[Federal Register: April 22, 2003 (Volume 68, Number 77)]
[Proposed Rules]
[Page 19887-19917]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ap03-25]
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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);
Proposed Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AI71
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: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate new critical habitat units pursuant to the Endangered Species
Act of 1973, as amended (Act), for the San Diego fairy shrimp
(Branchinecta sandiegonensis). The San Diego fairy shrimp is listed as
an endangered species under the Act. A total of approximately 2,468
hectares (6,098 acres) of land within Orange and San Diego counties,
California, are within the boundaries of proposed critical habitat.
Critical habitat receives protection from destruction or adverse
modification through consultation under section 7 of the Act with
regard to actions carried out, funded, or authorized by a Federal
agency. Section 4 of the Act requires us to consider economic and other
relevant impacts when specifying any particular area as critical
habitat.
We are soliciting data and comments from the public on all aspects
of this proposal, including data on economic and other impacts of the
designation, and our approaches for handling any future habitat
conservation plans and Department of Defense installations. We may
revise this proposal prior to final designation to incorporate or
address new information received during the comment period.
The drafting and review of this proposed rule revealed a number of
difficult and complex issues regarding which public comment would be
particularly helpful, especially given the strict court-ordered
deadline pursuant to which this proposal is being published. Therefore,
in addition to the general comments requested above, we are requesting
public comment either in support of or opposition to a number of
specific issues associated with this proposal to assist in development
of a final rule.
DATES: We will accept comments until June 23, 2003. Public hearing
requests must be received by June 6, 2003.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
(1) You may submit written comments and information to the Field
Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 6010 Hidden Valley Road, Carlsbad, CA 92009.
(2) You may also send comments by electronic mail (e-mail) to
FW1SDFS@r1.fws.gov. See the Public Comments Solicited section below for
file format and other information about electronic filing.
(3) You may hand-deliver comments to our Carlsbad Fish and Wildlife
Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road,
Carlsbad, CA 92009.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and
Wildlife Office, at the above address (telephone 760/431-9440;
facsimile 760/431-9618).
SUPPLEMENTARY INFORMATION:
Background
The San Diego fairy shrimp (Branchinecta sandiegonensis) is a small
aquatic crustacean in the order, Anostraca, restricted to vernal pools
in coastal southern California and south to northwestern Baja
California, Mexico. Vernal pools contain water in the winter months
which drains and evaporates giving way to a vernal display of
wildflowers. The San Diego fairy shrimp is a habitat specialist found
in smaller, shallow vernal pools and ephemeral (lasting a short time)
basins that range in depth from approximately 5 to 30 centimeters (cm)
(2 to 12 inches (in)) (Simovich and Fugate 1992; Hathaway and Simovich
1996). Water chemistry is also an important factor in determining fairy
shrimp distribution (Belk 1977; Gonzales et al. 1996). This species
does not occur in riverine or marine waters. All known localities are
below 701 meters (m) (2,300 feet (ft)) and are within 64 kilometers
(km) (40 miles (mi)) of the Pacific Ocean.
San Diego fairy shrimp is one of several Branchinecta species that
occur in southern California (Simovich and Fugate 1992). Other species
of Branchinecta in southern California include the nonlisted versatile
fairy shrimp (B. lindahli) and the federally threatened vernal pool
fairy shrimp (B. lynchi). Male San Diego fairy shrimp are distinguished
from males of other species of Branchinecta by differences found at the
distal (located far from the point of attachment) tip of the second
antennae. Females are distinguishable from females of other species of
Branchinecta by the shape and length of the brood sac, the length of
the ovary, and by the presence of paired dorsolateral (located on the
sides, toward the back) spines on five of the abdominal segments
(Fugate 1993).
Mature individuals lack a carapace (hard outer covering of the head
and thorax) and have a delicate elongate body, large stalked compound
eyes, and 11 pairs of swimming legs. They swim or glide gracefully
upside down by means of complex wavelike beating movements of the legs
that pass from front to back. Adult male San Diego fairy shrimp range
in size from 9 to 16 millimeters (mm) (0.35 to 0.63 in); adult females
are 8 to 14 mm (0.31 to 0.55 in.) long. The second pair of antennae in
males are greatly enlarged and specialized for clasping the females
during copulation, while the second pair of antennae in the females are
cylindrical and elongate. The females carry their eggs in an oval or
elongate ventral brood sac (Eriksen and Belk 1999). Fairy shrimp are
presumed to feed on algae, bacteria, protozoa, rotifers, and bits of
organic matter (Pennak 1989; Eng et al. 1990; Parsick 2002).
Adult San Diego fairy shrimp are usually observed from January to
March; however, in years with early or late rainfall, the hatching
period may be extended. The species hatches and matures within 7 to 14
days, depending on water temperature (Hathaway and Simovich 1996;
Simovich and Hathaway 1997). San Diego fairy shrimp may no longer be
visible after about a month, but animals will continue to hatch if
subsequent rains result in additional water or refilling of the vernal
pools (Branchiopod Research Group 1996). The eggs are either dropped to
the pool bottom or remain in the brood sac until the female dies and
sinks. The ``resting eggs,'' or ``cysts,'' are capable of withstanding
temperature extremes and prolonged drying. When the pools refill in the
same or subsequent rainy seasons, some but not all of the eggs may
hatch. Fairy shrimp egg banks in the soil may be composed of the eggs
from several years of breeding (Donald 1983; Simovich and Hathaway
1997). Simovich and Hathaway (1997) found that vernal pools and
ephemeral wetlands that support anostracans, small aquatic crustaceans
like the San Diego fairy shrimp, and occur in areas with variable
weather conditions or filling periods, may hatch only a fraction of the
total
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cyst (organisms in a resting stage) bank in any given year. Thus, the
San Diego fairy shrimp is adapted to highly variable environments .
San Diego fairy shrimp require functioning vernal pools for their
conservation (Belk 1998). Both the pool basin and the surrounding
watershed are essential for a functioning vernal pool system (Hanes and
Stromberg 1998). Loss of upland vegetation, increased overland flow due
to urban runoff, and alteration of the micro-topography can all alter
the narrow physiological parameters that the San Diego fairy shrimp
requires for survival.
The maintenance of genetic variability is crucial to the survival
of a species with declining populations and a limited range, such as
the San Diego fairy shrimp (Gilpin and Soule 1986; Lesica and Allendorf
1995). Vernal pool complexes throughout the range of the San Diego
fairy shrimp are critical for the conservation of this species.
Likewise, the pools within a multi-pool complex are also important for
the local population of San Diego fairy shrimp to remain viable. Vernal
pool complexes identified as necessary in the Recovery Plan for Vernal
Pools in Southern California must be secured in a configuration that
maintains habitat function and viability. There are several reasons for
this. Each vernal pool complex is unique in soil type, species
composition, and hydrology (Service 1998). This high degree of
variability in habitat combined with the unpredictability of winter
rains (pool filling events) has given rise to a genetic structure
between pool complexes (Davies 1996; Davies et al. 1997). This means
that San Diego fairy shrimp living in one pool complex may not be
adapted to a pool complex elsewhere in the species range. This research
also revealed that within pool complexes there was a low degree of
genetic variability. The genetic structure and low genetic variability
suggests that there is a low degree of gene exchange between different
pool complexes. This research indicates that pool complexes throughout
the range contain unique genetic traits necessary for the conservation
of San Diego fairy shrimp.
The life cycle of the San Diego fairy shrimp is such that in any
single breeding event there may be individuals present from multiple
generations. This has the effect of dampening the effects of genetic
drift and inbreeding that are normally associated with a small
population size. In particular this makes the preservation of existing
vernal pools a high priority for critical habitat designation because
of the cyst banks that are present in natural pools (Belk 1998).
Creation of vernal pools has not been successfully implemented as a
viable measure to compensate for impacts to vernal pools. Restoration
of vernal pools has been successfully completed; however, restoration
must be carefully pursued. Restored pools may lack the multi-
generational cyst bank. In the event that soils are transported from
existing vernal pools to a restoration site, soils may be mixed,
compacted, or otherwise mistreated so that the cyst bank can no longer
function (Hathaway et al. 1996). Thus, restored pools may not exhibit
the necessary genetic dynamics of natural pools and may not contribute
as significantly as natural vernal pools.
Vernal pools have a discontinuous occurrence in several regions of
California (Keeler-Wolf et al. 1995), from as far north as the Modoc
Plateau in Modoc County, south through San Diego County to the
international border with Mexico. Vernal pools form in regions with
Mediterranean climates, where shallow depressions fill with water
during fall and winter rains and then evaporate in the spring (Collie
and Lathrop 1976; Holland 1976, 1988; Holland and Jain 1977, 1988;
Thorne 1984; Zedler 1987; Simovich and Hathaway 1997). The presence of
the surrounding watershed is a vital component of a vernal pool
ecosystem. The term ``watershed'' is commonly associated with riverine
drainages, however, in the context of this discussion the term
``watershed'' refers to the land surrounding a single vernal pool or
vernal pool complex that contributes to the hydrology of the vernal
pools. These watersheds can vary in size from a few hundred meters to
much larger areas around the vernal pools.
In years of high precipitation, overbank flooding from intermittent
streams may augment the amount of water in some vernal pools (Hanes et
al. 1990). Vernal pool studies conducted in the Sacramento Valley
indicate that the contribution of subsurface or overland flows is
significant only in years of high precipitation when pools are already
saturated (Hanes and Stromberg 1996). Downward percolation of water in
vernal pool basins is prevented by the presence of an impervious
subsurface layer, such as a claypan, hardpan, or volcanic stratum
(Holland 1976, 1988). The integrity of both the vernal pool and the
surrounding watershed is crucial to the long term survival and
conservation of the San Diego fairy shrimp.
Researchers have found that vernal pools located in San Diego
County are associated with five soil series types: Huerheuero,
Olivenhain, Placentia, Redding, and Stockpen (Bauder and McMillan
1998). These soil types have a nearly impermeable surface or subsurface
soil layer with a flat or gently sloping topography (Service 1998). Due
to local topography and geology, the pools are usually clustered into
pool complexes (Bauder 1986; Holland and Jain 1977). Pools within a
complex are typically separated by distances on the order of meters,
and may form dense, interconnected mosaics of small pools or a more
sparse scattering of larger pools.
Vernal pool systems are often characterized by different landscape
features including mima mound (miniature mounds) microtopography,
varied pool basin size and depth, and vernal swales (low tract of
marshy land). Vernal pool complexes that support one to many distinct
vernal pools are often interconnected by a shared watershed. Chemistry,
geophysiology, and hydrology influenced by watershed characteristics
determine the distribution of vernal pool species (Dehoney and Lavigne
1984; Eng et al., 1990, Branchiopod Research Group 1996), therefore
ecosystems on which the San Diego fairy shrimp and its vernal pool
habitat depend are best described from a watershed perspective (see
Recovery Criteria 1 and 2 in the Recovery Plan for Vernal Pools of
Southern California, Service 1998). California's vernal pools begin to
fill with the fall and winter rains. Before ponding occurs, there is a
period during which the soil is wetted and the local water table may
rise. Some pools in a complex have a substantial watershed that
contributes to water input; others may fill almost entirely from rain
falling directly into the pool (Hanes and Stromberg, 1998). Even in
pools filled primarily by direct precipitation, subsurface inflows from
surrounding soils can help dampen water level fluctuations during late
winter and early spring (Hanes and Stromberg 1998).
Vernal pools exhibit four major phases--the wetting phase, when
vernal pool soils become saturated; the aquatic phase, when a perched
water table develops within the watershed and the vernal pool contains
water; a waterlogged drying phase, when the vernal pool begins losing
water as a result of evaporation and loss to the surrounding soils but
soil moisture remains high; and the dry phase, when the vernal pool and
underlying soils are completely dry (Keeley and Zedler 1998). Upland
areas within vernal pool watersheds are also an important source of
nutrients to vernal pool organisms. Vernal pool habitats derive most of
their nutrients from detritus, which is
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washed into the pool from adjacent uplands, and these nutrients provide
the foundation for the vernal pool aquatic community food chain
(Eriksen and Belk 1999).
San Diego County supports the largest number of remaining vernal
pools occupied by the San Diego fairy shrimp. Scientists estimated
that, historically, vernal pool soils covered 51,800 hectares (ha) (200
square miles (mi.\2\)) in San Diego County (Bauder and McMillan 1998).
The majority of these pools were destroyed prior to 1990. On the basis
of available information to us at the time the species was listed, we
estimated that fewer than 81 ha (200 acres (ac)) of occupied vernal
pool habitat remained. This calculation was based on the area of the
specific vernal pool basins that contained San Diego fairy shrimp, and
did not include the acreage of the surrounding watersheds. Keeler-Wolf
et al. (1995) concluded that the greatest recent losses of vernal pool
habitat in San Diego County have occurred in Mira Mesa, Rancho
Penasquitos, and Kearny Mesa, which accounted for 73 percent of all the
pools destroyed in the region during the 7-year period between 1979 and
1986. Other substantial losses have occurred in the Otay Mesa area,
where over 40 percent of the vernal pools were destroyed between 1979
and 1990. Similar to San Diego County, vernal pool habitat was once
extensive on the coastal plain of Los Angeles and Orange counties
(Mattoni and Longcore 1997). Unfortunately, there has been a near-total
loss of vernal pool habitat in these areas (Ferren and Pritchett 1988;
Keeler-Wolf et al. 1995). It is estimated that 70 percent of existing
vernal pools occurs on lands managed by the Department of Defense
(Bauder and Weir 1991).
Urban and water development; flood control, highway, and utility
projects; and conversion of wildlands to agricultural use have
eliminated vernal pools and their watersheds in southern California
(Jones and Stokes Associates 1987). Changes in hydrologic patterns,
overgrazing, and off-road vehicle use also impact vernal pools. The
flora and fauna in vernal pools or swales can change if the hydrologic
regime is altered (Bauder 1986). Human activities that reduce the
extent of the watershed or that alter runoff patterns (i.e., amounts
and seasonal distribution of water) may eliminate San Diego fairy
shrimp, reduce their population sizes or reproductive success, or shift
the location of sites inhabited by this species. The California
Department of Fish and Game's Natural Diversity Data Base ranks the
vernal pool habitat type in priority class G1-S1, which denotes natural
communities in the State of California that occur over fewer than 809
ha (2,000 ac) globally.
Previous Federal Action
The San Diego Biodiversity Project in Julian, California; Our Lady
of the Lake University in San Antonio, Texas; and the Biodiversity
Legal Foundation submitted a petition to us, dated March 16, 1992, to
list the San Diego fairy shrimp as an endangered species pursuant to
the Endangered Species Act of 1973, as amended (Act). We received the
petition on March 24, 1992. On August 4, 1994, we published a proposed
rule in the Federal Register (59 FR 39874) to list the San Diego fairy
shrimp as an endangered species. The proposed rule was the first
Federal action on the San Diego fairy shrimp, and also constituted the
12-month petition finding, as required by section 4(b)(3)(B) of the
Act. On February 3, 1997, we published a final rule determining the San
Diego fairy shrimp to be an endangered species (62 FR 4925). The Vernal
Pool Recovery Plan, which included recovery planning for this species,
was published in 1998.
At the time of listing, we concluded that designation of critical
habitat for the San Diego fairy shrimp was not prudent because such
designation would not benefit the species. We were also concerned that
critical habitat designation would likely increase the degree of threat
from vandalism or other human-induced impacts. We were aware of several
instances of apparently intentional habitat destruction that had
occurred during the listing process.
On October 14, 1998, the Southwest Center for Biological Diversity
filed a lawsuit in the U.S. District Court for the Southern District of
California challenging our decision not to designate critical habitat
for the San Diego fairy shrimp. On September 16, 1999, the court
ordered that ``[O]n or before February 29, 2000, the Service shall
submit for publication in the Federal Register, a proposal to withdraw
the existing not prudent critical habitat determination together with a
new proposed critical habitat determination for the San Diego fairy
shrimp'' (Southwest Center for Biodiversity v. United States Department
of the Interior et al., CV 98-1866) (S.D. Cal.).
After reviewing our not-prudent determination, we concluded that
the threats to this species and its habitat from specific instances of
habitat destruction did not outweigh the broader educational, potential
regulatory, and other benefits that designation of critical habitat
would provide for this species. We determined that a designation of
critical habitat would provide educational benefits by formally
identifying those areas essential to the conservation of the species,
and the areas likely to be the focus of our recovery efforts for the
San Diego fairy shrimp. Therefore, we concluded that the benefits of
designating critical habitat on lands essential for the conservation of
the San Diego fairy shrimp would not increase incidences of vandalism
above current levels for this species.
On March 8, 2000, we published our determination that critical
habitat for the San Diego fairy shrimp was prudent and a concurrent
proposed rule to designate critical habitat for the San Diego fairy
shrimp on approximately 14,771 ha (36,501 ac) of land in Orange and San
Diego counties, California (65 FR 12181). The public comment period was
open for 60 days. On August 21, 2000, we published a notice of
availability for the draft economic analysis and reopening of the
comment period for the proposed critical habitat designation for the
San Diego fairy shrimp (65 FR 50672). The second comment period closed
on September 5, 2000. On October 23, 2000, we published a final rule
designating approximately 1,629 ha (4,025 ac) of critical habitat for
the San Diego fairy shrimp in Orange and San Diego counties, California
(65 FR 63438).
On January 17, 2001, a lawsuit challenging the designation of
critical habitat for the San Diego fairy shrimp and coastal California
gnatcatcher was filed by multiple parties including Building Industry
Association of Southern California, National Association of Home
Builders, and Foothill/Eastern Transportation Corridor (Building
Industry Association of Southern California et al. v. Norton, CV 01-
7028). The lawsuit was filed in the U.S. District Court for the
District of Columbia.
The U.S. District Court for the District of Columbia issued an
order on July 3, 2001, transferring this lawsuit and another lawsuit
challenging the designation of critical habitat for the coastal
California gnatcatcher to the U.S. District Court for the Central
District of California (Rancho Mission Viejo L.L.C. v. Babbitt, CV 01-
8412).
On June 11, 2002, the U.S. District Court for the Central District
of California granted the Service's request for a remand of the San
Diego fairy shrimp critical habitat designation so that we may
reconsider the economic impact associated with designating any
particular area as critical habitat. The Court ordered us to complete a
new
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proposed rule on or before April 11, 2003. In a subsequent order the
Court held that the critical habitat designated for the San Diego fairy
shrimp on October 23, 2000 (65 FR 63438) should remain in place until
such time as a new, final regulation becomes effective.
This proposal for critical habitat for the San Diego fairy shrimp
differs from the current designation of critical habitat with respect
to the mapping grid size and changes of locations of critical habitat
due to new survey data. In the preparation of this proposed critical
habitat we were able to reduce the minimum mapping unit from a 250
meter UTM grid to a 100 meter UTM grid. This allowed for the grid to
more closely follow the watershed boundaries. Through new surveys for
the San Diego fairy shrimp, the presence of San Diego fairy shrimp was
confirmed in four additional vernal pool complexes in Orange County.
The presence of the San Diego fairy shrimp was also reported from the
Naval Radio Receiving Facility (NRRF) in Southern San Diego County and
vernal pools in the City of San Marcos. However, NRRF is not proposed
because of a completed and approved INRMP. Besides these additional
confirmations, surveys at the Palomar Airport pools, an area previously
designated as critical habitat, found the pools to be unoccupied by the
San Diego fairy shrimp, thus they are no longer proposed as critical
habitat. This proposal is consistent with the previous designation of
critical habitat. Exclusions under 3(5)(A) and 4(b)(2) are similar to
the exclusions in the existing critical habitat.
Critical Habitat
Section 3 defines critical habitat as--(i) the specific areas
within the geographic area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features (I) essential to the conservation of the species
and (II) that may require special management considerations or
protection; and (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures that are
necessary to bring an endangered or a threatened species to the point
at which listing under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 also requires conferences on
Federal actions that are likely to result in the destruction or adverse
modification of proposed critical habitat.
To be included in a critical habitat designation, habitat must be
either a specific areas within the geographic area occupied by the
species on which are found those physical or biological features
essential to the conservation of the species (primary constituent
elements, as defined at 50 CFR 424.12(b)) and which require special
management considerations or protections, or be specific areas outside
of the geographic area occupied by the species which are determined to
be essential to the conservation of the species. Section 3(5)(C) of the
Act states that not all areas that can be occupied by a species should
be designated as critical habitat unless the Secretary determines that
all such areas are essential to the conservation of the species. Our
regulations (50 CFR 424.12(e)) also state that, ``The Secretary shall
designate as critical habitat areas outside the geographic area
presently occupied by the species only when a designation limited to
its present range would be inadequate to ensure the conservation of the
species.''
Accordingly, we do not designate critical habitat in areas outside
the geographic area occupied by the species unless the best available
scientific and commercial data demonstrate that unoccupied areas are
essential for the conservation needs of the species.
Section 4(b)(2) of the Act requires that we take into consideration
the economic, and any other relevant impact, of specifying any
particular area as critical habitat. We may exclude areas from critical
habitat designation when the benefits of exclusion outweigh the
benefits of including the areas within critical habitat, provided the
exclusion will not result in extinction of the species.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
provides criteria, establishes procedures, and provides guidance to
ensure that our decisions represent the best scientific and commercial
data available. It requires our biologists, to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information should be the listing package for the species. Additional
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties,
scientific status surveys and studies, biological assessments, or other
unpublished materials.
Section 4 of the Act requires that we designate critical habitat on
the basis of what we know at the time of designation. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support newly discovered populations in the future, but
are outside the critical habitat designation, will continue to be
subject to conservation actions implemented under section 7(a)(1) of
the Act and to the regulatory protections afforded by the section
7(a)(2) jeopardy standard and the section 9(a)(2) prohibitions, as
determined on the basis of the best available information at the time
of the 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, or other species
conservation planning efforts if new information available to these
planning efforts calls for a different outcome.
Relationship to Sections 3(5)(A) and 4(b)(2) of the Act
Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographic area occupied by the species on which are
found those physical and biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations and protection. As such, for an area to be
designated as critical habitat for a species it must meet both
provisions of the definition. In those cases where an area does not
provide those physical and biological features essential to the
conservation of the species, it has been our policy to not include
these specific areas in designated critical habitat. Likewise, if we
believe, based on an
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analysis, that an area determined to be biologically essential has an
adequate conservation management plan that covers the species and
provides for adaptive management sufficient to conserve the species,
then special management and protection are already being provided, and
then those areas do not meet the second provision of the definition and
are also not proposed as critical habitat.
Further, section 4(b)(2) of the Act states that critical habitat
shall be designated, and revised, on the basis of the best available
scientific data available after taking into consideration the economic
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, following an analysis, that the benefits of such
exclusion outweigh the benefits of specifying a particular area as
critical habitat, unless the failure to designate such area as critical
habitat will result in the extinction of the species. Consequently, we
may exclude an area from designated critical habitat based on economic
impacts, or other relevant impacts such as preservation of conservation
partnerships and national security, if, we determine, the benefits of
excluding an area from critical habitat outweigh the benefits from
including the area in critical habitat, providing the action of
excluding the area will not result in the extinction of the species.
In our critical habitat designations we have used both the
provisions outlined in sections 3(5)(A) and 4(b)(2) of the Act to
evaluate those specific areas that are proposed for designation as
critical habitat and those areas which are subsequently finalized
(i.e., designated). On the basis of these provisions, it has been our
policy to not include in proposed critical habitat, or exclude from
designated critical habitat, those areas: (1) Not biologically
essential to the conservation of a species, (2) covered by a legally
operative individual (project-specific) or regional habitat
conservation plans (HCPs) that cover the subject species, (3) covered
by a completed and approved Integrated Natural Resource Management
Plans (INRMPs) for specific Department of Defense (DoD) installations,
or (4) covered by an adequate conservation management plan or
agreement.
Relationship to Habitat Conservation Plans
Individual Habitat Conservation Plans
In general, we believe that lands essential to the conservation of
San Diego fairy shrimp that are protected in reserves established in
individual HCPs and for which adaptive management and protections are
in place do not require special management and protections because
their value for conservation has been addressed by the existing
protective measures and actions from the provisions of the HCP.
Consequently, reserve areas defined in these individual HCPs do not
meet the definition of critical habitat. Further, to the extent that
these areas do meet the definition of critical habitat as defined in
3(5)(A)(i)(II), it is additionally appropriate to exclude these areas
from critical habitat pursuant to the ``other relevant impacts''
provisions of section 4(b)(2). Therefore, individual HCPs that cover
the San Diego fairy shrimp are not being proposed as critical habitat
for the species.
Regional Habitat Conservation Plans
We have considered, but have not proposed as critical habitat those
preserve, reserve, or other conservation lands within the boundaries of
approved and legally operative regional HCPs that provide coverage for
the San Diego fairy shrimp. On the basis of the Secretary of the
Interior's authority under section 4(b)(2) of the Act we believe the
benefits of excluding these lands outweigh the benefits of including
them. Unlike individual HCPs significant portions of the lands to be
conserved and managed under these regional plans when they are fully
implemented, are not currently receiving special management or
protections. Therefore, these lands meet the definition of critical
habitat as outlined in section 3(5)(A) of the Act in that they are
``essential to the conservation of the species'' and ``may require
special management considerations or protection.'' This is because, in
contrast to fully implemented individual HCPs, the assembly of reserve
lands and establishment of protection and special management for
reserve lands in these regional HCPs occurs over decades as the
conservation program is put into place. Thus lands that are designated
for inclusion in a reserve once the plan is fully implemented still may
require special management or protection until such inclusion occurs.
In addition, in many cases, vernal pools and their surrounding habitats
are not within the boundaries of designated or targeted reserve lands
in these regional plans, which typically have focused reserve lands and
boundaries around the species that occupy the coastal sage scrub
habitat community rather than the vernal pool ecosystem.
Development of an HCP is a prerequisite for the issuance of an
incidental take permit pursuant to section 10(a)(1)(B) of the Act and
represents a large investment in a conservation partnership. HCPs vary
in size and complexity. They may provide incidental take coverage and
conservation management for one, several, or many federally listed
species. Additionally, there may be one or more than one applicant
participating in the development and implementation of an HCP.
Large, regional HCPs expand upon the basic requirements set forth
in section 10(a)(1)(B) of the Act because they reflect a voluntary,
cooperative approach to large-scale habitat and species conservation
planning. Many large, regional HCPs in southern California have been,
or are being, developed to provide for the conservation of numerous
federally listed and unlisted sensitive species and the habitats that
provide for their respective biological needs. These HCPs are designed
to proactively implement conservation actions to address projects that
are proposed to occur within the planning area of the HCP; however,
given the broad scope of these regional HCPs, not all projects
envisioned to potentially occur within the planning area of a regional
HCP may actually take place.
In the case of approved regional HCPs (i.e., those sponsored by
cities, counties or other local jurisdictions) that provide coverage
for the San Diego fairy shrimp, a primary goal is to provide for the
protection and management of habitat areas essential to the
conservation of the species while accommodating economic development.
The regional HCP development process provides an opportunity for more
intensive data collection and analysis regarding the use of particular
habitat areas by the San Diego fairy shrimp. The process also enables
us to conduct detailed evaluations of the importance of such lands to
the long-term survival of the species in the context of constructing a
system of interlinked habitat blocks that provide for the biological
needs of the species.
Approved HCPs and their accompanying implementation agreements
outline appropriate management measures and protections for covered
species for the purpose of protecting, restoring, and enhancing the
value of habitat for the conservation of the San Diego fairy shrimp.
These measures, which include explicit standards to avoid to the
maximum extent practicable and minimize impacts to the species and its
habitat
[[Page 19893]]
resulting from urban development for vernal pools, are designed to
ensure the continued value of vernal pools that are both within and
outside of the preserve boundaries as suitable habitat for the San
Diego fairy shrimp. HCPs provide for active conservation actions that
positively benefit the affected species, while the maximum requirement
that results from critical habitat designation is that parties subject
to a Federal nexus refrain from undertaking actions that adversely
modify the designated area. Active conservation measures are of greater
benefit to the species than mere avoidance of harm. These measures
cannot be compelled under a critical habitat designation, but must be
volunteered by the parties to the HCP.
Pursuant to the terms of implementation agreements signed by the
Service and permit holders in connection with approved HCPs and their
associated incidental take permits, once the protection and management
required under the HCPs are in place and assuming the established HCPs
are functioning properly, no additional mitigation in the form of land
or financial compensation may be required of the permit holders and
certain identified third parties except as provided under the terms of
the individual HCP. Similar assurances will be extended to future
permit holders in accordance with our Habitat Conservation Plan
Assurance (``No Surprises'') rule codified at 50 CFR 17.22(b)(5) and
(6), and 17.32(b)(5) and (6).
In light of the intensive investigation and analysis, public
comment, and internal section 7 consultations undertaken prior to
approval of regional and other Habitat Conservation Plans, we are
confident that individual HCPs identify, protect, and provide
beneficial adaptive management for essential vernal pool habitat within
the boundary of HCPs. Similarly, regional HCPs also identify and will,
as the plans are implemented over the life of the permits, protect and
provide beneficial adaptive management for essential vernal pool
habitat within their boundaries. Therefore, we have considered, but
have not proposed critical habitat for the San Diego fairy shrimp
within these approved HCPs pursuant to Section 4(b)(2) of the Act. We
are soliciting additional public review and comment on these
conclusions.
We are proposing to exclude currently proposed HCPs that cover the
San Diego fairy shrimp if, prior to publication of a final rule
designating critical habitat for the San Diego fairy shrimp, the plans
are completed, approved, and legally operative. We will evaluate the
exclusion of these lands on the basis of the best scientific and
commercial data available, and after taking into consideration the
economic and any other relevant impact of designating critical habitat.
Following is our preliminary analysis of the benefits of including
lands within approved HCPs versus excluding such lands from critical
habitat designation.
(1) Benefits of Inclusion
Critical habitat designation is anticipated to provide little
additional benefit to the San Diego fairy shrimp within the boundaries
of approved HCPs. The primary benefit of any critical habitat is that
activities that require Federal funding, permitting, or authorization
and which may affect critical habitat require consultation pursuant to
section 7 of the Act to ensure the activity will not destroy or
adversely modify designated critical habitat. Consultations would also
include the associated vernal pool watershed that are designated as
critical habitat. However, as a result of the United States Supreme
Court decision in Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), there may be
limited opportunities to consult with the U.S. Army Corps of Engineers
on activities that may affect vernal pools.
Currently approved and permitted HCPs are already designed to
ensure the conservation of covered species within the plan area.
Additionally, an HCP application must itself be consulted upon pursuant
to section 7 of the Act. All HCPs address land use within the plan
boundaries, and habitat issues as they relate to land use will have
been addressed within the HCP through our consultation on the HCP.
Furthermore, regional HCPs typically provide greater conservation
benefits to covered species than independent, project-by-project
section 7 consultations because HCPs assure the long-term protection
and special management needs for these species and their habitats, and
the funding for such management and protections through the standards
found in the 5-Point Policy for HCPs (65 FR 35242, June 1, 2000) and
the HCP No Surprises regulation (63 FR 8859, February 23, 1998). These
types of assurances are typically not provided by individual, project-
by-project section 7 consultations because such consultations do not
always commit the project proponent to long-term special management or
protections; therefore, a consultation may not accord the lands it
covers the extensive benefit a regional HCP provides. It is also
important to note that an HCP does not preclude the requirement for
Federal agencies to consult under section 7 of the Act for projects
that are proposed to occur within the plan area of HCPs, even if the
proposed action is a covered activity.
Development and implementation of HCPs provide other important
conservation benefits, including the development of biological
information to guide conservation efforts and assist in species'
recovery, and the creation of innovative solutions to conserve species
while allowing for continued economic development.
The educational benefits of critical habitat, including informing
the public of areas that are important to the conservation of listed
species, are essentially the same as those that would occur during the
process of approving an HCP. Specifically, an HCP involves public
participation through public notices and public comment periods, prior
to being approved. For these reasons, we believe that designation of
critical habitat typically provides little additional benefit in areas
covered by approved HCPs.
(2) Benefits of Exclusion
We have determined that the benefits of excluding lands within
approved HCPs from critical habitat designation may be more
substantial. The benefits of excluding lands within HCPs from critical
habitat designation include relieving landowners, communities and
counties of any additional regulatory burden that may result from such
designation. Many HCPs, particularly large, regional HCPs, take many
years to develop and, upon completion, become regional conservation
plans that are consistent with the recovery objectives for listed
species that are covered within the plan area. Additionally, many of
these HCPs provide conservation benefits to unlisted sensitive species.
Imposing an additional regulatory review after an HCP is completed
solely on the basis of critical habitat designation may jeopardize
conservation efforts and partnerships in many areas, and could be
viewed as a disincentive to those entities developing HCPs.
A related benefit of excluding lands within HCPs from critical
habitat designation is the continued ability to seek new partnerships
with future HCP participants including the State of California,
counties, local jurisdictions, conservation organizations, and private
landowners, that together can implement conservation actions that we
would be unable to accomplish
[[Page 19894]]
otherwise. If lands within HCP plan areas are designated as critical
habitat, it would likely have a chilling effect on our ability to
establish new partnerships to develop HCPs, particularly large,
regional HCPs that involve numerous participants and address landscape-
level conservation of species and habitats. By considering excluding
these lands, we preserve our current partnerships and, we believe, set
the stage for additional conservation actions in the future.
In addition to the conservation benefits HCPs provide to covered
species within the plan areas, many of these HCPs, particularly large,
regional HCPs, also address landscape-level conservation of native
habitats. The Natural Communities Conservation Planning Act of 1991
(NCCP) provides a framework for conserving listed and other sensitive
species at a regional or ecosystem scale. The pilot program of the NCCP
focuses on conservation of native coastal sage scrub communities
throughout a 6,000-square-mile area in southern California that
includes parts of Los Angeles, Orange, San Diego, Riverside, and San
Bernardino counties. The NCCP program complements the objectives of
regional HCP planning efforts. In southern California, several regional
conservation planning efforts that incorporate the dual objectives of
NCCP/HCP have already been approved.
In southwestern San Diego County, the Multiple Species Conservation
Program (MSCP) effort encompasses more than 236,000 ha (582,000 ac) and
reflects the potential participation of more than 12 local
jurisdictions. The MSCP provides for the establishment over the permit
term of approximately 69,573 ha (171,000 ac) of preserve areas to
provide conservation benefits for 85 federally listed and sensitive
species. Under the broad umbrella of the MSCP, each participating
jurisdiction prepares a Subarea Plan that complements the goals of the
MSCP. Each Subarea Plan is consulted on under section 7 of the Act to
ensure the Subarea Plans are consistent with the aims of the MSCP.
The MSCP provides for avoidance of impacts to vernal pool habitat
for the San Diego fairy shrimp both within and outside of existing and
targeted reserve areas. In addition, the incidental take permits issued
to the City and County of San Diego under the MSCP limits take of San
Diego fairy shrimp to areas outside of jurisdictional waters of the
United States, as that term was understood at the time the permits were
issued prior to the SWANCC decision. In other words, take of San Diego
fairy shrimp under the approved subarea plans is limited to situations
where the species occurs outside of its natural vernal pool habitat.
The subarea plans also contemplated individualized review of projects
impacting vernal pool habitat of the San Diego fairy shrimp under
Section 404 of the Clean Water Act and Section 7 of the ESA to insure
compliance 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''; however, that review may not occur because of
the intervening SWANCC decision. Even without that additional Section 7
review, however, the commitment by the City and County to avoid impacts
to vernal pool habitat both within and outside reserve areas to the
maximum extent practicable remains in place. The plans also commit the
jurisdictions to affirmatively monitor and adaptively manage vernal
pool habitats and species. Those measures combined with the restrictive
incidental take authorized under the City and County incidental take
permits, will ensure the conservation of the San Diego fairy shrimp and
its vernal pool habitat within the approved MSCP subarea plan areas.
The Central-Coastal NCCP/HCP in Orange County was developed in
cooperation with numerous State and local jurisdictions, agencies, and
participating landowners including the cities of Anaheim, Costa Mesa,
Irvine, Orange, and San Juan Capistrano; Southern California Edison,
the Transportation Corridor Agencies, The Irvine Company, California
Department of Parks and Recreation, Metropolitan Water District of
Southern California, and the County of Orange. Approved in 1996, the
Central-Coastal NCCP/HCP provides for the establishment of
approximately 15,677 ha (38,738 ac) of reserve lands for 39 Federal or
State listed and unlisted and sensitive species.
There are three known locations of vernal pools occupied by San
Diego fairy shrimp within the Central-Coastal NCCP/HCP boundaries:
Fairview Regional Park, Newport-Banning Ranch, and the North Ranch
Policy Plan Area. The vernal pool complex at Fairview Regional park
occurs within a city that is not a participating jurisdiction under the
Central-Coastal NCCP/HCP. The Newport Banning Ranch is designated as an
``existing use'' habitat area in the Central-Coastal NCCP/HCP and is
not covered for the take of any federally listed species, including the
San Diego fairy shrimp. San Diego fairy shrimp known from the North
Ranch Policy Plan area occur in a non-degraded, natural vernal pool.
There is currently a Nature Conservancy conservation easement over the
portion of the North Ranch Policy Plan area containing vernal pool
habitat and a management endowment for the easement, but a conservation
management plan has not yet been completed for the area. Under the
Central-Coastal NCCP/HCP, SDFS occurring within these three vernal pool
areas are not covered by the plan.
Several regional NCCP/HCP efforts are currently under way in
southern California that have not yet been completed but which, upon
approval, should provide conservation benefits to the San Diego fairy
shrimp.
The Multiple Habitat Conservation Program (MHCP) in northwestern
San Diego County encompasses approximately 45,300 ha (175
mi.2) within the study area, including vernal pool habitat.
Currently, seven cities are participating in the development of the
MHCP.
The proposed Southern Subregion NCCP/HCP in Orange County
encompasses approximately 51,800 ha (200 mi.2) in its
planning area, including vernal pool habitat for the San Diego fairy
shrimp. Jurisdictions and private landowners within the study area
include the cities of Rancho Santa Margarita, Mission Viejo, San Juan
Capistrano, San Clemente, and Rancho Mission Viejo.
In general, we find that the benefits of critical habitat
designation on lands within approved HCPs that cover those species are
small, while the benefits of excluding such lands from designation of
critical habitat are substantial. After weighing the small benefits of
including these lands against the much greater benefits derived from
exclusion, including encouragement for the pursuit of additional
conservation partnerships, we have considered, but have not proposed
critical habitat on reserve, preserve, or other lands targeted for
conservation within the boundaries of approved HCPs that include the
San Diego fairy shrimp as a covered species.
In the event that future HCPs covering the San Diego fairy shrimp
are developed within the boundaries of designated critical habitat, we
will work with applicants to ensure that the HCPs provide for
protection and management of habitat areas essential for the
conservation of the species. We will provide technical assistance and
work closely with applicants throughout the development of future HCPs
to identify lands essential for the long-term conservation of the San
Diego fairy shrimp and appropriate management for those lands. The take
minimization and mitigation measures provided under these HCPs are
expected to protect the
[[Page 19895]]
essential lands that are proposed as critical habitat in this rule. If
an HCP that addresses the San Diego fairy shrimp as a covered species
is ultimately approved, the Service can reassess the critical habitat
boundaries in light of the HCP. The Service would seek to undertake
this review when the HCP is approved, but funding constraints may
influence the timing of such a review.
Relationship to Department of Defense Lands
Marine Corps Air Station, Miramar and Naval Radio Receiving Facility
The Sikes Act Improvements Act of 1997 (Sikes Act) requires each
military installation that includes land and water suitable for the
conservation and management of natural resources to complete, by
November 17, 2001, an Integrated Natural Resources Management Plan
(INRMP). An INRMP integrates implementation of the military mission of
the installation with stewardship of the natural resources found there.
Each INRMP includes an assessment of the ecological needs on the
installation, including needs to provide for the conservation of listed
species; a statement of goals and priorities; a detailed description of
management actions to be implemented to provide for these ecological
needs; and a monitoring and adaptive management plan. We consult with
the military on the development and implementation of INRMPs for
installations with listed species. We believe that bases that have
completed and approved INRMPs that address the needs of the species
generally do not meet the definition of critical habitat discussed
above, as they already provide special management or protection.
Therefore, we do not include these areas in critical habitat
designations if they meet the following three criteria: (1) A current
INRMP must be complete and provide a conservation benefit to the
species; (2) the plan must provide assurances that the conservation
management strategies will be implemented; and (3) the plan must
provide assurances that the conservation management strategies will be
effective, by providing for periodic monitoring and revisions (adaptive
management) as necessary. If all of these criteria are met, then the
lands covered under the plan would not meet the second provision of the
definition of critical habitat pursuant to section 3(5)(A)(i)(II) and
consequently not proposed as critical habitat for the covered species.
Marine Corps Air Station, Miramar (MCAS, Miramar) has completed a
final INRMP in May 2000 that provides for sufficient conservation
management and protection for the San Diego fairy shrimp. We have
reviewed this plan and have determined that it addresses and meets the
three criteria discussed above. Therefore, lands on MCAS, Miramar that
are biologically essential to the San Diego fairy shrimp do not meet
the second provision of the definition of critical habitat pursuant to
section 3(5)(A)(i)(II) as they have currently have special management
and protection. Consequently, these lands essential to the San Diego
fairy shrimp have not been included in the proposed designation of
critical habitat for the species. Further, to the extent that the areas
biologically essential to the San Diego fairy shrimp on MCAS, Miramar
may meet the definition of critical habitat as defined in
3(5)(A)(i)(II), it is additionally appropriate to exclude these areas
from critical habitat pursuant to the ``other relevant impacts''
provisions of section 4(b)(2) as discussed below.
Similar to MCAS, Miramar, the U.S. Navy's Naval Radio Receiving
Facility (NRRF) in Coronado also has a completed and approved final
INRMP that provides for the conservation of the San Diego fairy shrimp.
Therefore, lands on NRRF that are biologically essential to the San
Diego fairy shrimp do not meet the second provision of the definition
of critical habitat pursuant to section 3(5)(A)(i)(II) as they have
currently have special management and protection. Consequently, these
lands essential to the San Diego fairy shrimp have not been included in
the proposed designation of critical habitat for the species. Further,
to the extent that the areas biologically essential to the San Diego
fairy shrimp on NRRF may meet the definition of critical habitat as
defined in 3(5)(A)(i)(II), it is additionally appropriate to exclude
these areas from critical habitat pursuant to the ``other relevant
impacts'' provisions of section 4(b)(2) as discussed below.
The primary benefit of proposing critical habitat is to identify
lands essential to the conservation of the species which, if critical
habitat was designated, would require consultation with us to ensure
activities would not adversely modify critical habitat or jeopardize
the continued existence of the species. As previously discussed MCAS,
Miramar and NRRF have completed final INRMPs that provide for
sufficient conservation management and protection for the San Diego
fairy shrimp. Therefore, we do not believe that designation of areas on
MCAS, Miramar and on NRRF as critical habitat will appreciably benefit
the San Diego fairy shrimp beyond the protection already afforded the
species under the Act and the completed INRMPs. Exclusion of these
lands would not result in the extinction of the species.
However, even if the lands on MCAS, Miramar and NRRF did require
special management and thus meet the definition of critical habitat,
there would be appreciable benefits to excluding these areas from
critical habitat pursuant to section 4(b)(2). If critical habitat were
to be designated, these facilities would be compelled to consult under
section 7 of the Act on any activity that may affect designated
critical habitat. Given the INRMPs, the additional burden of consulting
could unnecessarily impair their ability to conduct activities.
Similarly, including these areas in the proposed critical habitat rule
would require these facilities to conference with us on any activities
that might adversely modify or destroy proposed critical habitat. This
could result in unnecessary delays and disruption of base's activities
and potentially impair our Nation's military readiness. In light of our
country's national security interest, we have considered, but have not
proposed critical habitat on MCAS, Miramar or NRRF.
Marine Corps Base, Camp Pendleton
Critical habitat is being proposed for the San Diego fairy shrimp
on Department of Defense (DoD) lands including lands that are not
mission-essential training areas on Marine Corps Base, Camp Pendleton
(Camp Pendleton); and on lands leased to the State of California by
Camp Pendleton. Areas proposed as critical habitat for the San Diego
fairy shrimp on Camp Pendleton meet the definition of critical habitat
pursuant to section 3(5)(A) in that they are ``essential to the
conservation of the species'' and ``may require special management or
protections.''
Under 4(b)(2) of the Act, we have considered, but have not proposed
critical habitat on mission-essential training areas on Camp Pendleton.
Camp Pendleton operates an amphibious training base that promotes the
combat readiness of military forces and is the only West Coast Marine
Corps facility where amphibious operations can be combined with air,
sea, and ground assault training activities year-round. Currently, the
Marine Corps has no alternative installation available for the types of
training that occur on Camp Pendleton.
[[Page 19896]]
The Marine Corps consults with us under section 7 of the Act for
activities that may affect federally threatened or endangered species
on Camp Pendleton. On March 30, 2000, at the request of the Marine
Corps, we initiated a formal consultation regarding Marine Corps
activities on upland areas of Camp Pendleton. The consultation covers
approximately 60,703 ha (150,000 ac) of land within the upland areas of
Camp Pendleton, including combat readiness operations, air operations,
vehicle operations, facility maintenance and operations, fire
management, recreation activities, and housing. The upland consultation
that addresses vernal pool habitat, the San Diego fairy shrimp, and
other species is not yet completed. We are currently working
cooperatively with Camp Pendleton to facilitate the completion of this
upland consultation.
In order to continue its critical training mission pending
completion of the consultation, the Marine Corps has implemented
measures the Corps believes will avoid jeopardy to the continued
existence of the San Diego fairy shrimp and other listed species within
the uplands area and comply with section 7(d) of the Act. In
particular, the Marine Corps is implementing a set of ``programmatic
instructions'' to avoid adverse effects to the San Diego fairy shrimp.
The primary benefit of proposing critical habitat is to identify
lands essential to the conservation of the species which, if critical
habitat was designated, would require consultation with us to ensure
activities would not adversely modify critical habitat or jeopardize
the continued existence of the species. We are already in formal
consultation with the Marine Corps on their upland activities to ensure
current and proposed actions will not jeopardize the species' continued
existence. Therefore, we do not believe that designation of mission-
essential training areas on Camp Pendleton as critical habitat will
appreciably benefit the San Diego fairy shrimp beyond the protection
already afforded the species under the Act. Exclusion of these lands
will not result in the extinction of the species.
In contrast to the absence of an appreciable benefit resulting from
designation of Camp Pendleton training areas, there are substantial
benefits to excluding these areas from critical habitat. If critical
habitat were to be designated within the training areas, the Marine
Corps would be compelled to consult under section 7 of the Act on any
activity that may affect designated critical habitat. The additional
burden of consulting on activities within mission-essential training
could delay and impair the ability of the Marine Corps to conduct
training activities, thus, limiting Camp Pendleton's utility as a
military training installation. Similarly, including these areas in the
proposed critical habitat rule would require the Marine Corps to
conference with us on any activities that might adversely modify or
destroy proposed critical habitat. This would result in similar delays
and disruption of base's military training mission and impairment of
our Nation's military readiness.
In light of our country's national security interest in ensuring
Camp Pendleton's ability to maintain a high level of readiness and
fighting capabilities, and the disruption to the Marine Corps' training
mission, we have considered, but have not proposed critical habitat on
lands identified as mission-essential training areas.
We are soliciting public review and comment on our decision to
consider, but not propose critical habitat for the San Diego fairy
shrimp on mission-essential training areas of Camp Pendleton, based on
section 4(b)(2) of the Act. Maps delineating habitat for the San Diego
fairy shrimp, overlaid with mission-essential training areas on Camp
Pendleton, are available for public review and comment at the Carlsbad
Fish and Wildlife Office (see ADDRESSES section) or on the Internet at
http://carlsbad.fws.gov. Additionally, maps showing lands essential to
the conservation of the San Diego fairy shrimp, but not included in
proposed critical habitat based and the provisions of section
3(5)(A)(i)(II), are available for viewing at the Carlsbad Fish and
Wildlife Office (see Addresses section). These maps are provided to
allow the public to adequately comment on these exclusions.
Methods
In determining areas that are essential to conserve the San Diego
fairy shrimp, we used the best scientific and commercial data
available. This included data from research and survey observations
published in peer-reviewed articles, recovery criteria outlined in the
Recovery Plan for Vernal Pools of Southern California (Recovery Plan)
(Service 1998), regional Geographic Information System (GIS) vegetation
and species coverages (including vegetation layers for Orange and San
Diego counties), data collected on Camp Pendleton and MCAS, Miramar,
data collected from reports submitted by biologists holding section
10(a)(1)(A) recovery permits, and comments received on the March 8,
2000, proposed rule to designate critical habitat for the San Diego
fairy shrimp (65 FR 12181) and the August 21, 2000, draft economic
analysis (65 FR 50672). In an effort to map areas essential to the
conservation of the species, we used data on known San Diego fairy
shrimp locations and those vernal pools and vernal pool complexes that
we identified in the Recovery Plan as essential for the stabilization
and reclassification of the species.
Primary Constituent Elements
In accordance with sections 3(5)(A)(i) and 4(b)(2) of the Act and
regulations at 50 CFR 424.12, in determining which areas to propose as
critical habitat, we are required to base critical habitat
determinations on the best scientific and commercial data available. We
consider those physical and biological features (primary constituent
elements) that are essential to the conservation of the species, and
that may require special management considerations or protection. These
include, but are not limited to: Space for individual and population
growth, and for normal behavior; food, water, or other nutritional or
physiological requirements; cover or shelter; sites for breeding and
reproduction; and habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
The primary constituent elements for the San Diego fairy shrimp are
those habitat components that are essential for the primary biological
needs of foraging, sheltering, reproduction, cyst (egg) dormancy,
dispersal, and genetic exchange. The primary constituent elements are
found in those areas that support vernal pools or other ephemeral
depressional wetlands. Primary constituent elements include the vernal
pool basins and associated watersheds, and include, but are not limited
to: small to large vernal pools with shallow to moderate depths that
hold water for sufficient lengths of time necessary for San Diego fairy
shrimp incubation and reproduction, but not necessarily every year;
associated watershed(s) and hydrology for vernal pool basins and their
related vernal pool complexes; ephemeral depressional wetlands, flat or
gently sloping topography, and any soil type with a clay component and/
or an impermeable surface or subsurface layer known to support vernal
pool habitat. The associated watersheds are essential in maintaining
the hydrology of vernal pools necessary to support San Diego fairy
shrimp.
The first constituent element necessary for vernal pools to form
are
[[Page 19897]]
soils with an underlying claypan or hardpan layer that restricts water
drainage. These soils include, but are not limited to: Huerheuero,
Olivenhain, Placentia, Redding, and Stockpen (Bauder and McMillan
1998). The second primary constituent element is the possibility that a
cyst bank exists in the soil. Dormant fairy shrimp cysts are viable for
several years (Donald 1983; Belk 1998). In some cases vernal pool areas
that appear degraded still maintain a viable source of fairy shrimp
cysts. These cyst banks are similar to the seed banks of flowering
plants. These areas are indicated by historical records of vernal
pools, the presence of plants or animals associated with ephemeral
wetlands, or the occasional pooling of water. The third constituent
element relates to the topography of areas supporting the San Diego
fairy shrimp. Vernal pool topography is such that the vernal pool fills
directly from rain fall or in other cases the topography is such that
the pool forms through the subsurface or overland waterflow from the
surrounding watershed. The topography does not need to facilitate
pooling water every year.
The long-term conservation of vernal pools that are essential for
the recovery of the San Diego fairy shrimp include the protection and
management of their associated watersheds. Primary constituent elements
are found in all the areas proposed as critical habitat.
Criteria Used To Identify Critical Habitat
The long-term conservation of the San Diego fairy shrimp depends
upon the protection and management of vernal pools within each
management area as described in the Recovery Plan for Vernal Pools in
Southern California. Eight distinct management areas were identified in
the Recovery Plan based on plant and animal distribution, soil types,
and climatic variables. Further, the management area for the
conservation of the San Diego fairy shrimp includes vernal pools and
complexes that are known to be or are likely occupied by this species
and are needed to retain local genetic differentiation, reduce the risk
of losing individual species or pool types, buffer environmental
variation, and provide for the opportunity for re-establishment of
populations (Service 1998). We evaluated those areas based on the
hydrology, watershed and topographic features. On the basis of this
evaluation of vernal pools identified as essential for the recovery of
the San Diego fairy shrimp, we overlaid a 100 m (330 ft) Universal
Transverse Mercator (UTM) (North American Datum 1927 (NAD 27)) grid on
top of those essential vernal pool complexes and their associated
essential watersheds. In those cases where occupied vernal pools were
not identified in the Recovery Plan, we relied on recent scientific
data to update the map coverage for Orange County where essential
vernal pools have been identified since the publication of the recovery
plan.
Secondly, after determining those specific areas that are
biologically essential to the San Diego fairy shrimp, we evaluated the
areas relative to approved and legally operative individual and
regional HCPs, completed and approved INRMPs for DoD lands, and other
adequate conservation management plans or agreements. This comparison
was conducted to ascertain the extent to which these conservation
measures precluded the need to designate critical habitat on those
lands based on the management provisions and protections afforded the
San Diego fairy shrimp and its habitat. As previously discussed, we are
not proposing as critical habitat, pursuant to sections 3(5)(A) and
4(B)(2), on lands covered by: (1) A legally operative and fully
implemented HCP that covers the San Diego fairy shrimp, (2) a completed
and approved INRMP that adequately address the San Diego fairy shrimp
and its habitat, and (3) other appropriate conservation management
plans or agreements. Consequently, lands within the boundaries of fully
implemented HCPs, and Miramar are not proposed as critical habitat for
the San Diego fairy shrimp based on the provisions of section
3(5)(A)(i)(II). Maps showing lands essential to the conservation of the
San Diego fairy shrimp, but not included in proposed critical habitat
based on the basis of Secton 3(5)(A)(i)(II) are available for viewing
at the Carlsbad Fish and Wildlife Office (see ADDRESSES). We have also
considered but are not proposing as critical habitat lands within the
Central-Coastal Orange County Subregional NCCP/HCP boundaries with the
exception of the three vernal pool areas identified under Regional
HCPs, lands within approved subareas under the MSCP, and certain
military lands on Camp Pendlton based on our evaluation under section
4(b)(2) of the relatively greater benefits that would result from
exclusion of these lands from proposed critical habitat. Miramar and
NRRF have also been considered and excluded from proposed critical
habitat based on sections 3(5)(A) and 4(b)(2). Maps showing the all
essential areas considered, but not proposed, are available for public
review and comment at the Carlsbad Fish and Wildlife Office (see
ADDRESSES section) or on the Internet at http://carlsbad.fws.gov.
Additionally, these maps are provided to allow the public to adequately
comment on these exclusions.
In defining critical habitat boundaries, we made an effort to avoid
mapping developed areas that are unlikely to contribute to San Diego
fairy shrimp conservation. However, the minimum mapping unit that we
used did not allow us to avoid mapping of all developed areas unlikely
to contain the primary constituent elements essential for conservation
of the San Diego fairy shrimp. Existing features and structures within
the boundaries of the mapped units, such as buildings, roads,
aqueducts, railroads, airports, other paved areas, lawns, landscaped
areas, and other urban areas, will not contain one or more of the
primary constituent elements. Federal actions limited to those areas,
therefore, would not trigger a section 7 consultation, unless they
affect the species and/or primary constituent elements in adjacent
critical habitat. The complexes of vernal pools and their associated
watersheds within the proposed critical habitat area are within the
geographical area occupied by San Diego fairy shrimp.
In summary, in determining areas that are essential to conserve San
Diego fairy shrimp, we used the best scientific information available
to us. The critical habitat areas described below constitute our best
assessment of areas needed for the species' conservation and recovery.
Critical Habitat Designation
The approximate area of proposed critical habitat by county and
land ownership is shown in Table 1. Critical habitat includes San Diego
fairy shrimp habitat throughout the species' range in the United States
(i.e., Orange and San Diego counties, California). Areas proposed for
critical habitat are under Federal, State, local, and private
ownership. Areas proposed for critical habitat exclude some of the
essential areas for this species; the exclusions are summarized in
Table 2. Some of the areas proposed as critical habitat are within
HCPs. Table 3 shows the total area that each of these plans cover and
the preserve area for each. Only the San Diego MSCP represents a
completed plan that covers the San Diego fairy shrimp. Areas proposed
as critical habitat are divided into five Critical Habitat Units which
are based on the recovery units in the Recovery Plan (Service 1998).
The units are generally based on geographical location of the vernal
pools, soil types, associated
[[Page 19898]]
watersheds, and local variation of topographic position (i.e., coastal
mesas, inland valley). A brief description of each unit and the reasons
for designating it as critical habitat are presented below.
Table 1.--Approximate Area Encompassing Designated Critical Habitat in Hectares (ha) (Acres (ac)) by County and
Land Ownership
----------------------------------------------------------------------------------------------------------------
County Federal land \1\ Local/state land Private land Total
----------------------------------------------------------------------------------------------------------------
Orange.......................... N/A............... 30 ha (74 ac)..... 117 ha (289 ac)... 147 ha (363 ac).
San Diego....................... 530 ha (1,309 ac). 228 ha (564 ac)... 1,563 ha (3,862 2,321 ha (5,735
ac). ac).
Total........................... 530 ha (1,309 ac). 258 ha (638 ac)... 1,680 ha (4,151 2,468 ha (6,098
ac). ac).
----------------------------------------------------------------------------------------------------------------
\1\ Includes Department of Defense and U.S. Fish and Wildlife Service lands.
Table 2.--Approximate Proposed Critical Habitat Area (ha (ac)),
Essential Area, and Excluded Area
------------------------------------------------------------------------
------------------------------------------------------------------------
Area considered essential........ 8,100 ha (20,015 ac).
Area not included under 3(5)(A) 1,036 ha (2,561 ac).
(MCAS Miramar, NRRF, individual
HCPs*).
Area excluded under 4(b)(2) (Camp 4,596 ha (11,356 ac).
Pendleton and preserve lands
under the San Diego MSCP).
Proposed Critical Habitat........ 2,468 ha (6,098 ac).
------------------------------------------------------------------------
* Acreage for individual HCPs are not available.
Table 3.--NCCP/HCPs Within the General Area Which Contain the Proposed
Critical Habitat
------------------------------------------------------------------------
NCCP/HCP Planning area Preserve area
------------------------------------------------------------------------
San Diego MSCP.................. 236,000 ha 69,573 ha (171,000
(582,000 ac). ac).
Central/Coastal Orange County 84,463 ha (208,713 15,677 ha (38,738
NCCP/HCP. ac). ac).
Proposed MSCP North County 142,854 ha Information not
Subarea. (353,000 ac). available.
Proposed Northwestern San Diego 45,288 ha (111,908 8,064 ha (19,928
MHCP. ac). ac).
Proposed Southern Subregion NCCP/ 51,800 ha (128,000 5,666 ha (14,000
HCP Orange County (pending). ac). ac).
------------------------------------------------------------------------
Areas proposed as critical habitat do not include all of the vernal
pools where the San Diego fairy shrimp are found. All of the vernal
pools included in the critical habitat were surveyed and are considered
to be occupied by the San Diego fairy shrimp. Vernal pools can be
measured by different methods: (1) Area of pool basins, (2) soil types,
or (3) the associated watersheds. These differences make estimating the
historical and current extent of vernal pool habitat in Southern
California difficult. In delineating areas essential for the
conservation of the San Diego fairy shrimp, we used the area of the
associated vernal pool watersheds. Depending on the topography of the
area and the adjacent land use, the size of the associated vernal pool
watersheds vary between pool complexes.
The five Critical Habitat Units are based on the Management Areas
outlined in the Recovery Plan for Vernal Pools of Southern California
(Service 1998). The units represent those vernal pools, their
associated watersheds, and include populations of the San Diego fairy
shrimp throughout its range. The critical habitat units occur on the
various soil types and vegetation classes associated with vernal pools.
Each contains the primary constituent elements for the San Diego fairy
shrimp. We are proposing 2,468 ha (6,098 ac) as critical habitat for
this species. Some of the pools within proposed critical habitat are in
a degraded state and will benefit from restoration and enhancement
work, which will contribute to recovery of the San Diego fairy shrimp.
Unit 1: Orange County
Unit 1 encompasses approximately 147 ha (363 ac) in Orange County
within the Los Angeles Basin/Orange Management Area as outlined in the
Recovery Plan. The majority of vernal pools in this management area
were extirpated prior to 1950 and only a small number of vernal pools
remain in Los Angeles and Orange counties (Service 1998). This unit
represents the northern extent of this species' currently known
distribution in southern California and includes vernal pools that have
been identified as essential to the recovery of the San Diego fairy
shrimp in order to stabilizing populations and habitat loss. The vernal
pools that are proposed as critical habitat are relatively isolated and
are the only known remaining vernal pools in Orange County that support
the San Diego fairy shrimp. The pools in this unit include examples of
the historic distribution of coastal terrace vernal pools at Fairview
Regional Park and Newport-Banning Ranch, vernal pool-like ephemeral
ponds formed by landslides and fault activity on Rancho Mission Viejo,
and the only known rock pool in southern California. This rock pool is
located in the North Ranch Policy Plan Area. As discussed in the
Recovery Plan (Service, 1998), preservation of vernal pools must be on
a geographical scale for individual species and habitats. For species
like the San Diego fairy shrimp with declining populations and limited
distribution, maintenance of genetic variability is crucial for its
survival. The high degree of variability in habitat combined with the
unpredictability of winter rains has resulted in genetic structure be
tween pool complexes. Moreover, there is a low degree of genetic
variability within pool complexes. Thus, to conserve the genetic
structure and variability of this species, vernal pools supporting San
Diego fairy shrimp need to conserved throughout the range of this
species, including the northern end of the distribution. This
northernmost unit is essential to the conservation of the San Diego
fairy shrimp because it maintains the ecological distribution and
genetic variability of this species on a broad geographical scale. The
restricted distribution and isolation of the vernal pools also suggest
that they may contain genetic diversity important for the long-term
survival of the San Diego fairy shrimp.
Unit 2: San Diego: North Coastal Mesa
Unit 2 encompasses approximately 357 ha (882 ac) in San Diego
County within the North Coastal Mesa Management Area, as outlined in
the Recovery Plan. This unit includes a small portion of Camp Pendleton
[[Page 19899]]
(nontraining areas) and an area within the City of Carlsbad. The area
proposed on Camp Pendleton includes lands leased by the Marine Corps to
the California Department of Parks and Recreation and private
interests; Cockleburr preserve; and nontraining lands around the Wire
Mountain housing area. These pools represent some of the best examples
of coastal pools still remaining in San Diego County. The other vernal
pools on Camp Pendleton that occur within mission-essential training
areas have been excluded from proposed critical habitat under section
4(b)(2) of the Act, but are considered essential for the recovery of
the San Diego fairy shrimp. Within the jurisdiction of the City of
Carlsbad, the vernal pool complex located in the vicinity of Palomar
Airport is currently designated as critical habitat. However, based on
recent surveys, we have determined that this vernal pool complex is not
essential for the San Diego fairy shrimp. The pool complex at
Poinsettia Lane train station, in the City of Carlsbad, is proposed as
critical habitat. The Poinsettia Lane pools represent the most coastal
location where the San Diego fairy shrimp and the endangered Riverside
fairy shrimp co-occur. The Recovery Plan identifies these vernal pools
as essential for recovery of the San Diego fairy shrimp because of
their role in stabilizing populations and preventing habitat loss. As
discussed in the Recovery Plan (Service 1998), vernal pools must be
conserved on a geographical scale and these examples represent coastal
terrace vernal pools found in northern San Diego County. Given the
rarity of 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 need to conserve vernal pools throughout the range
of the species in order to meet the overall recovery of this species,
and its role in maintaining the genetic diversity and population
stability of the San Diego fairy shrimp.
Unit 3: San Diego: Inland Valley
Unit 3 encompasses 1,225 ha (3,027 ac) in San Diego County within
the San Diego Inland Valley Management Area, as outlined in the
Recovery Plan. Lands proposed as critical habitat for the San Diego
fairy shrimp contain vernal pool complexes within the jurisdiction of
the City of San Marcos and the community of Ramona. In the community of
Ramona, one of the complexes is within the boundaries of Ramona
Airport. These vernal pool complexes are generally isolated from
maritime influence (greater than 10 km (6 mi) from the coast) and are
representative of vernal pools associated with alluvial or volcanic
type soils. The vernal pools in San Marcos are associated with native
grassland and a unique association of multiple species of Brodiaea. The
Recovery Plan specifically identifies these vernal pools as essential
for recovery of the San Diego fairy shrimp because of their role in
stabilizing populations and preventing habitat loss. Protection of
these areas will help meet the Recovery Plan goal of reclassifying this
species in a future downlisting/delisting action. This unit includes
vernal pools within the easternmost edge of the geographical
distribution of the species. 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.
Unit 4: San Diego: Central Coastal Mesa
Unit 4 encompasses 73 ha (181 ac) in San Diego County within the
San Diego Central Coastal Mesa Management Area, as outlined in the
Recovery Plan. Lands considered for this critical habitat unit contain
vernal pool complexes within the jurisdiction of the City of San Diego,
State of California, Service, Navy, and private lands. The Recovery
Plan specifically identifies these vernal pools as essential for the
recovery of the San Diego fairy shrimp because of their role in
stabilizing populations and preventing habitat loss. These vernal pool
complexes are associated with coastal terraces and mesas found south of
the San Dieguito River to San Diego Bay. While many of the vernal pool
complexes in this unit have been destroyed or fragmented, these
complexes represent some of the best remaining vernal pools in San
Diego County.
On MCAS, Miramar, vernal pools identified in the Recovery Plan are
considered to be essential for the conservation of the San Diego fairy
shrimp. MCAS, Miramar is successfully implementing its INRMP and the
majority of these pools are considered to be of the highest quality and
irreplaceable. These pools are encompassed within Level 1 Management
Areas under the installation's INRMP. We have considered, but have not
proposed critical habitat designation under 3(5)(A) of the Act for
MCAS, Miramar based on the INRMP. Further, to the extent that these
areas do meet the definition of critical habitat as defined in
3(5)(A)(i)(II), it is additionally appropriate to exclude these areas
from critical habitat pursuant to the ``other relevant impacts''
provisions of section 4(b)(2). Therefore, MCAS, Miramar lands are not
being proposed as critical habitat for this species.
Many of the vernal pools considered for this unit receive
conservation protection by virtue of their land ownership and
management. These pools represent the some of the best opportunities
for long-term protection for the San Diego fairy shrimp. Many of these
vernal pools are within the MSCP. We have considered, but have not
proposed as critical habitat those vernal pools within approved HCPs
(MSCP) where the San Diego fairy shrimp is a covered species. Vernal
pools that are included in this critical habitat unit consist of four
subunits that are federally owned. This unit includes pools that occur
on Del Mar Mesa that are within the San Diego National Wildlife Refuge.
This unit also includes land owned by the Department of Defense which
meet the definition of critical habitat at Tierrasanta South and at
Chollas Heights. This unit provides for the conservation of the San
Diego fairy shrimp by protecting vernal pools essential for the future
reclassification (downlisting/delisting actions) of this species. It
includes vernal pools within the center of this species' geographical
distribution, and retains the genetic diversity of these geographically
distinct populations.
Unit 5: San Diego: Southern Coastal Mesa
Unit 5 encompasses 666 ha (1,645 ac) in San Diego County within the
San Diego Southern Coastal Mesa Management Area, as outlined in the
Recovery Plan. Essential habitat for the San Diego fairy shrimp occurs
in vernal pool complexes within the jurisdiction of the Service, the
Cities of San Diego and Chula Vista, County of San Diego, U.S.
Immigration and Naturalization Service (INS), other DoD lands, and
private lands within unit 5. These vernal pool complexes are associated
with coastal mesas from the Sweetwater River south to the international
border with Mexico. We have considered, but have not proposed as
critical habitat those vernal pools within approved HCPs (MSCP) where
the San Diego fairy shrimp is a covered species. We have considered,
but have not proposed critical habitat designation under 3(5)(a) of the
Act for NRRF based on their INRMP. The remaining lands identified as
essential in the recovery plan are proposed as critical habitat. These
vernal pool complexes occur on Federal lands and lands included in the
Major Amendment areas of San Diego County. These pools represent the
southern most
[[Page 19900]]
occurrences of the San Diego fairy shrimp. Due to rapid urbanization in
the on both sides of the United States and Mexican border the
preservation of these pools is essential for the survival of the San
Diego fairy shrimp. The pools proposed for critical habitat in subunit
A contain the endangered Otay mesa-mint (Pogogyne nudiuscula); subunit
D also supports the endangered Riverside fairy shrimp (Streptocephalus
woottoni); and subunit F include the endangered Orcutt's grass
(Orcuttia californica) and represent vernal pools with high biological
diversity. The Recovery Plan specifically identifies these vernal pools
as essential for recovery of the San Diego fairy shrimp because of
their role in stabilizing populations and habitat loss and in
reclassifying these species in future downlisting/delisting actions.
This southernmost unit is essential to the conservation of the San
Diego fairy shrimp because it maintains the ecological distribution and
genetic diversity of this species. Many of these vernal pools are
within the MSCP, and as previously stated in this rule, we have
considered, but have not proposed those vernal pools in reserve,
preserve, or other lands targeted for conservation areas within
approved HCPs, pursuant to section 4(b)(2) of the Act.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, permit, or carry
out do not destroy or adversely modify critical habitat. Destruction or
adverse modification of critical habitat occurs when a Federal action
directly or indirectly alters critical habitat to the extent that it
appreciably diminishes the value of critical habitat for the
conservation of the species. Individuals, organizations, States, local
governments, and other non-Federal entities are affected by the
designation of critical habitat only if their actions occur on Federal
lands, require a Federal permit, license, or other authorization, or
involve Federal funding.
In our regulations at 50 CFR 402.02, we define destruction or
adverse modification as ``a direct or indirect alteration that
appreciably diminishes the value of critical habitat for both the
survival and recovery of a listed species. Such alterations include,
but are not limited to: alterations adversely modifying any of those
physical or biological features that were the basis for determining the
habitat to be critical.'' However, in a March 15, 2001, decision of the
United States Court of Appeals for the Fifth Circuit (Sierra Club v.
U.S. Fish and Wildlife Service et al., F.3d 434), the Court found our
definition of destruction or adverse modification to be invalid. In
response to this decision, we are reviewing the regulatory definition
of adverse modification in relation to the conservation of the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened, and with respect to its
critical habitat, if any is designated or proposed. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires
Federal agencies to confer with us on any action that is likely to
jeopardize the continued existence of a proposed species or result in
destruction or adverse modification of proposed critical habitat.
Conference reports provide conservation recommendations to assist
Federal agencies in eliminating conflicts that may be caused by their
proposed actions. The conservation measures in a conference report are
advisory.
We may issue a formal conference report, if requested by the
Federal action agency. Formal conference reports include an opinion
that is prepared according to 50 CFR 402.14, as if the species was
listed or critical habitat designated. We may adopt the formal
conference report as the biological opinion when the species is listed
or critical habitat designated, if no substantial new information or
changes in the action alter the content of the opinion (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 such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation, the
Federal action agency would ensure that the permitted actions do not
destroy or adversely modify critical habitat.
If we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide ``reasonable and prudent alternatives'' to the
project, if any are identifiable. Reasonable and prudent alternatives
are defined at 50 CFR 402.02 as alternative actions identified during
consultation that can be implemented in a manner consistent with the
intended purpose of the action, that are consistent with the scope of
the Federal agency's legal authority and jurisdiction, that are
economically and technologically feasible, and that the Director
believes would avoid the likelihood of jeopardizing the continued
existence of listed species, or resulting in the destruction or adverse
modification of critical habitat.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions under certain
circumstances, including instances where critical habitat is
subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiating of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat, or adversely modify or destroy proposed critical
habitat.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and require that a section
7 consultation be conducted include, but are not limited to:
(1) Any activity that results in discharge of dredged or fill
material, excavation, or mechanized land clearing of ephemeral and/or
vernal pool basins (e.g., road and fence construction and maintenance,
right-of-way designation, airport improvement activities, and
regulation of agricultural activities) that constitutes jurisdictional
waters of the United States under the Clean Water Act;
(2) Any activity that alters the watershed, water quality, or water
quantity to an extent that water quality becomes unsuitable to support
San Diego fairy shrimp, or any activity that significantly affects the
natural hydrologic function of the vernal pool system; and
(3) Activities that could lead to the introduction of exotic
species into San Diego fairy shrimp habitat.
Activities that may destroy or adversely modify critical habitat
include those that alter the primary constituent elements to an extent
that the value of critical habitat for both the survival and recovery
of the San Diego fairy shrimp is appreciably reduced. We note that such
activities may also jeopardize the continued existence of the species.
We recognize that the proposed designation of critical habitat may
not
[[Page 19901]]
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons, we
want to ensure that the public is aware that critical habitat
designations do not signal that habitat outside the proposed
designation is unimportant or may not be required for recovery. Areas
outside the proposed critical habitat designation will continue to be
subject to conservation actions that may be implemented under section
7(a)(1) of the Act and to the regulatory protections afforded by the
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of
the Act. Critical habitat designations made on the basis of the best
available information at the time of designation will not control the
direction and substance of future recovery plans, habitat conservation
plans, or other species conservation planning efforts if new
information available to these planning efforts calls for a different
outcome.
Section 4(b)(8) of the Act requires us to evaluate briefly and
describe, in any proposed or final regulation that designates critical
habitat, those activities involving a Federal action that may adversely
modify such habitat or that may be affected by such designation.
Activities that may destroy or adversely modify critical habitat would
be those that alter the primary constituent elements to the extent that
the value of critical habitat for the conservation of the San Diego
fairy shrimp is appreciably reduced. We note that such activities may
also jeopardize the continued existence of the species. Those
activities that involve Federal action that may destroy or modify
critical habitat are listed above in our discussion of Section 7(a)(2).
If you have questions regarding whether specific activities will
constitute destruction or adverse modification of critical habitat,
contact the Field Supervisor, Carlsbad Fish and Wildlife Office (see
ADDRESSES section). Requests for copies of the regulations on listed
wildlife and inquiries about prohibitions and permits may be addressed
to the U.S. Fish and Wildlife Service, Branch of Endangered Species,
911 N.E. 11th Ave, Portland, Oregon 97232 (telephone 503/231-2063;
facsimile 503/231-6243).
All lands proposed as critical habitat are within the geographical
area occupied by the species and are necessary to preserve functioning
vernal pool habitat for the San Diego fairy shrimp. Federal agencies
already consult with us on activities in areas currently occupied by
the species, or if the species may be affected by the action, to ensure
that their actions do not jeopardize the continued existence of the
species. Thus, we do not anticipate substantial additional regulatory
protection will result from critical habitat designation, although
there may be consultations that result from Federal actions within
critical habitat in the watersheds associated with vernal pools.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial data
available and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species.
An analysis of the economic impacts of proposing critical habitat
for the San Diego fairy shrimp is being prepared. We will announcing
the availability of the draft economic analysis as soon as it is
completed, at which time we will seek public review and comment at that
time. Copies may be obtained from the Carlsbad Fish and Wildlife
Office's Internet Web site at http://carlsbad.fws.gov, or by contacting
the Carlsbad Fish and Wildlife Office directly (see ADDRESSES section)
Public Comments Solicited
It is our intent that any final action resulting from this proposal
will be as accurate as possible. Therefore, we solicit comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. Based on public comment, the final rule
could find areas not essential, appropriate for exclusion under either
3(5)(A) or 4(b)(2), or not appropriate for exclusion, in which case,
they would be made part of the designation. We particularly seek
comments concerning:
(1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Act, including
whether the benefits of designation will outweigh any threats to the
species that would result from the designation;
(2) Specific information on the amount and distribution of San
Diego fairy shrimp and vernal pool habitat, and what habitat is
essential to the conservation of the species and why;
(3) Land use designations and current or planned activities in the
areas proposed as critical habitat and their possible impacts on
proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, in particular, any impacts on
small entities or families;
(5) Economic and other values associated with designating critical
habitat for the San Diego fairy shrimp such as those derived from
nonconsumptive uses (e.g., hiking, camping, birdwatching, enhanced
watershed protection, improved air quality, increased soil retention,
``existence values,'' and reductions in administrative costs);
(6) Whether our approach to critical habitat designation could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments; and
(7) We have considered, but have not proposed the following areas
as critical habitat: mission-essential training areas on Camp
Pendleton, lands on MCAS Miramar, lands on the U.S. Navy's NRRF, and
lands in the San Diego Multiple Species Conservation Program because we
believe that: (1) Their value for conservation has been addressed by
existing protective actions, or (2) they are appropriate for exclusion
pursuant to the ``other relevant factor'' provisions of section
4(b)(2). We specifically solicit comment, however, on the inclusion or
exclusion of such areas and (a) whether these areas are essential; (b)
whether these areas warrant exclusion; and (c) the basis for not
designating these areas as critical habitat (section 3(5)(A) or section
4(b)(2)).
(8) The benefits of including or excluding from this critical
habitat designation lands within approved Habitat Conservation Plans.
(9) Are ``associated watersheds'' of these vernal pools essential
for the conservation of the species? If so, does the term need to be
defined and how should it be defined?
(10) The majority of area proposed as critical habitat consists of
upland areas that contain ``associated watersheds'' which may be needed
to preserve vernal pool hydrology. Does the extent of the upland areas
around the complexes of vernal pools proposed to be designated as
critical habitat comply with the regulatory requirement at 50 CFR
484.12(d)? Do these areas comprise ``a small local area'' within the
meaning of the example found in that provision,
[[Page 19902]]
and if not, what weight should be given to that example in the final
rule?
(11) Should all lands at Camp Pendleton be excluded from critical
habitat in light of the INRMP process, the formal consultation under
section 7 of the Act for upland species now underway, and possible
future needs to utilize different areas for military training?
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods: (1) You may
mail comments to the Field Supervisor at the address provided in the
ADDRESSES section above; (2) You may also comment via the internet to
FW1SDFS@r1.fws.gov. Please submit internet comments as an ASCII file
and avoid the use of special characters or any form of encryption.
Please also include ``Attn: RIN-1018-AI71'' in your e-mail subject
header and your name and return address in your internet message. If
you do not receive a confirmation from the system that we have received
your internet message, contact us directly by calling our Carlsbad Fish
and Wildlife Office at phone number 760-431-9440. Please note that the
internet address ``FW1SDFS@r1.fws.gov'' will be closed out at the
termination of the public comment period; or (3) You may hand-deliver
comments to our Carlsbad Fish and Wildlife Office (see ADDRESSES
section above).
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
address, you must state this prominently at the beginning of your
comment. However, we will not consider anonymous comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we will solicit the expert opinions of at least three
appropriate and independent specialists regarding this proposed rule.
The purpose of such review is to ensure listing decisions are based on
scientifically sound data, assumptions, and analyses. We will send
these peer reviewers copies of this proposed rule immediately following
publication in the Federal Register. We will invite these peer
reviewers to comment, during the public comment period, on the specific
assumptions and conclusions regarding the proposed designation of
critical habitat.
We will consider all comments and information received during the
60-day comment period on this proposed rule as we prepare our final
rulemaking. Accordingly, the final determination may differ from this
proposal.
Public Hearings
The Endangered Species Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days of the date of publication of the proposal in the Federal
Register. Such requests must be made in writing and be addressed to the
Field Supervisor (see ADDRESSES section). We will schedule public
hearings on this proposal, if any are requested, and announce the
dates, times, and places of those hearings in the Federal Register and
local newspapers at least 15 days prior to the first hearing.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical jargon that interferes with the clarity? (3) Does the format
of the proposed rule (grouping and order of the sections, use of
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the
description of the notice in the SUPPLEMENTARY INFORMATION section of
the preamble helpful in understanding the notice? (5) What else could
we do to make this proposed rule easier to understand?
Send a copy of any comments on how we could make this proposed rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You
may e-mail your comments to this address: Exsec@ios.doi.gov.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule and was reviewed by the Office of Management and
Budget (OMB). The Service is preparing a draft economic analysis of
this proposed action. The Service will use this analysis to meet the
requirement of section 4(b)(2) of the Act to determine the economic
consequences of designating the specific areas as critical habitat and
excluding any area from critical habitat if it is determined that the
benefits of such exclusion outweigh the benefits of specifying such
areas as part of the critical habitat, unless failure to designate such
area as critical habitat will lead to the extinction of the San Diego
fairy shrimp. This analysis will be made available for public review
and comment. Copies may be obtained from the Carlsbad Fish and Wildlife
Office's Internet website at http://carlsbad.fws.gov or by contacting
the Carlsbad Fish and Wildlife Office directly (see ADDRESSES section)
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects 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
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. SBREFA amended the
Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic effect on a substantial number of small
entities. SBREFA also amended the Regulatory Flexibility Act to require
a certification statement. In this proposed rule, we are certifying
that it will not have a significant effect on a substantial number of
small entities. The following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and
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town governments that serve fewer than 50,000 residents, as well as
small businesses (http://www.sba.gov/size/). 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 would 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, etc.). We apply the
``substantial number'' test individually to each industry to determine
if certification is appropriate. SBREFA does not explicitly define
either ``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 the area.
Similarly, this analysis considers the relative cost of compliance on
the revenues/profit margins of small entities in determining whether or
not entities incur a ``significant economic impact.'' Only small
entities that are expected to be directly affected by the designation
are considered in this portion of the analysis.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies; non-Federal activities are
not affected by the designation if they lack a Federal nexus. In areas
where the species is present, Federal agencies funding, permitting, or
implementing activities are already required to avoid jeopardizing the
continued existence of the San Diego fairy shrimp through consultation
with us under section 7 of the Act. If this critical habitat
designation is finalized, Federal agencies must also ensure that their
activities do not destroy or adversely modify designated critical
habitat through consultation with us. However, we do not believe this
will result in any significant additional regulatory burden on Federal
agencies or their applicants where the species may be present, because
consultation would already be required because of the presence of a
listed species.
In unoccupied areas, or areas of uncertain occupancy, designation
of critical habitat could trigger additional review of Federal
activities under section 7 of the Act, and may result in additional
requirements on Federal activities to avoid destroying or adversely
modifying critical habitat. Therefore, for the purposes of this review
and certification under the Regulatory Flexibility Act, we are assuming
that any future consultations in the areas designated as critical
habitat that are considered unoccupied, such as the watersheds
associated with occupied vernal pools, would result from the critical
habitat designation. Should a federally funded, permitted, or
implemented project be proposed that may affect designated critical
habitat, we will work with the Federal action agency and any applicant,
through section 7 consultation, to identify ways to implement the
proposed project while minimizing or avoiding any adverse effect to the
species or critical habitat. In our experience, the vast majority of
such projects can be successfully implemented with at most minor
changes that avoid significant economic impacts to project proponents.
On non-Federal lands, activities that do not require Federal
involvement would not be affected by the critical habitat designation.
Activities of an economic nature that are likely to occur on non-
Federal lands in the area encompassed by this proposed designation are
primarily commercial or residential development. None of the
developments recently approved by the local jurisdictions in these
areas have any Federal involvement, and we are not aware of a
substantial number of future activities on any of the proposed units
that would require Federal permitting or authorization; therefore, we
conclude that the proposed rule would not affect a substantial number
of small entities.
In general, two different mechanisms in section 7 consultations
could result in project modifications. 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, are economically and
technologically feasible, and would avoid jeopardizing the continued
existence of listed species or resulting 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 it
could obtain an exemption, 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 species, we may
identify reasonable and prudent measures designed to minimize the
amount or extent of take and require the Federal agency or applicant to
implement such measures through nondiscretionary terms and conditions.
However, the Act does not require terms and conditions to minimize
adverse effect to critical habitat. We may also 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 section 7 consultations 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. The kinds of actions that may be included
in future reasonable and prudent alternatives include avoidance,
conservation set-asides, management of competing non-native species,
restoration of degraded habitat, construction of protective fencing,
and regular monitoring. These measures are not likely to result in a
significant economic impact to project proponents.
As required under section 4(b)(2) of the Act, we will conduct an
analysis of
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the potential economic impacts of this proposed critical habitat
designation, and will make that analysis available for public review
and comment before finalizing this designation. However, court
deadlines require us to publish this proposed rule before the economic
analysis can be completed.
In summary, we have concluded that this proposed rule would not
result in a significant economic effect on a substantial number of
small entities. This rule would result in project modifications only
when proposed Federal activities would destroy or adversely modify
critical habitat. Even if a small entity is affected, we do not expect
it to result in a significant economic impact, as the measures included
in reasonable and prudent alternatives must be economically feasible
and consistent with the proposed action. The kinds of measures we
anticipate we would recommend can usually be implemented at low cost.
Therefore, we are certifying that the proposed designation of critical
habitat for the San Diego fairy shrimp will not have a significant
economic impact on a substantial number of small entities, and an
initial regulatory flexibility analysis is not required.
This discussion is based upon the information regarding potential
economic impact that is available to us at this time. This assessment
of economic effect may be modified prior to final rulemaking based upon
development and review of the draft economic analysis prepared pursuant
to section 4(b)(2) of the ESA and E.O. 12866.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2))
In the draft economic analysis, we will determine whether
designation of critical habitat will cause (a) any effect on the
economy of $100 million or more, (b) any increases in costs or prices
for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions, or (c) any significant
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises.
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
Although this proposed rule to designate critical habitat for the San
Diego fairy shrimp is a significant regulatory action under Executive
Order 12866, it is not expected to significantly affect energy
supplies, distribution, or use. Therefore, 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.)
The Service will use the economic analysis to evaluate consistency
with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing to designate approximately 2,468 ha (6,098 ac) of lands in
Orange and San Diego counties, California, as critical habitat for the
San Diego fairy shrimp in a takings implications assessment. This
preliminary assessment concludes that this proposed rule does not pose
significant takings implications.
Federalism
In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior policy, we
requested information from and coordinated development of this proposed
critical habitat designation with appropriate State resource agencies
in California. The proposed designation of critical habitat in areas
currently occupied by the San Diego fairy shrimp imposes no additional
significant restrictions beyond those currently in place and,
therefore, has little incremental impact on State and local governments
and their activities. The proposed designation of critical habitat in
unoccupied areas may require a conference under section 7 of the Act on
non-Federal lands (where a Federal nexus occurs) that might otherwise
not have occurred.
The proposed designation of critical habitat may have some benefit
to the State and local resource agencies in that the areas essential to
the conservation of this species are more clearly defined, and the
primary constituent elements of the habitat necessary to the survival
of this species are specifically identified. While this definition and
identification does not alter where and what Federally sponsored
activities may occur, it may assist local governments in long-range
planning (rather than waiting for case-by-case section 7 consultations
to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and does meet the requirements of
sections 3(a) and 3(b)(2) of the Order. We are proposing to designate
critical habitat in accordance with the provisions of the Endangered
Species Act. The rule uses standard property descriptions and
identifies the primary constituent elements within the designated areas
to assist the public in understanding the habitat needs