[Federal Register: December 12, 2007 (Volume 72, Number 238)] [Rules and Regulations] [Page 70647-70714] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr12de07-9] [[Page 70647]] ----------------------------------------------------------------------- Part II Department of the Interior ----------------------------------------------------------------------- Fish and Wildlife Service ----------------------------------------------------------------------- 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the San Diego Fairy Shrimp (Branchinecta sandiegonensis); Final Rule [[Page 70648]] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AV37 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the San Diego Fairy Shrimp (Branchinecta sandiegonensis) AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating revised final critical habitat for the San Diego fairy shrimp (Branchinecta sandiegonensis) under the Endangered Species Act of 1973, as amended (Act). Approximately 3,082 acres (ac) (1,248 hectares (ha)) of habitat in Orange and San Diego counties, California, are being designated as critical habitat for the San Diego fairy shrimp. This revised final designation constitutes a reduction of 943 ac (382 ha) from the 2000 designation of critical habitat for the San Diego fairy shrimp. DATE: This rule becomes effective on January 11, 2008. ADDRESSES: Comments and materials received, as well as supporting documentation used in the preparation of this revised final rule, will be available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011. The revised final rule, economic analysis, and maps are available on the Internet at http://www.fws.gov/carlsbad/. FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see ADDRESSES); telephone 760-431-9440; facsimile 760-431-5901. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339. SUPPLEMENTARY INFORMATION: Background It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the San Diego fairy shrimp in this revised final rule. For more information on the taxonomy, biology, and ecology of the San Diego fairy shrimp, please refer to the final listing rule published in the Federal Register on February 3, 1997 (62 FR 4925), the original proposed and final critical habitat rules published in the Federal Register on March 8, 2000 (65 FR 12181) and October 23, 2000 (65 FR 63438), respectively, and the proposed rule to revise critical habitat published in the Federal Register on April 22, 2003 (68 FR 19888). The San Diego fairy shrimp (Branchinecta sandiegonensis) is a small aquatic crustacean in the order Anostraca, generally restricted to vernal pools and other ephemeral (lasting a short time) basins in coastal Orange and San Diego Counties in southern California and in northwestern Baja California, Mexico. Vernal pools in southern California typically contain water in the winter and are dry in the summer. The San Diego fairy shrimp is a habitat specialist found in shallower pools that range in depth from 2 to 12 inches (in) (5 to 30 centimeters (cm)) (Simovich and Fugate 1992, p. 111; Hathaway and Simovich 1996, p. 670). San Diego fairy shrimp feed on algae, diatoms, and particulate organic matter (Parsick 2002, pp. 37-41, 65-70). Male San Diego fairy shrimp are distinguished from males of other species of Branchinecta by differences in the distal (located far from the point of attachment) tip of the second antennae. The females carry their eggs or cysts in an oval or elongate ventral brood sac (Eriksen and Belk 1999, pp. 20-24; Fugate 1993, p. 301). Females are distinguishable from females of other species of Branchinecta by the shape and length of the brood sac, the length of the ovary, and the presence of paired dorsolateral (located on the sides, toward the back) spines on five of the abdominal segments (Fugate 1993, p. 301). San Diego fairy shrimp occur in groups of vernal pools referred to as vernal pool complexes (Keeler-Wolf et al. 1998, p. 9). Vernal pool complexes tend to include between 5 and 50 vernal pools, although some contain as few as two vernal pools and some contain several hundred vernal pools. Vernal pools within a complex are generally hydrologically connected, meaning that water flows over the surface from one vernal pool basin to another and/or water flows and collects below ground such that the soil becomes saturated with water, and the vernal pool basins fill with water (Hanes et al. 1990, pp. 51-56). For this reason the vernal pool ecosystems, on which the San Diego fairy shrimp depend, are best described from a watershed perspective (Service 1998a, p. 59). The vernal pool watershed includes all areas around a vernal pool complex needed to collect rainfall and adequately fill the vernal pool basins within the vernal pool complex. In rainy years, California's vernal pools begin to fill following the onset of fall and winter rains. Some pools in a complex have substantial watersheds that contribute to filling the vernal pools, while others fill almost entirely from rainfall (Hanes et al. 1990, pp. 51-54; Hanes and Stromberg 1998, pp. 38, 47-49). Subsurface inflows from surrounding soils may also be an important factor in the filling of some vernal pools (Hanes et al. 1990, pp. 55-56; Hanes and Stromberg 1998, pp. 41- 42). A recent mitochondrial DNA (genetic sequence) study sampled 223 San Diego fairy shrimp from 24 vernal pool complexes (Bohonak 2004, p. 2). Researchers identified 39 unique alleles; each unique allele was found only at specific vernal pool complexes or within isolated geographic areas (Bohonak 2004, pp. 2-9). This indicates that fairy shrimp within a vernal pool complex or in limited geographic areas are more closely related to each other than to those at more distant locations. This analysis of mitochondrial DNA also indicates that there are two distinct genetic clades (genetic groups within a taxa) among populations of San Diego fairy shrimp, referred to as Group A and Group B (Bohonak 2004, p. 3; Bohonak 2007, p. 1). The difference in the alleles within either of the clades is less that one percent divergence; however, between the two groups there is a 2.5 percent divergence between pairs of alleles. Bohonak states that ``this means individuals from Group A and B have been isolated from one another biologically for tens of thousands or perhaps millions of years with little or no dispersal or hybridization (2004, p. 3).'' The distribution of the two clades is unusual because with the degree of difference between the two clades one would expect them to be geographically separate; however, the two clades are somewhat intermixed geographically. The extant range of the San Diego fairy shrimp is restricted to San Diego and Orange Counties in the United States, and in northwestern Baja California in Mexico. San Diego County supports the largest number of remaining vernal pools occupied by the San Diego fairy shrimp. Scientists estimate vernal pool soils historically covered 200 square miles (mi) (518 square kilometers (km)) in San Diego County; habitat losses have been extensive, only remnants of most vernal pool landscapes remain (Bauder and McMillan 1998, p. 66). The majority of vernal pool habitat in coastal Orange County has also been lost; currently there are only five vernal pool complexes in Orange County known to [[Page 70649]] support the San Diego fairy shrimp (Riefner and Pryor, p. 300; Keeler- Wolf et al. 1998, p. 63; Mattoni and Longcore 1997, pp. 71, 89; CNDDB 2004, pp. 9, 11, 12, 29-32). Previous Federal Actions On October 23, 2000, we published a final rule designating approximately 4,025 ac (1,629 ha) of critical habitat for the San Diego fairy shrimp in Orange and San Diego Counties, California (65 FR 63438). Following publication of the final rule, a lawsuit was filed against the Service challenging the critical habitat designation by multiple parties, including the Building Industry Association of Southern California, the National Association of Home Builders, and the Foothill/Eastern Transportation Corridor Agency (Building Industry Association of Southern California et al. v. Norton, CV 01-7028 (D.C.C., filed 1/17/01) (venue subsequently transferred to C.D.Cal. and case assigned CV 01-07028). On June 11, 2002, the U.S. District Court for the Central District of California granted our request for a remand of the San Diego fairy shrimp critical habitat designation so that we could reconsider the economic impact of designating any particular area as critical habitat. The Court ordered us to submit a new proposed rule to the Federal Register by April 11, 2003. On April 22, 2003, we published a proposed rule to designate approximately 6,098 ac (2,468 ha) of land within Orange and San Diego counties, California, as critical habitat for the San Diego fairy shrimp in the Federal Register, and we accepted public comments on the proposed revision until June 23, 2003 (68 FR 19888). On April 8, 2004 (69 FR 18516), we published a notice in the Federal Register announcing: (1) The availability of the draft economic analysis (DEA) of the proposed rule to revise critical habitat for public review; (2) the reopening of the public comment period on the proposed rule; and (3) the scheduling of public hearings on the proposed critical habitat designation and DEA. Public hearings were conducted on April 29, 2004, in Carlsbad, California. The second public comment period closed on May 10, 2004. The Service initiated work on the revised final critical habitat rule for the San Diego fairy shrimp, but because of other court-ordered priorities we did not complete the rule. On February 8, 2007, a motion was filed by the Plaintiffs requesting the Court to direct us to finalize the revised critical habitat designation for the San Diego fairy shrimp. We reached an agreement with the Plaintiffs whereby a revised final designation would be completed on or before November 1, 2007. On April 3, 2007, we published a notice in the Federal Register announcing the reopening of the public comment period for the April 22, 2003, proposed rule to revise critical habitat for the San Diego fairy shrimp, and we accepted comments and information until May 3, 2007 (72 FR 15857). This rule is being finalized in compliance with the court order. Summary of Comments and Recommendations As discussed in the Previous Federal Actions section above, we have opened three public comment periods associated with the 2003 proposed rule to revise critical habitat for the San Diego fairy shrimp; the second and third comment periods also sought public comment on the associated DEA. During these comment periods, we requested all interested parties to submit comments or information related to the proposed revision to the critical habitat designation, including, but not limited to, the following: Unit boundaries; species occurrence information and distribution; land use designations that may affect critical habitat; potential economic effects of the proposed designation; benefits associated with critical habitat designation; areas considered but not proposed for designation and the associated rationale for the non-inclusion/exclusion of these areas; and methods used to designate critical habitat. We informed all appropriate entities of the opening of these comment periods, including State and Federal agencies, County governments, elected officials, and other interested parties through telephone calls, letters, and news releases sent by facsimile, by U.S. mail, and/or by electronic mail. During the April 22 to June 23, 2003, comment period, we also invited public comment through the publication of notices in the following newspapers: Los Angeles Times, Orange County Register, The Press-Enterprise, San Bernardino Sun, and the San Diego Union-Tribune. During the April 8 to May 10, 2004, comment period, we announced the date and times of two public hearings that were held on the 2003 proposed revision to designated critical habitat and DEA. Hearings were held on April 29, 2004, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. in Carlsbad, California. Transcripts of these hearings are available for inspection (see FOR FURTHER INFORMATION CONTACT section above). During the comment period that opened on April 22, 2003, and closed on June 23, 2003, we received 43 comments directly addressing the proposed critical habitat designation: 4 from peer reviewers, 3 from Federal agencies, 3 from local jurisdictions, and 33 from organizations or individuals. During the comment period that opened on April 8, 2004, and closed on May 10, 2004, we received 11 comments directly addressing the proposed critical habitat designation and the DEA. Of these latter comments, one was from a State agency, 5 were from local jurisdictions, and 5 were from organizations or individuals. During the comment period that opened on April 3, 2007, and closed May 3, 2007, we received 12 comments directly addressing the proposed revision to critical habitat and the DEA. Of these comments, 3 were from Federal agencies, 3 were from local jurisdictions, and 6 were from organizations or individuals. Peer Review In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from eight individuals with scientific expertise that included familiarity with the species, the geographic region where the species occurs, and conservation biology principles. We received responses from four of the peer reviewers. The peer reviewers were generally supportive of the designation of critical habitat. However, they stressed the importance of the genetic uniqueness of each population of San Diego fairy shrimp and the need to identify and preserve all remaining populations of the species. We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for the San Diego fairy shrimp. All comments received were grouped into general issue categories relating to the proposed rule to revise critical habitat for San Diego fairy shrimp and are addressed in the following summary and incorporated into this revised final rule as appropriate. Peer Review Comments Comment 1: Three peer reviewers stated we should take the genetic information on the San Diego fairy shrimp into consideration when designating critical habitat. The peer reviewers stated that allozyme (enzyme) studies (citing Davies et al. 1997) and mitochondrial DNA (genetic sequence) studies (citing Bohonak 2004) indicate that within pool complexes, there is a low degree of genetic variation, but [[Page 70650]] between vernal pool complexes there is a high degree of genetic variation. The analysis of mitochondrial DNA indicates that there are two distinct genetic clades (genetic groups within a taxa) among populations of San Diego fairy shrimp (Bohonak 2004, p. 3). The peer reviewers indicated that the two distinct genetic clades are important for the conservation of the San Diego fairy shrimp. Our Response: We agree with the peer reviewers that the preservation of the genetic diversity of the San Diego fairy shrimp across its range is important to the conservation of this species, and we believe that we have captured the two distinct genetic clades referenced by the peer reviewers and described in the background section of this revised final rule in our designation. The distribution of the two clades is unusual because the two clades are not geographically separate across the extant range of the species. Our final designation captures a range of vernal pool complexes within each identified clade. Vernal pool complexes sampled in Fairview Park (subunit 1B) (Bohonak 2007, p. 1), Del Mar Mesa (subunit 4A/B), Carmel Mountain (subunit 4E and 4F), Lopez Ridge (subunit 4H), Winterwood (subunit 4I), Otay Mesa (subunit 5F), Lower Otay Reservoir (subunit 5H), and Marron Valley (subunit 5I) are in ``Group A'' (Bohonak 2004, pp. 3-9). These sites represent 10 of 16 sites in ``Group A'' sampled by researchers (Bohonak 2004, pp. 7-9). Vernal pool complexes sampled at San Onofre State Beach (subunit 2A) (Bohonak 2007, p. 1), Ramona (subunits 3E.1-3E.4), SANDER (subunit 4K), Montgomery Field (subunit 4M), Murphy Canyon (subunit 4C), and Chollas Heights (subunit 4D) are in ``Group B'' (Bohonak 2004, pp. 3-9). These sites represent 6 of 12 sites in ``Group B'' sampled by researches (Bohonak 2004, pp. 7-9; Bohonak 2007, p. 1). Comment 2: Three peer reviewers expressed concern that Habitat Conservation Plans (HCPs) and Integrated Natural Resource Management Plans (INRMPs) may not provide the same level of protection for the San Diego fairy shrimp as critical habitat, and therefore can not be substituted for the designation of critical habitat. Our Response: Where a Federal nexus exists, lands designated as critical habitat are protected from destruction or adverse modification under section 7 of the Act. However, to be successful, the conservation of the San Diego fairy shrimp relies on proactive conservation and management of vernal pool complexes rather than mere avoidance of certain habitat impacts under section 7 of the Act. Habitat conservation plans and INRMPs typically incorporate on-going management and protection for the San Diego fairy shrimp that will benefit, and is critical to, the long-term conservation of the species. This type of long-term management would not necessarily result from a section 7 consultation on an area where critical habitat has been designated. In addition, the protection and management afforded San Diego fairy shrimp habitat under HCPs extend to private lands that may otherwise lack a Federal nexus triggering consultation under section 7 of the Act. Comment 3: One peer reviewer stressed the importance of viewing vernal pools as ecosystems with several important components, such as intact upland habitat and functional watersheds that contribute to the health and productivity of the vernal pool ecosystem and to the conservation of the San Diego fairy shrimp. Our Response: We have addressed this comment by providing a more detailed description of the primary constituent elements (PCEs) in this revised final rule. The boundaries of each critical habitat subunit generally correspond to the boundaries of functional watersheds surrounding the included vernal pool complexes. We have attempted to incorporate all of the features that the peer reviewer described that we have determined to be essential to the conservation of the San Diego fairy shrimp (see the Primary Constituent Elements section for further discussion of this topic). Public Comments INRMPs and Department of Defense Lands We received several comments related to the exclusion and exemption of Department of Defense (DOD) lands from the revised final critical habitat. We received comments from the U.S. Navy (Navy) regarding the proposed designation of critical habitat on Marine Corps Base Camp Pendleton (MCB Camp Pendleton), and separate comments regarding the proposed designation on Marine Corps Air Station Miramar (MCAS Miramar), Naval Radio Receiving Facility (NRRF), Naval Outlying Landing Field (NOLF), and Navy housing at Chollas Heights and Murphy Canyon under Naval Base Coronado. We also received comments from individuals, some stating that DOD lands should be designated as critical habitat, and others stating that DOD lands should not be encumbered by critical habitat. Comment 4: The Navy requested that critical habitat not be designated at MCB Camp Pendleton, MCAS Miramar, NRRF, and NOLF, based on approved INRMPs for these installations and adverse affects to military training and readiness. Another commenter also requested that military lands at MCB Camp Pendleton not be designated as critical habitat. Our Response: In the April 22, 2003, proposed rule to revise critical habitat for the San Diego fairy shrimp (68 FR 19888), we considered but did not propose critical habitat on MCAS Miramar, NRRF, and on mission essential training areas at MCB Camp Pendleton under section 4(b)(2) of the Act. The April 22, 2003, rule proposed to designate some non-training areas at MCP Camp Pendleton and at NOLF. In this revised final designation, we have determined that all the INRMPs in place at MCAS Miramar, NRRF, MCB Camp Pendleton, and NOLF provide a benefit to San Diego fairy shrimp, and therefore these lands are exempt from this revised final critical habitat under section 4(a)(3) of the Act (see Exemptions and Exclusions section below for a detailed discussion of these exemptions). Comment 5: The Navy requested that critical habitat not be designated at the vernal pool areas at Murphy Canyon Navy Housing and Chollas Heights Navy Housing because they plan to complete an INRMP for these areas. The Navy continued to request that should critical habitat be designated at these areas that the Service commit to revisiting the designation upon the Navy's completion of an INRMP or other management plan for these areas. Our Response: The vernal pool complexes at Murphy Canyon Navy Housing and Chollas Heights areas are not covered under an INRMP at this time; therefore they are not appropriate to consider for exemption under section 4(a)(3) of the Act. The vernal pool complexes at Murphy Canyon Navy Housing and Chollas Heights areas have been preserved for the benefit of the San Diego fairy shrimp and other vernal pool species. The vernal pool complexes at these two Housing Areas provide high quality habitat for the San Diego fairy shrimp and are some of the last remaining areas in urban San Diego that support this species. We applaud the past conservation work that the Navy has implemented at these two housing areas, and we look forward to working with the Navy to minimize any financial or regulatory burden associated with this critical habitat designation. It is our understanding that the Navy is working to complete an INRMP that will include these two areas and will secure funding [[Page 70651]] for the long-term management of these two areas for the benefit of the San Diego fairy shrimp. Features essential to the conservation of the San Diego fairy shrimp in these areas continue to require special management considerations and protections and are therefore included in this revised final designation. At such time as the Navy completes an INRMP for these areas, we can assess any benefits provided to the San Diego fairy shrimp and revise the designation through the rulemaking process consistent with available funding and program priorities. Comment 6: Some commenters stated that our exclusion of INRMPs is not legally or scientifically justified because the commenter believes that the INRMPs, specifically those for MCB Camp Pendleton and MCAS Miramar, do not adequately protect vernal pools or San Diego fairy shrimp. Our Response: Section 318 of National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended section 4(a)(3) of Act to address the relationship of INRMPs to critical habitat by adding a new section, 4(a)(3)(B). This amendment prohibits us from designating as critical habitat any lands or other geographical areas owned or controlled by DOD, or designated for its use, that are subject to an INRMP prepared under section 101 of the Sikes Act, if the Secretary of the Interior (Secretary) determines, in writing, that such plan provides a benefit to the species for which critical habitat is proposed for designation. Lands at MCB Camp Pendleton, MCAS Miramar, NRRF, and NOLF are exempt from critical habitat for the San Diego fairy shrimp under section 4(a)(3) of the Act as we have determined that these installations' INRMPs benefit the San Diego fairy shrimp and features essential to its conservation (see Exemptions and Exclusions section below for a detailed discussion on exclusions and exemptions). We believe that these exemptions are legally and scientifically justified because implementation of these INRMPs will benefit the San Diego fairy shrimp and its habitat at each installation. Habitat Conservation Plans and Natural Community Conservation Plans We received several comments related to the exclusion or inclusion of Habitat Conservation Plans (HCPs) and Natural Community Conservation Plans (NCCPs). The comments that we received have been paraphrased and grouped to better clarify how we have handled HCPs and NCCPs in this revised final designation of critical habitat. Comment 7: We received comments that discussed the benefits of excluding critical habitat in areas covered by HCPs and NCCPs and comments that discussed the benefits of designating critical habitat in areas covered by HCPs and NCCPs. Commenters that supported the exclusion of areas covered by HCPs and NCCPs stated that these plans provide superior conservation than the section 7 process because HCPs and NCCPs plan for conservation at the landscape level rather than using a project-by-project approach. Supporters of the exclusion of critical habitat in these areas stated that the exclusion of critical habitat will: Benefit partnerships and future planning; prevent additional regulation; avoid legal challenges that HCPs will result in ``adverse modification'' of critical habitat; and support Implementation Agreements. Supporters of the designation of critical habitat in areas covered by HCPs and NCCPs stated that the designation of critical habitat provides additional protection and conservation benefit to the San Diego fairy shrimp, which is needed to avoid impacts that the HCPs and NCCPs do not protect against. Other commenters stated that HCPs and NCCPs are often under-funded, and actual implementation is sometimes ineffective. One commenter stated that the exclusion of areas covered by HCPs from critical habitat is neither legally sound nor appropriate as demonstrated by the October 13, 2006, ruling by the U.S. District Court for the Southern District of California (Southwest Center for Biological Diversity v. Bartel, CV 98-2234), which clearly rules that the Multiple Species Conservation Program (MSCP) is ineffective, specifically for protecting the fairy shrimp. The commenter stated that the MSCP cannot act as a surrogate for critical habitat, and lands under the MSCP (and other HCPs) should not be excluded from critical habitat designation. Our Response: We believe that regional HCPs and NCCPs typically provide for greater conservation benefits to species than project-by- project consultations conducted under section 7 of the Act. Because large HCPs approach conservation from a regional perspective, these plans have the advantage of addressing conservation issues from a coordinated, integrated perspective rather than a piecemeal project-by- project approach. Moreover, regional HCPs typically provide for the proactive monitoring and management of conserved lands, which is important to the survival and recovery of the San Diego fairy shrimp. Such conservation needs are typically not addressed through the application of the statutory prohibition on adverse modification or destruction of critical habitat. Section 4(b)(2) of the Act authorizes the Secretary to consider the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined that the benefits of exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate an area as critical habitat will result in the extinction of the species. We believe that the exclusions that we made in this final revised rule are legally supported under section 4(b)(2) of the Act and scientifically justified because of the level of protection and long-term conservation for the San Diego fairy shrimp that are a result of the HCPs that we have excluded. Please see the Exemptions and Exclusions section in this revised final rule for a detailed analysis on why we reaffirmed our 2003 determination that the benefit of excluding many of these areas from critical habitat is greater than the benefit of including them in a critical habitat designation. In response to the comment on the Southwest Center for Biological Diversity v. Bartel, (CV 98-2234) ruling, we have fully considered this significant information. In this challenge, brought by 14 environmental organizations, the court held that the protections afforded the San Diego fairy shrimp and six other vernal pool species under the City of San Diego's MSCP subarea plan are inadequate, and the Service's decision to issue an incidental take permit to the City based on the subarea plan was arbitrary and capricious. The court enjoined the incidental take permit with respect to ongoing and future land use activities that affect vernal pool habitat. The court concluded, in part, that the approach adopted in the City's MSCP subarea plan for evaluating project impacts on vernal pool species through the ACOE's site-specific permitting process under section 404 of the Clean Water Act had been effectively eliminated by the United States Supreme Court's SWANCC decision and that the remaining protections contained in the MSCP subarea plan do not adequately protect the San Diego fairy shrimp. As a result of the decision, we have designated as critical habitat lands covered by the City of San Diego's subarea plan that were considered, but not proposed, in the 2003 revised proposed rule (see Summary of Changes From Previously Designated Critical Habitat and 2003 Proposed Rule section [[Page 70652]] and Unit Descriptions section below for more details). Comment 8: Some commenters requested that we exclude pending HCPs and lands enrolled in the NCCP program be excluded under section 4(b)(2) of the Act or that we remove designated critical habitat concurrent with the final approval of an HCP or NCCP. Commenters recommended the establishment of a set of standards for HCPs and NCCPs that would provide for the automatic removal of these areas from critical habitat at the time these plans are completed. Some commenters stated that the designation of critical habitat in these areas may have a negative effect on entities pursuing an HCP and deter the completion of these pending HCPs. Specifically, we received requests to exclude the following pending HCPs: the Orange County Southern Subregion Habitat Conservation Program (Southern Subregion HCP); the City of Carlsbad Habitat Management Plan (Carlsbad HMP) under the Northwestern San Diego County Multiple Habitat Conservation Program (MHCP); and the County of San Diego's HCP covering the proposed critical habitat in Ramona. Our Response: Although we believe that an NCCP/HCP completed in the future will conserve the San Diego fairy shrimp if it is a covered species under the plan, we are not able to automatically remove designated critical habitat. In order to revise a critical habitat designation to take into consideration a completed NCCP or HCP, we are required under sections 4(b)(5) and 4(b)(6) of the Act to follow the appropriate rulemaking process, consistent with available funding and program priorities. We have reanalyzed the areas that were covered by pending HCPs or NCCPs at the time we proposed critical habitat and we have made the following conclusions. The Southern Subregion HCP was completed on January 10, 2007. This plan provides for the conservation of the San Diego fairy shrimp in critical habitat subunits 1D and 1E. We have determined that the benefits of exclusion outweigh the benefits of inclusion for these subunits, and therefore we have excluded these subunits from critical habitat under section 4(b)(2) of the Act (see the Exemptions and Exclusion section for more details on this exclusion.) The Carlsbad HMP under the MHCP was completed on November 15, 2004. This plan provides for the conditional coverage of the San Diego fairy shrimp; however, the coverage of this species is contingent on the specific commitment to manage vernal pool habitat within this plan. At this time the City of Carlsbad has not committed to manage vernal pool habitat or include the area we identified as critical habitat within this plan (subunit 2G); therefore the Carlsbad HMP under the MHCP does not cover the San Diego fairy shrimp at this time, and we have not excluded lands covered under this plan from critical habitat. At this time the HCP for northern San Diego County is still in the process of being written. No draft of this plan is available for public review. Therefore, we have not excluded lands covered under this plan from critical habitat in and around Ramona (subunits 3E.1, 3E.2, 3E.3, and 3E.4). Comment 9: We received comments requesting that we exclude the area covered by the San Diego Gas & Electric (SDG&E) NCCP/HCP. Our Response: We have reviewed the appropriateness of excluding lands covered by the SDG&E NCCP/HCP and determined that SDG&E does not own any lands containing features we have determined essential for the conservation of the San Diego fairy shrimp. Although SDG&E is bound by this NCCP/HCP on all easements and access roads that we have determined contain features essential to the conservation of the San Diego fairy shrimp, the actual owners of the land covered by the SDG&E NCCP/HCP are not bound by this plan. Therefore we believe it would be inappropriate to consider lands not under the control of SDG&E for exclusion based on the coverage provided in this NCCP/HCP. Comment 10: We received a comment requesting that we reaffirm our exclusion of the Orange County Central-Coastal NCCP/HCP (Central- Coastal NCCP/HCP) in this final revised critical habitat. Our Response: In the April 22, 2003, proposed rule to designate revised critical habitat for the San Diego fairy shrimp, we discussed the Central-Coastal NCCP/HCP and stated that areas essential to the San Diego fairy shrimp covered by this plan should be excluded from critical habitat. In our review of the proposed critical habitat we found that, although critical habitat subunits 1A, 1B, and 1C are all near the boundary of this plan, there are no areas containing features essential to the San Diego fairy shrimp within the area covered by the Central-Coastal NCCP/HCP. Furthermore, we do not know of any vernal pools occupied by the San Diego fairy shrimp within the area covered by the Central-Coastal NCCP/HCP. Therefore, we have no reason to include a discussion of the Central-Coastal NCCP/HCP in this revised final designation of critical habitat. Other Comments on Inclusions, Exclusions, and Removals Comment 11: One commenter requested that we exclude the Shaw Lorenz project site on Del Mar Mesa from critical habitat based on the conservation actions that the developer of the site is undertaking as part of this development. Our Response: The vernal pool habitat on the Shaw Lorenz project site was not known to be occupied at the time of the proposed rule and the Shaw Lorenz project site was not considered in the proposed rule to revise critical habitat (68 FR 19888, April 22, 2003). Therefore, we are not designating lands at the Shaw Lorenz project site as critical habitat for the San Diego fairy shrimp. Comment 12: The Army Corps of Engineers (ACOE) raised the following issues in their comments: (1) Some lands owned by the Department of Homeland Security (DHS) within proposed critical habitat subunits 5D and 5F have already been disturbed and developed by the construction of the 14-Mile Border Infrastructure System (BIS) project along the United States/Mexico border and should be removed from critical habitat; (2) lands owned by the DHS located north of the BIS within proposed critical habitat subunit 5F are being conserved by the DHS and should not be designated as critical habitat under section 3(5)(A) or should be excluded under section 4(b)(2) of the Act; and (3) lands within the footprint of the BIS do not or will not contain any of the PCEs for the San Diego fairy shrimp because of their use as an active enforcement zone subject to ongoing vehicular use. Our Response: We evaluated habitat on lands owned by the DHS within proposed subunits 5D and 5F, and removed or excluded all DHS-owned lands from this final designation. Some portions of the BIS project have already been completed and the habitat impacted no longer contains the PCEs essential to support the San Diego fairy shrimp; therefore, we removed these lands from the critical habitat designation. Please see the Summary of Changes From Previously Designated Critical Habitat and 2003 Proposed Rule section for more information about the removal of these lands from critical habitat. The remaining 29 ac (12 ha) of DHS- owned land within subunit 5F includes a vernal pool restoration site (Arnie's Point) where the DHS is offsetting impacts to vernal pool habitat associated with the construction of the BIS. The DHS is implementing conservation measures for the San Diego [[Page 70653]] fairy shrimp at Arnie's Point even though they have a waiver exempting them from obligations under section 7 of the Act. The entire strip of DHS lands (29 ac (12 ha)) along the U.S./Mexico border that meet the definition of critical habitat are important to national security. We determined that the benefits of excluding this area from critical habitat outweigh the benefits of including this area in critical habitat. A detailed discussion of our rationale for excluding these lands is provided in the Exemptions and Exclusions section of this revised final rule. Comment 13: One commenter disagreed with our proposed critical habitat unit for the land in East Otay Mesa. The commenter stated that some of the areas proposed as critical habitat have been developed. The commenter concluded that the mapping of the critical habitat is inaccurate. Another commenter provided comments on a specific area on Otay Mesa. This commenter stated that proposed critical habitat subunit 5D is completely within either the City of San Diego subarea plan under the MSCP or the County of San Diego subarea plan under the MSCP. The commenter added that a significant portion of the proposed critical habitat in subunit 5D, including nearly 100 percent of the Otay Crossings Commerce Park project, is within the MSCP boundaries. The commenter stated that the inclusion of the MSCP land in critical habitat is counter to the involvement of the Service in the HCP process. The commenter stated that the Otay Crossings Commerce Park project site has been surveyed repeatedly for vernal pools and San Diego fairy shrimp and only vernal pools that were present on the site in the recent past have been eliminated by the construction of the BIS project. The commenter indicated that the East Otay Mesa area supports relatively few known locations of the listed San Diego fairy shrimp, and that these locations are scattered and are not vernal pool complexes. The commenter stated that the mesa area generally slopes to the south, providing limited flat areas where fairy shrimp pools could become established. The commenter concluded that the designation of this area as critical habitat for the San Diego fairy shrimp would not afford additional benefits to the species and would not play a significant role in the species' recovery. Our Response: The area identified in the April 22, 2003, proposed rule to revise critical habitat for San Diego fairy shrimp on East Otay Mesa was reevaluated at the suggestion of the commenters. Some of the land proposed as critical habitat was removed because it did not contain the PCEs, such as the lands owned by the DHS in subunit 5D. However, we found that the majority of the area was appropriately mapped and is included in the revised final designation. The areas we are designating as critical habitat contain the features essential for the conservation of the San Diego fairy shrimp. Critical habitat subunit 5D on eastern Otay Mesa contains vernal pools that support known locations of the San Diego fairy shrimp and the watershed area necessary to maintain the vernal pools. The area designated as critical habitat gently slopes to the south and contains several vernal pools dispersed across an area of approximately 391 ac (158 ha). The area on East Otay Mesa included in the designation is relatively undamaged by development and off-road vehicle activity. This area is entirely within the County of San Diego's Major and Minor Amendment Areas of the MSCP, which are not covered as part of the County's approved MSCP subarea plan. Therefore, it is not appropriate to exclude these lands because of their location within the boundaries of the MSCP (see Exemptions and Exclusions section below for a detailed discussion). Criteria and Methodology Comment 14: Some commenters stated that the Service has deferred determination of whether specific areas contain PCEs, leaving landowners without effective notice as to whether their property contains critical habitat. Our Response: We have determined that all of the designated units contain all of the PCEs (see Unit Descriptions section below). In our proposed rule, we provided a description of the PCEs and maps of the areas that we proposed for critical habitat in the Federal Register. Additional maps showing all areas containing features arranged in the quantity and spatial configuration essential for the conservation of the San Diego fairy shrimp were made available to the public for review and comment on our Web site. Also, the contact information for the Carlsbad Fish and Wildlife Office was provided to the public. These resources were readily available to any landowner with a question regarding the critical habitat proposal, including the PCEs. We believe these measures effectively notified landowners concerning the proposed revised designation of critical habitat. Furthermore, in this revised final rule, we have re-evaluated all units and removed any areas that do not contain the PCEs (see Summary of Changes From Previously Designated Critical Habitat and 2003 Proposed Rule section below). Where possible, the boundaries of final critical habitat have been refined to remove lands containing features such as roads, buildings, and other infrastructure that do not contain the PCEs; however, it was not possible to exclude all such areas from the designation. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed areas. Any such structures and the land under them inadvertently left inside critical habitat boundaries shown on the maps of this revised final rule have been excluded by text and are not designated as critical habitat. Please refer to the Criteria Used to Identify Critical Habitat section below for more information about the mapping methodology. Landowners needing assistance in determining whether their property lies within designated critical habitat can contact the Carlsbad Fish and Wildlife Office for assistance (see ADDRESSES). Comment 15: One commenter indicated that the mapping methodology to identify areas for critical habitat is too general, and does not adequately account for site-specific analysis of the size and attributes of the vernal pools. Another commenter indicated that we had no scientific basis for using a 328 feet (ft) (100 meters (m)) grid for mapping of critical habitat. Our Response: In the April 22, 2003, proposed rule we used a 328 feet (ft) (100 meters (m)) grid to delineate critical habitat. In order to make our mapping more specific we are no longer using the 328 feet (ft) (100 meters (m)) grid, instead we are mapping the specific areas that contain the PCEs for this species. We used a number of data sources to map the vernal pool complexes identified as critical habitat in this revised final rule. The vernal pool and San Diego fairy shrimp data referenced for this revised final rule include: Beauchamp and Cass 1979 (pp. 1-15), Zedler and Ebert 1979 (pp. 1-150), Bauder 1986 (pp. 1- 29, Appendices), City of San Diego 2003 (pp. 1-125, Appendices), survey reports for San Diego fairy shrimp from 10(A)(1)(a) permits, and California Natural Diversity Database (CNDDB) (2004, 2007) information. In addition to this location data for vernal pools and San Diego fairy shrimp, we used topographical maps, soil maps (Bowman 1973, pp. 7-17), and aerial imagery to capture the PCEs associated with each vernal pool complex designated as critical habitat. We also relied on information obtained from site visits to vernal pool complexes to verify the [[Page 70654]] presence of the PCEs in the areas that we identified as critical habitat. Comment 16: One commenter stated that it is important to designate the entire area within each vernal pool complex, including the watershed of the vernal pool, in order to provide habitat for animals that are vectors for dispersal of San Diego fairy shrimp cysts. Another commenter provided similar information to specific vernal pool complexes in San Marcos, California. Our Response: This revised final designation includes vernal pool basins and the associated watersheds necessary to support the San Diego fairy shrimp; however, we did not include larger areas of habitat needed for animal dispersal vectors. We did not have enough specific information on this topic to include other areas with any degree of certainty. We believe that our discussion of the PCEs adequately captures the physical and biological features essential for conservation of the San Diego fairy shrimp (see Primary Constituent Elements section below for details). The information regarding vernal pool complexes added to the information that we previously had on the vernal pools in San Marcos; however, it did not significantly change our analysis of this area. Comment 17: One commenter stated that stochastic (random) events could drive the species to extinction since it no longer has the ability to meet the challenges of environmental or human-caused stress. The commenter stated that the exclusion of any area from critical habitat could result in the extinction of the San Diego fairy shrimp. Our Response: We agree that stochastic events could negatively impact the San Diego fairy shrimp throughout its range. We reaffirmed our 2003 determination to exclude areas covered by HCPs that provide for the conservation of vernal pool habitat and the San Diego fairy shrimp because these plans incorporate management and monitoring for vernal pool ecosystems. As environmental conditions change, management of these areas will also change to address new threats to the species and its habitat. The areas we excluded also provide for management actions to address human induced stresses such as off-road vehicle use or the illegal dumping of trash in preserve areas. We determined the exclusion of these areas from critical habitat designation under section 4(b)(2) of the Act will not result in the extinction of the San Diego fairy shrimp (see Exemptions and Exclusions section below for a detailed discussion). Comment 18: Several commenters requested that the Service expand the proposed critical habitat to include all essential vernal pools identified in the Recovery Plan for Vernal Pools of Southern California (recovery plan) (Service 1998a), including the vernal pools listed in appendices F and G. Our Response: We believe that this final revised critical habitat reflects the intent of the recovery plan (Service 1998a). The 1998 recovery plan outlined four recovery criteria for the seven federally listed vernal pool species occurring in Southern California. In sum the recovery criteria state that: (1) Existing vernal pools and their associated watersheds that contain a federally-listed species should be secured for that specific supported species; (2) existing vernal pools and their associated watersheds need to be secured in a configuration that maintains habitat function and species viability (as determined by future research); (3) secured vernal pools be enhanced or restored such that population levels of existing species are stabilized or increased; and (4) population trends must be shown to be stable or increasing for a minimum of 10 years prior to reclassification (Service 1998a, pp. iv- vi; pp. 62-64T). The intent of the recovery criteria is to identify, protect existing vernal pools, and, as necessary, restore degraded vernal pool habitat within the range of the San Diego fairy shrimp. Appendices F and G of the recovery plan identified vernal pool complexes needed to stabilize or reclassify the San Diego fairy shrimp to threatened status based on information available to the Service in 1998. Since that time we have gained additional information about the relative significance and current status of vernal pool areas identified in appendices F and G, and we have identified several important areas that were discovered to be occupied by the San Diego fairy shrimp after the recovery plan was completed that are not analyzed in the recovery plan. The areas designated in this rule reflect our current assessment, based on the best available information, of habitat essential to the conservation of the species. Please see Table 1 and the Summary of Changes From Previously Designated Critical Habitat and 2003 Proposed Rule section below for a full discussion. Comment 19: One commenter stated that the San Diego fairy shrimp has already gone extinct in Los Angeles and Orange counties and that it is close to extinction in Riverside and Ventura counties. The commenter indicated that all remaining habitat throughout the species' range is essential to the species' survival and will require special management. The commenter stated that we should designate critical habitat in areas where new vernal pools have been found since the publication of the proposed rule in April 2003. Our Response: This commenter is incorrect about the historical distribution of the San Diego fairy shrimp. The best available scientific information indicates that the San Diego fairy shrimp has always been restricted to Orange and San Diego counties in the United States and to northwestern Baja California in Mexico. There is a single record of a female fairy shrimp in Santa Barbara County; however, the site where this fairy shrimp was collected from has been revisited and there is no corroborating evidence indicating San Diego fairy shrimp occupy this area. We believe this original report was an error. The San Diego fairy shrimp has never been reported from Los Angeles, Riverside, or Ventura counties. The San Diego fairy shrimp is still present in Orange County. The commenter did not provide specific information on the vernal pool complexes that they believe are essential to the conservation of the San Diego fairy shrimp, so we cannot address the reasons that these areas were not included in critical habitat. In addition, we have not evaluated new occurrences discovered after the 2003 proposed rule to determine whether they are essential to the conservation of the species. In light of the fact that the commenter did not provide any specific data and that we have not evaluated new occurrences, it would not be appropriate to include these occurrences in the final rule. Section 4 of the Act allows for revision of any critical habitat designation as appropriate to evaluate and include new information through the full rulemaking process allowing for public comment on all proposed lands. Policy and Procedures Comment 20: The ACOE requested clarification of the definition of ``destruction or adverse modification'' of critical habitat. Our Response: Concerning the ACOE's request for a clarification of ``destruction or adverse modification'' of critical habitat, we have revisited the regulatory definition of adverse modification in relation to the species' conservation. Recent decisions by the Fifth and Ninth Circuit Court of Appeals have invalidated our regulatory definition of ``adverse modification'' at 50 CFR 402.02 (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434, 442F (5th Cir 2001)). [[Page 70655]] Consistent with the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the PCEs to be functionally established) to serve the intended conservation role for the species. Comment 21: One commenter stated an environmental impact statement (EIS) as defined under the National Environmental Policy Act (NEPA) should be written to address the potential significant impacts from the designation of San Diego fairy shrimp critical habitat. Our Response: It is our position that, outside the Tenth Circuit Court, we do not need to prepare environmental analyses as defined by NEPA in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld in the courts of the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996)). Comment 22: Some commenters stated that it was unclear how critical habitat designation would affect private landowners. Our Response: The designation of critical habitat does not affect State, local, private or other non-Federal landowners unless a project requires Federal funding, permits, or authorization. Critical habitat does not affect land ownership or establish a refuge, preserve, or other special conservation area. It does not allow government or public access to private lands, and will not result in the closure of an area to all access or use. Please refer to the Effects of Critical Habitat Designation section below for more information. Comment 23: One commenter reiterated the Service's mandate to follow Secretarial Order 3206 and Executive Order 13175 regarding consultation and coordination with Tribal governments when deciding to propose critical habitat on Tribal lands. Our Response: Executive Order 13175 and Secretarial Order 3206 direct the United States government, and specifically the Service, to establish regular and meaningful consultation and collaboration with Tribal officials in the development of Federal policies that have Tribal implications, to strengthen the government-to-government relationships with Tribes, and reduce the imposition of unfunded mandates upon Tribes. In the case of San Diego fairy shrimp, there are no known occurrences of this species on Tribal lands, nor is there any habitat essential for the conservation of the San Diego fairy shrimp on Tribal lands. Therefore, no critical habitat is designated for this species on Tribal lands. Comment 24: One commenter requested that we extend the comment period on the proposed designation and DEA. Our Response: Following the publication of the proposed critical habitat designation on April 22, 2003, we opened a 60-day public comment period that closed on June 23, 2003, and conducted outreach notifying affected elected officials, local jurisdictions, interest groups, and property owners. We conducted much of this outreach through legal notices in regional newspapers, telephone calls, letters, and news releases faxed and/or mailed to affected elected officials, local jurisdictions, and interest groups, and publication of the proposed designation and associated material on our Web site. We prepared a DEA of the proposed critical habitat designation, which we made available to the public on April 8, 2004 (68 FR 18516). The public comment period was reopened through May 10, 2004. During this comment period, two public hearings were held on April 29, 2004, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. in Carlsbad, California. We provided notification of the DEA through telephone calls and letters and news releases faxed and/or mailed to affected elected officials, local jurisdictions, and interest groups. We also published the DEA and associated material on our Web site following the draft's release on April 8, 2004. A third period for public comment was opened from April 3, 2007, to May 3, 2007. In addition, several public comment periods were held on our earlier proposed and final critical habitat rules, which are similar in many respects to the current proposed and final rule. Because of our obligation to meet the deadline established in settlement of litigation involving critical habitat designation for the San Diego fairy shrimp, we were not able to extend or open an additional public comment period. Economic Analysis Comment 25: Some commenters stated, in general, that we should exclude areas from critical habitat due to the significant economic impacts associated with the designation of critical habitat. Our Response: We have not excluded any lands based on disproportionate economic impacts to a property. We have responded to comments that provided us with specific information and maps requesting economic exclusions below. Comment 26: One commenter stated that the placement of critical habitat over subunit 5D, especially the Otay Crossings Commerce Park project, will only divert limited staffing and financial resources towards addressing critical habitat issues instead of focusing on the successful implementation of the MSCP. Our Response: As discussed above in the response to Comment 15 we reanalyzed subunit 5D. We removed all areas in this subunit that do not contain features essential to the conservation of the San Diego fairy shrimp. However, a large portion of subunit 5D has been designated because it contains features in quantity and spatial arrangement essential to the conservation of the San Diego fairy shrimp, i.e., PCEs (Please see Criteria Used to Identify Critical Habitat section). Our economic analysis of subunit 5D did not indicate that the economic impacts in this subunit were substantially different from other areas included in critical habitat, therefore we have not excluded this area due to disproportionate economic impacts. Comment 27: One commenter stated that the Service's appreciation for, and earlier estimates of, the cost of the shrimp's listing have proven low. The commenter stated that delays in development associated with the breakdown of the MSCP/section 7 of the Act consultation process have been high. The commenter stated that the aftermath of the Southwest Center for Biological Diversity v. Bartel (CV 98-2234) decision has increased those costs. The commenter stated that a small property or project with a debt of just $10 million, for example, will see an additional cost in interest alone of approximately $50,000 per month of delay in the section 7 consultation process. Large projects with massive early expenditure on design, drawings, and the California Environmental Quality Act (CEQA) planning process, as well as sunk development costs will have incurred and will continue to incur extraordinary carrying costs too large to calculate except by the agency with access to all of the projects delayed and their sunk costs and carry costs. The commenter stated that the new rulemaking obliges the Service to list the projects, public and private, delayed by the ruling and the breakdown of the section 7 consultation process and use the costs to those projects as the minimum cost to date of the critical habitat designation while also calculating the additional cost of going [[Page 70656]] forward. The commenter stated that the economic analysis should also include a reasonable analysis of the impact of a critical habitat designation on that land not yet under development but newly burdened with this designation. Another commenter echoed these comments and stated that the result of a critical habitat designation would cause land owners to enter into a section 7 consultation with the Service. The commenter stated that this consultation process would lengthen the time and increase the cost to process projects. The commenter added that adding to the regulatory burden does not make sense since the MSCP was created to expedite the processing of projects within the County while providing for the long-term survival of fairy shrimp within the preserve lands. Our Response: The draft economic analysis (DEA) addresses potential costs that a private land development may incur from the designation of critical habitat. It is not necessarily the case that delays for development projects will result from the designation of critical habitat. The need to complete section 7 consultations in and of itself does not automatically delay private development projects; these consultations can generally be coordinated with baseline land use regulatory processes and do not necessarily increase the time to obtain approvals. The DEA identified projects that were currently being processed (i.e., those that are reasonably foreseeable) or had been recently completed as the most likely projects to be delayed by the designation of critical habitat. The DEA analyzed the cost that these projects may incur and incorporated this information into the analysis. Please see the section Time-Delay Costs of the DEA (Economic and Planning Systems, Inc. 2004, pp. 53-55). Further, the economic costs associated with development delays resulting from the Southwest Center for Biological Diversity v. Bartel (CV 98-2234) decision are not the result of the existing critical habitat designation or of the revised critical habitat designation. Rather they are the result of the court's determination that there are deficiencies in the City of San Diego subarea plan under the MSCP and in the Service's decision to issue an incidental take permit based on the plan. In the aftermath of SWANCC and Rapanos it is not clear to what extent projects affected by the Southwest Center for Biological Diversity v. Bartel (CV 98-2234) decision are likely to have a Federal nexus that would trigger consultation under section 7 of the Act and an examination of the projects' impacts on critical habitat. Comment 28: One commenter stated that the DEA was flawed because it used existing HCPs and INRMPs that are already in place as a baseline for the economic analysis. The commenter indicated that the use of baseline conditions underestimates the economic cost of the designation. The commenter also stated that the DEA fails to take into account the impact of the designation of critical habitat on the housing market or on transportation projects. Our Response: The economic analysis used baseline conditions and regulations that are already in place for the economic analysis because the designation of critical habitat will not alter existing conditions. In areas that do not have existing HCPs or other regulations that provide for the regulation of San Diego fairy shrimp habitat, the economic analysis highlights the possible costs that may be due to the designation of critical habitat. We believe that the economic analysis did address both impacts on the housing market and transportation projects by analyzing the impacts of critical habitat on private land development and on road construction and maintenance. Comment 29: Commenters stated that the DEA should use case studies rather than cost estimates or projections and that the economic analysis should be released to the public prior to the final designation of critical habitat. Other commenters stated that the economic analysis should be completed prior to proposing critical habitat. Our Response: We agree that cost estimates derived from real examples are preferable. To the extent possible, our economic analysis is derived from actual cost information collected in the preparation of the economic analysis and during the comment periods. The DEA was made available for public review and comment prior to the final designation of critical habitat. Under 50 CFR 424.19, we are not required to consider the probable economic impacts of designating a particular area as critical habitat until after critical habitat is proposed. There were two comment periods for the public to provide input on the DEA, one opened on April 8, 2004, and closed May 10, 2004 (69 FR 18516), the other opened on April 3, 2007, and closed May 3, 2007. There were also public hearings on April 29, 2004, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. in Carlsbad, California, to provide comments on the DEA. An additional comment period was opened from April 3, 2007, to May 3, 2007, on the DEA and proposed rule. The final designation takes into consideration the findings of the DEA, and comments and information submitted to us regarding the DEA. Comments From State Agencies Comment 30: California Department of Fish and Game (CDFG) supported the exclusion of Natural Communities Conservation Plans (NCCP)/HCPs that include the San Diego fairy shrimp as a covered species. Additionally, CDFG also requested that land designated as critical habitat be automatically removed from such designation upon approval of an NCCP. Our Response: Although we agree with CDFG that an approved NCCP/HCP likely provides a conservation benefit to the species covered by that particular plan and should be considered for exclusion from critical habitat designation under section 4(b)(2) of the Act, we are not able to automatically remove designated critical habitat from areas once an NCCP/HCP is approved. In order to revise a critical habitat designation to take into consideration a completed NCCP or HCP, we are required under sections 4(b)(5) and 4(b)(6) of the Act to follow the appropriate rulemaking process. If an NCCP or HCP that includes the San Diego fairy shrimp as a covered species is approved subsequent to the designation of critical habitat for the species, we can reassess the critical habitat boundaries and revise such designation through the rulemaking process, consistent with available funding and program priorities. Comment 31: CDFG requested that State-owned land on Del Mar Mesa be excluded from the revised final designation of critical habitat. Our