
                                    Marron Valley........  ............            X   .....................  Considered            Subunit 5I.
                                                                                                               essential; not
                                                                                                               proposed.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* 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.


[[Page 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

[[Page 70664]]

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

[[Page 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

[[Page 70666]]

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.

[[Page 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    4 ac (2 ha).....................  4 ac (2 ha).....................  0 ac (0 ha).
                               Plan Area.
1B..........................  Costa Mesa Fairview   43 ac (17 ha)...................  43 ac (17 ha)...................  0 ac (0 ha).
                               Park.
1C..........................  Newport-Banning       15 ac (6 ha)....................  0 ac (0 ha).....................  15 ac (6 ha).
                               Ranch.
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,   17 ac (9 ha)....................  17 ac (9 ha)....................  0 ac (0 ha).
                               San Onofre State
                               Lease Area.
2B..........................  MCB Camp Pendleton,   43 ac (17 ha)...................  43 ac (17 ha)...................  0 ac (0 ha).
                               Cockleburr Mesa.
2C..........................  MCB Camp Pendleton,   132 ac (53 ha)..................  132 ac (53 ha)..................  0 ac (0 ha).
                               Cockleburr Mesa.
2D..........................  MCB Camp Pendleton,   155 ac (63 ha)..................  155 ac (63 ha)..................  0 ac (0 ha).
                               Wire Mountain
                               Housing.
2E..........................  MCB Camp Pendleton,   18 ac (7 ha)....................  18 ac (7 ha)....................  0 ac (0 ha).
                               Wire Mountain
                               Housing.
2F..........................  MCB Camp Pendleton,   203 ac (82 ha)..................  203 ac (82 ha)..................  0 ac (0 ha).
                               Wire Mountain
                               Housing.
2G..........................  Poinsettia Lane       6 ac (3 ha).....................  0 ac (0 ha).....................  6 ac (3 ha).
                               Commuter Station.
                              MCB Camp Pendleton,   7182 ac (2906 ha)...............  7182 ac (2906 ha)...............  0 ac (0 ha).
                               training areas.
                             ---------------------------------------------------------------------------------------------------------------------------
    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,           17 ac (7 ha)....................  0 ac (0 ha).....................  17 ac (7 ha).
                               northeast unit.
3C..........................  San Marcos,           63 ac (25 ha)...................  0 ac (0 ha).....................  63 ac (25 ha).
                               southwest unit.
3D..........................  San Marcos,           5 ac (2 ha).....................  0 ac (0 ha).....................  5 ac (2 ha).
                               southeast unit.
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    41 ac (17 ha)...................  0 ac (0 ha).....................  41 ac (17 ha).
                               Housing.
4D..........................  Chollas Heights Navy  16 ac (7 ha)....................  0 ac (0 ha).....................  16 ac (7 ha).
                               Housing.
4E..........................  Carmel Mountain,      32 ac (13 ha)...................  0 ac (0 ha).....................  32 ac (13 ha).
                               west.
4F..........................  Carmel Mountain,      4 ac (2 ha).....................  0 ac (0 ha).....................  4 ac (2 ha).
                               east.
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  234 ac (95 ha)..................  196 ac (79 ha)..................  38 ac (16 ha).
                               unit.
5B..........................  Otay Mesa, north      327 ac (132 ha).................  23 ac (9 ha)....................  304 ac (123 ha).
                               unit.
5C..........................  Otay Mesa, east unit  75 ac (30 ha)...................  0 ac (0 ha).....................  75 ac (30 ha).
5D..........................  Otay Mesa, southeast  391 ac (158 ha).................  0 ac (0 ha).....................  391 ac (158 ha).
                               unit.

[[Page 70668]]

 
5E..........................  Naval Outlying        8 ac (3 ha).....................  8 ac (3 ha).....................  0 ac (0 ha).
                               Landing Field
                               (NOLF).
5F..........................  Otay Mesa, southwest  650 ac (263 ha).................  29 ac (12 ha)...................  621 ac (251 ha).
                               unit.
5G..........................  Otay Mesa, northwest  132 ac (53 ha)..................  0 ac (0 ha).....................  132 ac (53 ha).
                               unit.
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           161 ac (65 ha)..................  161 ac (61 ha)..................  0 ac (0 ha).
                               Receiving Facility
                               (NRRF).
                             ---------------------------------------------------------------------------------------------------------------------------
    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    Private...................  2 ac (1 ha).
                                     Station.
                                                                North County Transit        4 ac (2 ha).
                                                                 District (NCTD).
----------------------------------------------------------------------------------------------------------------
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       35 ac (14 ha).
                                                                 District.
                                                                Private...................  5 ac (2 ha).
----------------------------------------------------------------------------------------------------------------
Unit 4............................  Central Coastal Mesa, San
                                     Diego County.
4A/B..............................  Del Mar Mesa..............  U.S. Fish and Wildlife      41 ac (16 ha).
                                                                 Service.
                                                                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        Department of Defense.....  16 ac (7 ha).
                                     Housing.
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).

[[Page 70669]]

 
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 Newport-Banning 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

[[Page 70670]]

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

[[Page 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 Pe[ntilde]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

[[Page 70672]]

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 Pe[ntilde]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 off-
road 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 Pe[ntilde]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 off-
road 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 Pe[ntilde]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 Pe[ntilde]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

[[Page 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 on-
going 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

[[Page 70674]]

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, off-road 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 off-road vehicle use, and nonnative weed

[[Page 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 off-road 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 
off-road 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:
    <bullet> Can be implemented in a manner consistent with the 
intended purpose of the action,
    <bullet> Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
    <bullet> Are economically and technologically feasible, and

[[Page 70676]]

    <bullet> 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:
    <bullet> An assessment of the ecological needs on the installation, 
including the

[[Page 70677]]

need to provide for the conservation of listed species;
    <bullet> A statement of goals and priorities;
    <bullet> A detailed description of management actions to be 
implemented to provide for these ecological needs; and
    <bullet> 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).

[[Page 70678]]

    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

[[Page 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

[[Page 70680]]

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 Non-Federal 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 non-Federal 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 non-Federal 
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 well-intentioned 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.

[[Page 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

[[Page 70682]]

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-by-project, 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

[[Page 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

[[Page 70684]]

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 off-road 
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-by-project, 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

[[Page 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

[[Page 70686]]

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

[[Page 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

[[Page 70688]]

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

[[Page 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.

[[Page 70690]]

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 post-disaster 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,

[[Page 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 non-Federal 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 case-by-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

[[Page 70692]]

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

0
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]

0
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.

0
2. In Sec.  17.95(h), revise the entry for ``San Diego Fairy Shrimp 
(Branchinecta sandiegonensis)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (h) Crustaceans
* * * * *
    San Diego Fairy Shrimp (Branchinecta sandiegonensis)
    (1) Critical habitat units are depicted for Orange and San Diego 
counties, California, on the maps below.
    (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:
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[[Page 70693]]

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[[Page 70694]]


    (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:

[[Page 70695]]

[GRAPHIC] [TIFF OMITTED] TR12DE07.001


[[Page 70696]]


    (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:

[[Page 70697]]

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[[Page 70698]]

    (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:
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[[Page 70699]]

[GRAPHIC] [TIFF OMITTED] TR12DE07.003

    (ix) Note: Map of Unit 3, Subunits 3E.1, 3E.2, 3E.3, and 3E.4 (Map 
5) follows:

[[Page 70700]]

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[[Page 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,

[[Page 70702]]

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,

[[Page 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

[[Page 70704]]

[GRAPHIC] [TIFF OMITTED] TR12DE07.005

    (xiv) Note: Map of Unit 4, Subunits 4C, 4K, 4L and 4M (Map 7) 
follows:

[[Page 70705]]

[GRAPHIC] [TIFF OMITTED] TR12DE07.006

    (xv) Note: Map of Unit 4, Subunit 4D (Map 8) follows:

[[Page 70706]]

[GRAPHIC] [TIFF OMITTED] TR12DE07.007

    (xvi) Note: Map of Unit 4, Subunits 4E and 4F (Map 9) follows:

[[Page 70707]]

[GRAPHIC] [TIFF OMITTED] TR12DE07.008

BILLING CODE 4310-55-C

[[Page 70708]]

    (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.

[[Page 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,

[[Page 70710]]

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;

[[Page 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

[[Page 70712]]

[GRAPHIC] [TIFF OMITTED] TR12DE07.009

    (x) Note: Map of Unit 5, Subunits 5F and 5G (Map 11) follows:

[[Page 70713]]

[GRAPHIC] [TIFF OMITTED] TR12DE07.010

    (xi) Note: Map of Unit 5, Subunit 5I (Map 12) follows:

[[Page 70714]]

[GRAPHIC] [TIFF OMITTED] TR12DE07.011

* * * * *

    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