Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the San Diego Fairy Shrimp (Branchinecta sandiegonensis), 70648-70714 [07-5972]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018–AV37
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for the San Diego Fairy Shrimp
(Branchinecta sandiegonensis)
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
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 https://
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:
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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
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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
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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
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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
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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).
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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
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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
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of certain habitat impacts under section
7 of the Act. Habitat conservation plans
and INRMPs typically incorporate ongoing management and protection for
the San Diego fairy shrimp that will
benefit, and is critical to, the long-term
conservation of the species. This type of
long-term management would not
necessarily result from a section 7
consultation on an area where critical
habitat has been designated. In addition,
the protection and management afforded
San Diego fairy shrimp habitat under
HCPs extend to private lands that may
otherwise lack a Federal nexus
triggering consultation under section 7
of the Act.
Comment 3: One peer reviewer
stressed the importance of viewing
vernal pools as ecosystems with several
important components, such as intact
upland habitat and functional
watersheds that contribute to the health
and productivity of the vernal pool
ecosystem and to the conservation of the
San Diego fairy shrimp.
Our Response: We have addressed
this comment by providing a more
detailed description of the primary
constituent elements (PCEs) in this
revised final rule. The boundaries of
each critical habitat subunit generally
correspond to the boundaries of
functional watersheds surrounding the
included vernal pool complexes. We
have attempted to incorporate all of the
features that the peer reviewer described
that we have determined to be essential
to the conservation of the San Diego
fairy shrimp (see the Primary
Constituent Elements section for further
discussion of this topic).
Public Comments
INRMPs and Department of Defense
Lands
We received several comments related
to the exclusion and exemption of
Department of Defense (DOD) lands
from the revised final critical habitat.
We received comments from the U.S.
Navy (Navy) regarding the proposed
designation of critical habitat on Marine
Corps Base Camp Pendleton (MCB
Camp Pendleton), and separate
comments regarding the proposed
designation on Marine Corps Air Station
Miramar (MCAS Miramar), Naval Radio
Receiving Facility (NRRF), Naval
Outlying Landing Field (NOLF), and
Navy housing at Chollas Heights and
Murphy Canyon under Naval Base
Coronado. We also received comments
from individuals, some stating that DOD
lands should be designated as critical
habitat, and others stating that DOD
lands should not be encumbered by
critical habitat.
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Comment 4: The Navy requested that
critical habitat not be designated at MCB
Camp Pendleton, MCAS Miramar,
NRRF, and NOLF, based on approved
INRMPs for these installations and
adverse affects to military training and
readiness. Another commenter also
requested that military lands at MCB
Camp Pendleton not be designated as
critical habitat.
Our Response: In the April 22, 2003,
proposed rule to revise critical habitat
for the San Diego fairy shrimp (68 FR
19888), we considered but did not
propose critical habitat on MCAS
Miramar, NRRF, and on mission
essential training areas at MCB Camp
Pendleton under section 4(b)(2) of the
Act. The April 22, 2003, rule proposed
to designate some non-training areas at
MCP Camp Pendleton and at NOLF. In
this revised final designation, we have
determined that all the INRMPs in place
at MCAS Miramar, NRRF, MCB Camp
Pendleton, and NOLF provide a benefit
to San Diego fairy shrimp, and therefore
these lands are exempt from this revised
final critical habitat under section
4(a)(3) of the Act (see Exemptions and
Exclusions section below for a detailed
discussion of these exemptions).
Comment 5: The Navy requested that
critical habitat not be designated at the
vernal pool areas at Murphy Canyon
Navy Housing and Chollas Heights Navy
Housing because they plan to complete
an INRMP for these areas. The Navy
continued to request that should critical
habitat be designated at these areas that
the Service commit to revisiting the
designation upon the Navy’s completion
of an INRMP or other management plan
for these areas.
Our Response: The vernal pool
complexes at Murphy Canyon Navy
Housing and Chollas Heights areas are
not covered under an INRMP at this
time; therefore they are not appropriate
to consider for exemption under section
4(a)(3) of the Act. The vernal pool
complexes at Murphy Canyon Navy
Housing and Chollas Heights areas have
been preserved for the benefit of the San
Diego fairy shrimp and other vernal
pool species. The vernal pool complexes
at these two Housing Areas provide high
quality habitat for the San Diego fairy
shrimp and are some of the last
remaining areas in urban San Diego that
support this species. We applaud the
past conservation work that the Navy
has implemented at these two housing
areas, and we look forward to working
with the Navy to minimize any financial
or regulatory burden associated with
this critical habitat designation. It is our
understanding that the Navy is working
to complete an INRMP that will include
these two areas and will secure funding
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for the long-term management of these
two areas for the benefit of the San
Diego fairy shrimp. Features essential to
the conservation of the San Diego fairy
shrimp in these areas continue to
require special management
considerations and protections and are
therefore included in this revised final
designation. At such time as the Navy
completes an INRMP for these areas, we
can assess any benefits provided to the
San Diego fairy shrimp and revise the
designation through the rulemaking
process consistent with available
funding and program priorities.
Comment 6: Some commenters stated
that our exclusion of INRMPs is not
legally or scientifically justified because
the commenter believes that the
INRMPs, specifically those for MCB
Camp Pendleton and MCAS Miramar,
do not adequately protect vernal pools
or San Diego fairy shrimp.
Our Response: Section 318 of
National Defense Authorization Act for
Fiscal Year 2004 (Pub. L. 108–136)
amended section 4(a)(3) of Act to
address the relationship of INRMPs to
critical habitat by adding a new section,
4(a)(3)(B). This amendment prohibits us
from designating as critical habitat any
lands or other geographical areas owned
or controlled by DOD, or designated for
its use, that are subject to an INRMP
prepared under section 101 of the Sikes
Act, if the Secretary of the Interior
(Secretary) determines, in writing, that
such plan provides a benefit to the
species for which critical habitat is
proposed for designation. Lands at MCB
Camp Pendleton, MCAS Miramar,
NRRF, and NOLF are exempt from
critical habitat for the San Diego fairy
shrimp under section 4(a)(3) of the Act
as we have determined that these
installations’ INRMPs benefit the San
Diego fairy shrimp and features
essential to its conservation (see
Exemptions and Exclusions section
below for a detailed discussion on
exclusions and exemptions). We believe
that these exemptions are legally and
scientifically justified because
implementation of these INRMPs will
benefit the San Diego fairy shrimp and
its habitat at each installation.
Habitat Conservation Plans and Natural
Community Conservation Plans
We received several comments related
to the exclusion or inclusion of Habitat
Conservation Plans (HCPs) and Natural
Community Conservation Plans
(NCCPs). The comments that we
received have been paraphrased and
grouped to better clarify how we have
handled HCPs and NCCPs in this
revised final designation of critical
habitat.
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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
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70651
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
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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
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Carlsbad has not committed to manage
vernal pool habitat or include the area
we identified as critical habitat within
this plan (subunit 2G); therefore the
Carlsbad HMP under the MHCP does
not cover the San Diego fairy shrimp at
this time, and we have not excluded
lands covered under this plan from
critical habitat.
At this time the HCP for northern San
Diego County is still in the process of
being written. No draft of this plan is
available for public review. Therefore,
we have not excluded lands covered
under this plan from critical habitat in
and around Ramona (subunits 3E.1,
3E.2, 3E.3, and 3E.4).
Comment 9: We received comments
requesting that we exclude the area
covered by the San Diego Gas & Electric
(SDG&E) NCCP/HCP.
Our Response: We have reviewed the
appropriateness of excluding lands
covered by the SDG&E NCCP/HCP and
determined that SDG&E does not own
any lands containing features we have
determined essential for the
conservation of the San Diego fairy
shrimp. Although SDG&E is bound by
this NCCP/HCP on all easements and
access roads that we have determined
contain features essential to the
conservation of the San Diego fairy
shrimp, the actual owners of the land
covered by the SDG&E NCCP/HCP are
not bound by this plan. Therefore we
believe it would be inappropriate to
consider lands not under the control of
SDG&E for exclusion based on the
coverage provided in this NCCP/HCP.
Comment 10: We received a comment
requesting that we reaffirm our
exclusion of the Orange County CentralCoastal NCCP/HCP (Central-Coastal
NCCP/HCP) in this final revised critical
habitat.
Our Response: In the April 22, 2003,
proposed rule to designate revised
critical habitat for the San Diego fairy
shrimp, we discussed the CentralCoastal NCCP/HCP and stated that areas
essential to the San Diego fairy shrimp
covered by this plan should be excluded
from critical habitat. In our review of
the proposed critical habitat we found
that, although critical habitat subunits
1A, 1B, and 1C are all near the boundary
of this plan, there are no areas
containing features essential to the San
Diego fairy shrimp within the area
covered by the Central-Coastal NCCP/
HCP. Furthermore, we do not know of
any vernal pools occupied by the San
Diego fairy shrimp within the area
covered by the Central-Coastal NCCP/
HCP. Therefore, we have no reason to
include a discussion of the CentralCoastal NCCP/HCP in this revised final
designation of critical habitat.
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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 14Mile 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
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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
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it did not contain the PCEs, such as the
lands owned by the DHS in subunit 5D.
However, we found that the majority of
the area was appropriately mapped and
is included in the revised final
designation. The areas we are
designating as critical habitat contain
the features essential for the
conservation of the San Diego fairy
shrimp. Critical habitat subunit 5D on
eastern Otay Mesa contains vernal pools
that support known locations of the San
Diego fairy shrimp and the watershed
area necessary to maintain the vernal
pools. The area designated as critical
habitat gently slopes to the south and
contains several vernal pools dispersed
across an area of approximately 391 ac
(158 ha). The area on East Otay Mesa
included in the designation is relatively
undamaged by development and offroad vehicle activity. This area is
entirely within the County of San
Diego’s Major and Minor Amendment
Areas of the MSCP, which are not
covered as part of the County’s
approved MSCP subarea plan.
Therefore, it is not appropriate to
exclude these lands because of their
location within the boundaries of the
MSCP (see Exemptions and Exclusions
section below for a detailed discussion).
Criteria and Methodology
Comment 14: Some commenters
stated that the Service has deferred
determination of whether specific areas
contain PCEs, leaving landowners
without effective notice as to whether
their property contains critical habitat.
Our Response: We have determined
that all of the designated units contain
all of the PCEs (see Unit Descriptions
section below). In our proposed rule, we
provided a description of the PCEs and
maps of the areas that we proposed for
critical habitat in the Federal Register.
Additional maps showing all areas
containing features arranged in the
quantity and spatial configuration
essential for the conservation of the San
Diego fairy shrimp were made available
to the public for review and comment
on our Web site. Also, the contact
information for the Carlsbad Fish and
Wildlife Office was provided to the
public. These resources were readily
available to any landowner with a
question regarding the critical habitat
proposal, including the PCEs. We
believe these measures effectively
notified landowners concerning the
proposed revised designation of critical
habitat.
Furthermore, in this revised final rule,
we have re-evaluated all units and
removed any areas that do not contain
the PCEs (see Summary of Changes
From Previously Designated Critical
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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
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presence of the PCEs in the areas that
we identified as critical habitat.
Comment 16: One commenter stated
that it is important to designate the
entire area within each vernal pool
complex, including the watershed of the
vernal pool, in order to provide habitat
for animals that are vectors for dispersal
of San Diego fairy shrimp cysts. Another
commenter provided similar
information to specific vernal pool
complexes in San Marcos, California.
Our Response: This revised final
designation includes vernal pool basins
and the associated watersheds necessary
to support the San Diego fairy shrimp;
however, we did not include larger
areas of habitat needed for animal
dispersal vectors. We did not have
enough specific information on this
topic to include other areas with any
degree of certainty. We believe that our
discussion of the PCEs adequately
captures the physical and biological
features essential for conservation of the
San Diego fairy shrimp (see Primary
Constituent Elements section below for
details). The information regarding
vernal pool complexes added to the
information that we previously had on
the vernal pools in San Marcos;
however, it did not significantly change
our analysis of this area.
Comment 17: One commenter stated
that stochastic (random) events could
drive the species to extinction since it
no longer has the ability to meet the
challenges of environmental or humancaused stress. The commenter stated
that the exclusion of any area from
critical habitat could result in the
extinction of the San Diego fairy shrimp.
Our Response: We agree that
stochastic events could negatively
impact the San Diego fairy shrimp
throughout its range. We reaffirmed our
2003 determination to exclude areas
covered by HCPs that provide for the
conservation of vernal pool habitat and
the San Diego fairy shrimp because
these plans incorporate management
and monitoring for vernal pool
ecosystems. As environmental
conditions change, management of these
areas will also change to address new
threats to the species and its habitat.
The areas we excluded also provide for
management actions to address human
induced stresses such as off-road
vehicle use or the illegal dumping of
trash in preserve areas. We determined
the exclusion of these areas from critical
habitat designation under section 4(b)(2)
of the Act will not result in the
extinction of the San Diego fairy shrimp
(see Exemptions and Exclusions section
below for a detailed discussion).
Comment 18: Several commenters
requested that the Service expand the
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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
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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)).
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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
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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
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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
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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
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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
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findings of the DEA, and comments and
information submitted to us regarding
the DEA.
Comments From State Agencies
Comment 30: California Department
of Fish and Game (CDFG) supported the
exclusion of Natural Communities
Conservation Plans (NCCP)/HCPs that
include the San Diego fairy shrimp as a
covered species. Additionally, CDFG
also requested that land designated as
critical habitat be automatically
removed from such designation upon
approval of an NCCP.
Our Response: Although we agree
with CDFG that an approved NCCP/HCP
likely provides a conservation benefit to
the species covered by that particular
plan and should be considered for
exclusion from critical habitat
designation under section 4(b)(2) of the
Act, we are not able to automatically
remove designated critical habitat from
areas once an NCCP/HCP is approved.
In order to revise a critical habitat
designation to take into consideration a
completed NCCP or HCP, we are
required under sections 4(b)(5) and
4(b)(6) of the Act to follow the
appropriate rulemaking process. If an
NCCP or HCP that includes the San
Diego fairy shrimp as a covered species
is approved subsequent to the
designation of critical habitat for the
species, we can reassess the critical
habitat boundaries and revise such
designation through the rulemaking
process, consistent with available
funding and program priorities.
Comment 31: CDFG requested that
State-owned land on Del Mar Mesa be
excluded from the revised final
designation of critical habitat.
Our Response: The State-owned lands
on Del Mar Mesa are intermingled with
other conservation lands on Del Mar
Mesa under Federal, local, and private
ownership. We have determined that
many of these lands meet the definition
of critical habitat and contain the
features essential to the conservation of
the SDFS; we are designating these
lands (including State-owned lands) as
critical habitat in this final rule. Several
landowners, including the State, are
working together toward preservation
and management of the vernal pools on
Del Mar Mesa and we applaud this
effort. The ‘‘Del Mar Mesa Preserve’’
lands are essential for the conservation
of the San Diego fairy shrimp because
they consist of one of the largest
continuous blocks of largely
undisturbed mesa topography, on nonmilitary land, remaining in San Diego
County. The area contains several
hundred vernal pools occupied by San
Diego fairy shrimp and other sensitive
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vernal pool species. The lands that
contain the features essential for the
conservation of the San Diego fairy
shrimp on Del Mar Mesa are part of the
area that is within the City of San Diego
subarea plan under the MSCP.
Consistent with the City’s subarea plan,
a draft management plan for the Del Mar
Mesa Preserve has been written (Recon
2002); however, the plan has not been
finalized or implemented. As
recognized in the plan, the Del Mar
Mesa Preserve requires integrated
management to control threats
associated with off-road vehicle use and
illegal dumping; however, the Del Mar
Mesa Preserve lands are not adequately
fenced or otherwise managed. Funding
to implement the draft management
plan has yet to be identified. Although
we considered, but did not propose
lands covered by the City of San Diego
subarea plan under the MSCP under
section 4(b)(2) in the proposed rule; we
have determined that it is inappropriate
to exclude lands within the City of San
Diego subarea plan (including Stateowned lands) under the MSCP (see
Summary of Changes From Previously
Designated Critical Habitat and 2003
Proposed Rule section and Exemptions
and Exclusions section below for a
detailed discussion).
Summary of Changes From Previously
Designated Critical Habitat and 2003
Proposed Rule
On October 3, 2000, we designated
five units comprising a total of 4,025 ac
(1,629 ha). We proposed to revise this
designation to 6,098 ac (2,468 ha) on
April 22, 2003 (68 FR 19888). The areas
designated in this revised final rule
constitute a revision of the areas we
proposed as critical habitat for San
Diego fairy shrimp on April 22, 2003 (68
FR 19888). In addition, all of the land
designated in this revised final rule was
considered for critical habitat in the
2003 proposed rule. In this section we
present the differences between what
was designated in 2000, what was
proposed in 2003, and what is included
in this final designation.
1. The 2000 final critical habitat
designation (65 FR 63438, October 3,
2000) consisted of five units totaling
4,025 ac (1,629 ha). This revision to
designated critical habitat also includes
five units totaling 3,082 ac (1,248 ha).
The five units in this revision generally
correspond to the previously designated
five critical habitat units, though some
vernal pool complexes have been added
to units where occupancy of the San
Diego fairy shrimp has been identified
outside of previously designated critical
habitat. Additionally, we have refined
our mapping techniques (as detailed
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below) and used data to limit the critical
habitat designation to those areas that
contain the features essential to the
conservation of the species that may
require special management
considerations or protection.
2. In the 2000 critical habitat rule (65
FR 63438, October 3, 2000), the
descriptions of unit boundaries were
delineated on Universal Transverse
Mercator (UTM) gridlines set on a 820
ft (250 m) grid. In the 2003 revised
proposed designation, we based the
critical habitat boundary descriptions
on UTM gridlines set every 100 m (328
ft). These square grids were overlaid on
areas determined to contain the PCEs
required by the species. Portions of
these grid squares did not contain PCEs,
and were inadvertently included within
the boundaries of the critical habitat
designation due to mapping limitations.
The use of UTM gridlines was the best
available methodology to digitize
critical habitat boundaries and provide
UTM coordinates to the public of the
boundaries at the time of the 2000 final
designation and 2003 proposed
designation. We are now able to
delineate critical habitat unit
boundaries by screen-digitizing habitat
polygons using ArcMap, a computer
Geographic Information System (GIS)
program. We have used this
methodology to produce boundaries
associated more precisely with areas
that we determined contain the PCEs for
the species and are essential for the
conservation of the San Diego fairy
shrimp, and removed large areas of
habitat that do not contain the features
essential to the conservation of the
species (see the ‘‘Criteria Used to
Identify Critical Habitat’’ section for a
detailed discussion).
3. As a result of comments received,
we made editorial changes to the
sections of the rule pertaining to the
background, the PCEs, the criteria used
to identify critical habitat, and the unit
descriptions. We made these changes to
eliminate redundancy, improve clarity,
and provide a more in-depth
explanation of the biological
requirements of the San Diego fairy
shrimp. We have revised the PCE
section since publication of the 2000
critical habitat rule (65 FR 63438,
October 3, 2000) to include more
information about how we developed
the PCEs. We added more specific
information relating to: the ponding
duration and depth required by the San
Diego fairy shrimp (PCE 1); surrounding
upland areas that vernal pools need to
function naturally (PCE 2); and the soils
that vernal pools are known to form on
(PCE 3). We also provided additional
information in our Criteria Used to
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Identify Critical Habitat Section to
increase the transparency of the critical
habitat designation. We provided
information to better explain how we
identified which vernal pool complexes
contain the features essential to the
conservation of the San Diego fairy
shrimp, and how we delineated the
areas that contain the PCEs for each
critical habitat subunit.
4. The 2000 designation (65 FR 63438,
October 3, 2000) and the 2003 proposed
revision (68 FR 19888, April 22, 2003)
broadly included upland habitat
surrounding many vernal pools. Much
of the surrounding upland habitat did
not contain the PCEs. Furthermore, the
2000 designation (65 FR 63438, October
3, 2000) and the 2003 proposed revision
(68 FR 19888, April 22, 2003) included
habitat that does not contribute to any
vernal pool watershed; for example,
these rules included lands that are
down-slope from vernal pool
complexes. We used recent aerial
imagery to determine where
development has occurred, and
removed any lands from this revision
that do not contain the PCEs nor
support the species. We also removed
areas that do not contribute to any
vernal pool watershed and have no
affect on the ability of the San Diego
fairy shrimp to persist or be recovered
within a vernal pool watershed, and are
therefore not essential to the
conservation of this species. The
majority of these lands were on the
edges of an area considered for
designation.
5. The 2000 critical habitat rule (65
FR 63438, October 3, 2000), the 2003
proposed revision (68 FR 19888, April
22, 2003), and this final designation are
all largely based on the 1998 recovery
plan. The San Diego fairy shrimp was
first taxonomically described in 1993
(Fugate 1993, pp. 296–304). The species
was subsequently listed as endangered
in 1997, and included in a recovery plan
for seven vernal pool species (two
invertebrates and five plants) in
southern California published the
following year. The 1998 recovery plan
outlined four recovery criteria for the
seven federally listed vernal pool
species. In sum the recovery criteria
state that: (1) Existing vernal pools and
their associated watersheds that contain
a federally listed species should be
secured for that specific supported
species; (2) existing vernal pools and
their associated watersheds need to be
secured in a configuration that
maintains habitat function and species
viability (as determined by future
research); (3) secured vernal pools be
enhanced or restored such that
population levels of existing species are
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stabilized or increased; and (4)
population trends must be shown to be
stable or increasing for a minimum of 10
years prior to reclassification (Service
1998a, pp. iv–vi; pp. 62–64). In
addition, the 1998 recovery plan
included appendices that identified
specific vernal pool complexes as
‘‘necessary to stabilize the proposed and
listed vernal pool’’ (appendix F) and
other vernal pool complexes as
‘‘necessary to reclassify the proposed
and listed vernal pool species’’
(appendix G). The recovery plan did not
explain how the vernal pool complexes
listed in these appendices were
identified for inclusion on the list nor
why other occupied vernal pool
complexes were not included in these
appendices. Task 113, which relates to
criteria 1, recognizes that certain pools
within any vernal pool complex may
not be necessary to maintain habitat
function and species viability (Service
1998a, p. 66). As illustrated in Table 1,
the 2000 critical habitat designation
included many, but not all of the vernal
pools identified in appendices F and G
of the recovery plan. Likewise, the 2003
proposed revision included many, but
not all, of the vernal pools identified in
appendices F and G and also added
several occupied vernal pools that were
either not identified in the recovery
plan, or were identified but not
included in appendices F and G. In this
final designation, we reanalyzed all
vernal pool complexes identified in the
recovery plan and reviewed all data
identifying additional vernal pool
complexes occupied by the San Diego
fairy shrimp to determine which vernal
pool complexes are essential to the
conservation of this species, including
the surrounding watershed necessary to
support the complex.
As a consequence, this final revision
to critical habitat does not include some
lands that were identified in the
recovery plan for which we have no
data documenting historical or existing
occupancy by the species or that,
because of location, we do not believe
would contribute meaningfully to the
conservation of the species. Though the
recovery plan focused predominantly on
protecting existing habitat, the recovery
plan did include other tasks to
reestablish vernal pool habitat based on
historical structure and composition to
increase genetic diversity and
population stability (Service 1998a, p.
69). The recovery plan noted that
historical distributions of vernal pool
species can be reconstructed and the
landscape restored sufficiently to allow
for the reestablishment and expansion
of populations, where necessary
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(Service 1998a, p. 71). At this time, we
have not identified any specific areas
within the extant range of the San Diego
fairy shrimp where this species should
be reestablished; therefore we are not
designating any areas for this purpose.
If such areas are identified and restored
in the future, we may at that time revise
critical habitat to include them. We also
removed areas that were identified in
the 1998 recovery plan as occupied but
not included in either Appendix F or G
as necessary to stabilize or reclassify the
San Diego fairy shrimp, unless we had
new information that was not evaluated
at the time of the 1998 recovery plan
that indicated that these areas were
essential to the conservation of the
species. This final revision to critical
habitat includes some lands that were
not identified in the recovery plan or
the 2000 critical habitat designation, but
which we have since concluded are
within the geographical area occupied
by the species at the time of listing and
contain the physical and biological
features essential to the conservation of
the species. The designation of lands
within the extant range of the San Diego
fairy shrimp will adequately conserve
the species.
In addition, the following specific
areas are removed from critical habitat:
a. Subunit 3B, San Marcos,
northwest—The recovery plan lists this
area in appendix G, grouping this
particular complex with other occupied
vernal pools in the San Marcos area.
This unit was designated in 2000 and
included in the 2003 proposal to revise
the critical habitat designation.
However, this area is degraded,
surrounded by development, and does
not contribute to the watershed of any
occupied vernal pool complexes within
the San Marcos area. Furthermore, we
do not have any evidence to indicate
that the San Diego fairy shrimp has ever
occupied this vernal pool complex,
currently or historically. Based on this
information, we have determined that
these lands are not essential to the
conservation of the San Diego fairy
shrimp and have removed these lands
from the final designation.
b. Portions of subunit 3E, Ramona—
The recovery plan specifically identifies
the need to secure existing vernal pools
and their watersheds within the Ramona
complexes that contain San Diego fairy
shrimp. Since the publication of the
2000 designation and the proposed
revision to critical habitat in 2003, a
survey was conducted to determine the
distribution of vernal pools in the area
around Ramona. The 2003 proposed
rule included large expanses of habitat
that did not contain any vernal pool
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complexes. The recent surveys in
Ramona allowed us to more precisely
map the distribution of vernal pool
habitat. We used the recent survey data
to identify and group all occupied
vernal pools within subunit 3E. The
Ramona area is gently sloped, and the
distribution of soils did not correspond
to the distribution of vernal pools,
adding complexity to defining the
watershed area that contributes to the
identified vernal pool basins. Without
more specific information on the extent
of the watersheds in this gently sloping
area, we delineated these units by
including all lands connecting the
identified vernal pools. Since we
removed large areas of habitat within
this subunit, we renamed the remaining
areas as 3E.1, 3E.2, 3E.3, and 3E.4.
c. Fieldstone—The recovery plan,
which specifically identified and
evaluated this area in appendix E
(Status of the Vernal Pool Species
Within the Management Areas), did not
include this area within either appendix
F or G as necessary to stabilize or
reclassify the San Diego fairy shrimp. In
addition, this subunit was considered
but not proposed in the 2003 proposed
revision to critical habitat. Finally, we
do not have any evidence to indicate
that the San Diego fairy shrimp has ever
occupied this vernal pool complex,
currently or historically. Based on the
lack of occupancy data or any recent
data contrary to the recovery plan,
which specifically did not identify this
area as necessary to stabilize or
reclassify the San Diego fairy shrimp,
we do not consider this complex
essential to the conservation of this
species.
d. Maddox—The recovery plan,
which specifically identified and
evaluated this area in appendix E
(Status of the Vernal Pool Species
Within the Management Areas), did not
include this area within either appendix
F or G as necessary to stabilize or
reclassify the San Diego fairy shrimp.
The recovery plan did specifically
identify this area in appendix G as
necessary to reclassify two plant species
(Eryngium aristulatum var. parishii and
Pogogyne abramsii). Though this
subunit was occupied at the time of
listing and it was considered in the 2003
proposed revision to critical habitat, the
area was not proposed. This site has
been proposed for development and we
are working with landowners to identify
appropriate offsite mitigation for project
impacts. We have no new information
on this site that was not considered at
the time the recovery plan was written
for the San Diego fairy shrimp, and we
still conclude that these lands are not
essential to the conservation of the
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species. Therefore, we are not including
these lands in this final designation.
e. Vernal pool complex K1, K2, K6,
and K7—The recovery plan groups these
complexes together in appendix G as the
Otay River complexes and considers
these complexes as necessary to
reclassify both the San Diego fairy
shrimp and Navarretia fossalis. The
2000 final designation included the K1
complex and K7 complex within the
area designated as critical habitat
(subunits 5B and 5A respectively);
however, the 2000 final designation did
not include complexes K2 or K6 as
critical habitat for the San Diego fairy
shrimp. In the 2003 proposed revision
to critical habitat we proposed the K1
complex as subunit 5A; however, at that
time we determined that the K2, K6, and
K7 complexes were not essential to the
conservation of the species, and
furthermore did not include these
complexes in the 2003 proposed
revision to critical habitat. At this time,
we do not have any records to indicate
that the San Diego fairy shrimp occupies
the vernal pools in the K1 complex,
currently or historically. Furthermore,
we do not have any records for San
Diego fairy shrimp in the Otay River
Valley below Lower Otay Reservoir.
Conversely, eastern Otay Mesa, directly
south of the Otay River Valley, supports
many vernal pools where occupancy by
the San Diego fairy shrimp has been
confirmed although these vernal pools
are not identified in the recovery plan.
Therefore, consistent with the intent of
the recovery plan, we are designating
those complexes on eastern Otay Mesa
that were not identified in the recovery
plan, but are known to support the San
Diego fairy shrimp (e.g., complexes in
subunit 5D). However, we do not
consider the K1 complex or features
contained therein to be essential to the
conservation of the San Diego fairy
shrimp and have removed the vernal
pools in the K1 complex from this final
designation.
6. In the 2000 critical habitat
designation (65 FR 63438, October 3,
2000), we evaluated DOD lands covered
by INRMPs to determine if an INRMP
that addressed the San Diego fairy
shrimp adequately provided
management for the species and its
habitat. We determined that the INRMP
for MCAS Miramar provided adequate
management for San Diego fairy shrimp
and its habitat; therefore, we determined
that vernal pools on MCAS Miramar did
not meet the definition of critical habitat
and did not include this area under
section 3(5)(A) of the Act. In the 2000
critical habitat rule (65 FR 63438,
October 3, 2000), we also excluded
lands on MCB Camp Pendleton under
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section 4(b)(2) of the Act. We did not
exclude the portion of MCB Camp
Pendleton leased to the State of
California at San Onofre State Beach
from the 2000 critical habitat rule. In the
2003 proposed revision to critical
habitat (68 FR 19888), we considered,
but did not propose as critical habitat
lands, on MCAS Miramar and the NRRF
in Coronado under sections 3(5)(A) and
4(b)(2) of the Act, based on the benefits
provided by their completed INRMPs.
We also considered, but did not
propose, mission-essential training areas
on MCB Camp Pendleton under section
4(b)(2) of the Act for national security
reasons. In this final revised critical
habitat designation, all Department of
Defense lands covered by an INRMP
that we have determined will provide a
benefit to the San Diego fairy shrimp are
exempt from this critical habitat
designation under section 4(a)(3)(B) of
the Act; this includes lands at MCAS
Miramar, NRRF, MCB Camp Pendleton,
and at NOLF (see Exemptions and
Exclusions section below for a detailed
discussion of each exemption).
7. The 2003 proposed rule to revise
critical habitat for the San Diego fairy
shrimp identified some lands that we
‘‘considered but, did not propose’’
either because we did not believe these
lands met the definition of critical
habitat under section 3(5)(A) of the Act
or because we specified the land for
exclusion under section 4(b)(2) of the
Act. Although these areas were not
formally identified as proposed critical
habitat, we specifically sought public
review and comment on these lands and
provided maps on the Carlsbad Fish and
Wildlife Office’s public Web site to
facilitate the public’s ability to comment
substantively on these lands. Through
such notice and request for public
comment, we alerted the public that the
lands could potentially be included in
the final designation. Lands considered
but not included or proposed for
designation were also analyzed for
potential economic impacts in the DEA
published on April 8, 2004 (69 FR
18516).
8. In the 2003 proposed rule to revise
critical habitat for the San Diego fairy
shrimp, we ‘‘considered but, did not
propose’’ lands covered by the City and
County of San Diego’s subarea plans
under the MSCP (collectively referred to
as lands in the San Diego MSCP in the
2003 proposed rule). In this revised
final rule, we reaffirm our exclusion of
lands covered by the County of San
Diego’s subarea plan under section
4(b)(2) of the Act (see Exemptions and
Exclusions section below for a detailed
discussion of these exclusions).
However, in light of a ruling issued by
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the U.S. District Court for the Southern
District of California on October 13,
2006, (Southwest Center for Biological
Diversity v. Bartel, CV 98–2234)
(referred to here as the Bartel decision),
we have reevaluated the City of San
Diego’s subarea plan and have
determined that exclusion of lands
covered by the City’s subarea plan is not
appropriate at this time. In a challenge
brought by 14 environmental
organizations, the district court held
that the protections afforded the San
Diego fairy shrimp and six other vernal
pool species under the City of San
Diego’s MSCP subarea plan are
inadequate, and the Service’s decision
to issue an incidental take permit for
these species to the City based on the
subarea plan was arbitrary and
capricious. The court enjoined the
incidental take permit with respect to
ongoing and future land use activities
that affect vernal pool habitat. The court
concluded, in part, that the approach
adopted in the City’s MSCP subarea
plan for evaluating project impacts on
vernal pool species through the ACOE’s
site-specific permitting process under
section 404 of the Clean Water Act had
been effectively eliminated by the
United States Supreme Court’s decision
in Solid Waste Agency of Northern Cook
County v. U.S. Army Corps of Engineers,
531 U.S. 159 (2001 (SWANCC)) and that
the remaining protections contained in
the MSCP subarea plan do not
adequately protect the San Diego fairy
shrimp. As a result of the decision, we
have designated as critical habitat the
lands that we consider to be essential to
the conservation of the species covered
by the City of San Diego’s subarea plan
that were considered, but not proposed,
in the 2003 revised proposed rule (see
Unit Descriptions section below for
more details). Although we did not
formally propose these lands in the
2003 proposed rule to revise critical
habitat, we notified the public that the
lands had been considered for
designation and invited the public to
comment on our exclusion of the lands
from proposed designation. We also
provided maps of the lands on our Web
site. In our Federal Register notice of
April 3, 2007, that reopened the
comment period on the proposed rule to
revise critical habitat, we expressly
asked for public comment on how the
lands covered by the City of San Diego’s
subarea plan should be reevaluated with
regard to critical habitat designation in
light of the Bartel decision (72 FR
15857). Therefore, we believe that we
provided the public with adequate
notice of and an opportunity to
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Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
comment on the potential inclusion of
these lands in the final designation.
9. In the 2003 proposed rule, we
included land within the North Ranch
Policy Planning Area, which is owned
by The Irvine Company. At the time we
published the proposed rule, we
recognized that this area was not
covered under the incidental take
permit issued for the Central-Coastal
NCCP/HCP, and that additional
planning was necessary to determine
conservation and development areas.
We have reanalyzed this area, which is
known presently as The Irvine Ranch,
and have determined that The Irvine
Ranch is permanently conserved,
managed with adequate current and
future funding for the entire property,
and managed for the benefit of the San
Diego fairy shrimp. As a result, we have
excluded The Irvine Ranch under
section 4(b)(2) of the Act (see the
Exemptions and Exclusions section
below for a discussion of these
exclusions).
10. In 2003, we proposed inclusion of
land in revised critical habitat of lands
within the Orange County Southern
Subregion HCP. At that time, the plan
was still under development. This HCP,
which has since been completed and
approved by the Service, includes the
San Diego fairy shrimp as a covered
species. We have determined that the
benefits of excluding essential San
Diego fairy shrimp habitat lands covered
by this plan outweigh the benefits of
including these lands in a critical
habitat designation. Therefore, we have
excluded lands in Orange County
covered by the Southern Subregion HCP
(proposed subunits 1D and 1E) from this
revised final designation under section
4(b)(2) of the Act (see Exemptions and
Exclusions section below for a
discussion of this exclusion).
11. We are also excluding Fairview
Regional Park, City of Costa Mesa
(proposed subunit 1B) under section
4(b)(2) of the Act as we have determined
that the City of Costa Mesa has
completed and is implementing a
management plan. We have determined
that the benefits of excluding Fairview
Regional Park outweigh the benefits of
including this area in the critical habitat
designation. Please see the Exemptions
and Exclusions section below for a
discussion of this exclusion.
12. In 2003, we proposed to designate
critical habitat on land near the United
States/Mexico border. We are excluding
a portion of these lands in subunit 5F
from the revised final designation under
section 4(b)(2) of the Act based on
impacts to national security. We
determined that the benefit of excluding
lands at Arnie’s Point outweighs the
benefit of including these lands in the
critical habitat designation (see the
Exemptions and Exclusions section
below for a discussion of this
exclusion).
As a result of the above exemptions,
removals, and exclusions, we are
designating 3,082 ac (1,248 ha) as
critical habitat in this revised final rule.
The lands designated as critical habitat
include areas in Orange and San Diego
counties. To minimize confusion, we
retained our subunit numbers from the
2003 proposed revision. Due to the
inclusion of lands that were considered,
but not proposed, in the 2003 rule, some
of the areas that we are designating as
critical habitat do not have subunit
numbers. In Unit 4, the inclusion of
lands on Del Mar Mesa makes proposed
subunits 4A and 4B contiguous, and this
area is referred to as subunit 4A/B in
this revised final rule. Other areas
included in Unit 4 are not contiguous
with any proposed subunits and these
areas are named consecutively starting
with subunit 4E and continuing through
subunit 4M. In Unit 5, most of the areas
that were considered, but not proposed
in the 2003 proposed revision are
contiguous with proposed subunits and
the names of the existing proposed
subunits are used to refer to these areas.
Three areas in Unit 5 are not contiguous
with proposed subunits and these areas
are referred to as subunits 5G, 5H, and
5I in this revised final rule. As
previously discussed, we removed large
areas of proposed critical habitat in
subunit 3E; for greater clarity we
renamed the remaining critical habitat
in this area 3E.1; 3E.2; 3E.3; and 3E.4.
TABLE 1.—GUIDE TO CHANGES BETWEEN THE OCTOBER 23, 2000 CRITICAL HABITAT DESIGNATION, THE APRIL 22, 2003
PROPOSED DESIGNATION, AND THIS REVISED FINAL DESIGNATION
San Diego
fairy shrimp
detected following the
recovery
plan
2000
Designation
of critical
habitat*
2003 Proposed
revision to the
critical habitat
designation*
Unit
Area identification used in this rule
(naming convention in recovery plan)*
Included in
Appendix F
or G 1998
recovery
plan
Unit 1 Orange
County.
The Irvine Ranch ...................................
....................
X
......................
Subunit 1A ...........
Fairview Park .........................................
X
....................
Unit 1 ...........
Subunit 1B ...........
Newport Banning Ranch ........................
Chiquita Ridge .......................................
....................
....................
X
X
......................
......................
Subunit 1C ...........
Subunit 1D ...........
Radio Tower Road .................................
....................
X
......................
Subunit 1E ...........
San Clemente State Park ......................
MCB Camp Pendleton (San Onofre
State Lease Area).
X
X
....................
Subunit 2A ...
Subunit 2A ...........
Exempt under
4(a)(3).
MCB Camp
Mesa).
(Cockleburr
X
....................
Subunits 2B, 2C ..
Exempt under
4(a)(3).
MCB Camp Pendleton (O Neil) .............
X
....................
X
....................
Considered essential; not proposed.
Considered essential; not proposed.
Exempt under
4(a)(3).
MCB Camp Pendleton (Las Pulgas,
San Mateo, Stuart Mesa).
Excluded
under
4(b)(2).
Excluded
under
4(b)(2).
Excluded
under
4(b)(2).
Fmt 4701
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Unit 2 North
coastal San
Diego
County.
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12DER2
2007 Final revised
critical habitat
designation*
Excluded under
4(b)(2).
Excluded under
4(b)(2).
Subunit 1C.
Excluded under
4(b)(2).
Excluded under
4(b)(2).
Exempt under
4(a)(3).
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
70661
TABLE 1.—GUIDE TO CHANGES BETWEEN THE OCTOBER 23, 2000 CRITICAL HABITAT DESIGNATION, THE APRIL 22, 2003
PROPOSED DESIGNATION, AND THIS REVISED FINAL DESIGNATION—Continued
Area identification used in this rule
(naming convention in recovery plan)*
San Diego
fairy shrimp
detected following the
recovery
plan
MCB Camp Pendleton (Wire Mountain
Housing).
X
....................
Palomar Airport ......................................
X
....................
Excluded
under
4(b)(2).
Subunit 2C ...
Poinsettia Lane Commuter Station (JJ1,
JJ3).
San Marcos (L15–16) ............................
X
....................
X
San Marcos (L14) ..................................
Unit
Included in
Appendix F
or G 1998
recovery
plan
2000
Designation
of critical
habitat*
2003 Proposed
revision to the
critical habitat
designation*
2007 Final revised
critical habitat
designation*
X
Subunit 3B ...
Subunit 3A ...........
Subunit 3A.
X
....................
Subunit 3A ...
Subunit 3B ...........
X
X
X
X
X
....................
Subunit 3C ...
Subunit 3D ...
Determined
not to be
essential.
Subunit 3C ...........
Subunit 3D ...........
Determined not to
be essential.
Subunit 3C.
Subunit 3D.
San Marcos (L8, 17–18, 20) ..................
Ramona, grasslands ..............................
Ramona, airport .....................................
Ramona, downtown ...............................
Ramona, downtown ...............................
Ramona, high school .............................
Del Mar Mesa (H18–23) ........................
X
X
X
X
X
X
X
X
....................
....................
....................
....................
X
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
Subunit
X
X
Subunit 4A ...
Subunit 4B ...........
Subunit 4A/B.
X
....................
Subunit 4C ...
Subunit 4C ...........
Subunit 4C.
X
X
....................
....................
Subunit 4D.
Subunits 4E, 4F.
X
....................
X
....................
Subunit 4D ...
Considered
essential;
not proposed.
Considered
essential;
not proposed.
Subunit 4B ...
Subunit 4D ...........
Considered essential; not proposed.
Tierra Alta (B5–6) ..................................
X
....................
Subunit 4B ...
Winterwood (C10–16) ............................
X
....................
Fieldstone (C17–18) ..............................
....................
....................
Considered
essential;
not proposed.
......................
Considered essential; not proposed.
Considered essential; not proposed.
Considered essential; not proposed.
Subunit 4G.
Lopez Ridge (B7–8) ...............................
Considered essential; not proposed.
Determined not to
be essential.
Mira Mesa Central (C26) .......................
Maddox (Maddox Park) .........................
X
....................
....................
......................
....................
X
Considered essential; not proposed.
Considered essential; not proposed.
Determined not to
be essential.
Carroll Canyon (D5–8) ...........................
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Subunit 2G.
Mira Mesa North (B) ..............................
MCAS Miramar (A4; F1–27; I7; U1–13;
U North; Z1–3, Z6; Z7; Z10; AA1–13;
EE1–2; FF1–2; HH1–4 and RR1–2).
Miramar Industrial ..................................
Nobel Drive (X5) ....................................
VerDate Aug<31>2005
Subunit 2B ...
Determined not to
be essential.
Subunit 2G ..........
Del Mar Mesa (H1–10, 13–15,
˜
Penasquitos North/Del Mar Mesa).
Murphy Canyon Navy Housing (G1–2
Tierrasanta South, G3).
Chollas Heights Navy Housing ..............
Carmel Mountain (H (undescribed)) ......
Unit 4 Central
coastal San
Diego
County.
Exempt under
4(a)(3).
San Marcos (L1–6, 9–10) ......................
San Marcos (L 11–13, 19) .....................
San Marcos (L7) ....................................
Unit 3 Inland
San Diego
County.
Subunits 2D, 2E,
2F.
X
....................
Considered essential; not proposed.
Exempt under
4(a)(3).
X
X
X
16:07 Dec 11, 2007
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3E
3E
3E
3F
3E
4A
...
...
...
...
...
...
Considered
essential;
not proposed.
Not included
under
3(5)(A).
E:\FR\FM\12DER2.SGM
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3E
3E
3E
3E
3E
4A
...........
...........
...........
...........
...........
...........
3E.1.
3E.2.
3E.3.
3E.3.
3E.4.
4A/B.
Subunit 4H.
Subunit 4I.
Subunit 4J.
70662
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
TABLE 1.—GUIDE TO CHANGES BETWEEN THE OCTOBER 23, 2000 CRITICAL HABITAT DESIGNATION, THE APRIL 22, 2003
PROPOSED DESIGNATION, AND THIS REVISED FINAL DESIGNATION—Continued
....................
X
....................
Cubic (U19, Cubic Pools) ......................
X
....................
Montgomery Field (N1–4, 6) ..................
X
X
Otay Mesa (J26) ....................................
X
X
Otay Mesa (J23–25) ..............................
X
X
Otay Mesa (J29–30) ..............................
X
....................
Otay Mesa (J22) ....................................
Otay Mesa (J27–28) ..............................
....................
X
X
X
Otay Mesa ..............................................
....................
X
Considered
essential;
not proposed.
Excluded
under
4(b)(2).
Excluded
under
4(b)(2).
Considered
essential;
not proposed.
Excluded
under
4(b)(2).
Considered
essential;
not proposed.
Considered
essential;
not proposed.
Subunit 5C ...
Considered
essential;
not proposed.
......................
Naval Base Coronado, Naval Radar Receiving Facility.
....................
X
......................
Naval Base Coronado, Navy Outlying
Landing Field (Tijuana Estuary).
Otay Mesa (J11–21) ..............................
X
....................
Subunit 5D ...
X
....................
Otay Mesa (J2, 5, 7) ..............................
X
....................
Otay River Valley (K1) ...........................
X
....................
Considered
essential;
not proposed.
Considered
essential;
not proposed.
Subunit 5B ...
Otay River Valley (K2) ...........................
X
....................
Otay River Valley (K6) ...........................
Lower Otay Reservoir (K3–5) ................
X
....................
X
......................
Otay Lakes Road (K7) ...........................
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X
SANDER and Magnatron (U15, SANDER).
X
....................
Subunit 5A ...
Marron Valley .........................................
Unit 5 South
San Diego
County.
Area identification used in this rule
(naming convention in recovery plan)*
San Diego
fairy shrimp
detected following the
recovery
plan
New Century (BB2) ................................
Unit
Included in
Appendix F
or G 1998
recovery
plan
....................
X
......................
2000
Designation
of critical
habitat*
2003 Proposed
revision to the
critical habitat
designation*
2007 Final revised
critical habitat
designation*
Considered essential; not proposed.
Considered essential; not proposed.
Considered essential; not proposed.
Subunit 4K.
Considered essential; not proposed.
Considered essential; not proposed.
Subunit 5A.
Considered essential; not proposed.
Subunit 5B.
Subunit 5C ...........
Subunit 5C.
Considered essential; not proposed.
Considered essential; not proposed.
Subunit 5E ...........
Subunit 5D.
Considered essential; not proposed.
Subunit 4L.
Subunit 4M.
Excluded under
4(b)(2).
Exempt under
4(a)(3).
Exempt under
4(a)(3).
Subunit 5F.
Considered essential; not proposed.
Subunit 5G.
Considered essential; not proposed.
Determined not to
be essential.
Considered essential; not proposed.
Determined not to
be essential.
Considered essential; not proposed.
Subunit 5H.
Determined
not to be
essential.
Subunit 5I.
* The unit and subunit areas listed in this table have changed in size and configuration, largely due to the various methods that were used to
delineate critical habitat. The table is provided to make general comparisons between analogous areas, but not meant to define which individual
vernal pools were or were not included in each specific unit or subunit.
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Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
Critical Habitat
Critical habitat is defined in section
3(5)(A) of the Act as:
(i) The specific areas within the
geographical area occupied by the
species, at the time it is listed in
accordance with the Act, on which are
found those physical or biological
features
(I) Essential to the conservation of the
species and
(II) Which may require special
management considerations or
protection; and
(ii) Specific areas outside the
geographical area occupied by the
species at the time it is listed, upon a
determination that such areas are
essential for the conservation of the
species.
Conservation, as defined under
section 3 of the Act, means the use of
all methods and procedures that are
necessary to bring any endangered
species or threatened species to the
point at which the measures provided
under the Act are no longer necessary.
Such methods and procedures include,
but are not limited to, all activities
associated with scientific resources
management such as research, census,
law enforcement, habitat acquisition
and maintenance, propagation, live
trapping, and transplantation, and, in
the extraordinary case where population
pressures within a given ecosystem
cannot be otherwise relieved, may
include regulated taking.
Critical habitat receives protection
under section 7 of the Act through the
prohibition against Federal agencies
carrying out, funding, or authorizing the
destruction or adverse modification of
critical habitat. Section 7(a)(2) of the Act
requires consultation on Federal actions
that may affect critical habitat. The
designation of critical habitat does not
affect land ownership or establish a
refuge, wilderness, reserve, preserve, or
other conservation area. Such
designation does not allow the
government or public to access private
lands. Such designation does not
require implementation of restoration,
recovery, or enhancement measures by
the landowner. Where the landowner
seeks or requests federal agency funding
or authorization that may affect a listed
species or critical habitat, the
consultation requirements of Section 7
would apply, but even in the event of
a destruction or adverse modification
finding, the landowner’s obligation is
not to restore or recover the species, but
to implement reasonable and prudent
alternatives to avoid destruction or
adverse modification of critical habitat.
For inclusion in a critical habitat
designation, habitat within the
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16:07 Dec 11, 2007
Jkt 214001
geographical area occupied by the
species at the time it was listed must
contain features that are essential to the
conservation of the species. Critical
habitat designations identify, to the
extent known using the best scientific
data available, habitat areas that provide
essential life cycle needs of the species
(areas on which are found the primary
constituent elements, as defined at 50
CFR 424.12(b)).
Occupied habitat that contains the
features essential to the conservation of
the species meets the definition of
critical habitat only if those features
may require special management
considerations or protection.
Under the Act, we can designate areas
outside of the geographical area
occupied by the species at the time of
listing only when we determine that the
best available scientific data
demonstrate that the designation of such
areas is essential to the conservation
needs of the species.
Section 4 of the Act requires that we
designate critical habitat on the basis of
the best scientific and commercial data
available. Further, our Policy on
Information Standards Under the
Endangered Species Act (published in
the Federal Register on July 1, 1994 (59
FR 34271)), the Information Quality Act
(section 515 of the Treasury and General
Government Appropriations Act for
Fiscal Year 2001 (Pub. L. 106–554; H.R.
5658)), and the associated Information
Quality Guidelines issued by the
Service, provide criteria, establish
procedures, and provide guidance to
ensure that our decisions are based on
the best scientific data available. They
require Service biologists, to the extent
consistent with the Act and with the use
of the best scientific data available, to
use primary and original sources of
information as the basis for
recommendations to designate critical
habitat.
When we are determining which areas
should be designated as critical habitat,
our primary source of information is
generally the information developed
during the listing process for the
species. Additional information sources
may include the recovery plan for the
species, articles in peer-reviewed
journals, conservation plans developed
by States and counties, scientific status
surveys and studies, biological
assessments, or other unpublished
materials and expert opinion or
personal knowledge.
Habitat is often dynamic, and species
may move from one area to another over
time. Furthermore, we recognize that
designation of critical habitat may not
include all of the habitat areas that we
may eventually determine, based on
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70663
scientific data not now available to the
Service, are necessary for the recovery
of the species. For these reasons, a
critical habitat designation does not
signal that habitat outside the
designated area is unimportant or may
not be required for recovery of the
species.
Areas that support populations of San
Diego fairy shrimp, but are outside the
critical habitat designation, will
continue to be subject to conservation
actions we implement under section
7(a)(1) of the Act. They are also subject
to the regulatory protections afforded by
the section 7(a)(2) jeopardy standard, as
determined on the basis of the best
available scientific information at the
time of the agency action. Federally
funded or permitted projects affecting
listed species outside their designated
critical habitat areas may still result in
jeopardy findings in some cases.
Similarly, critical habitat designations
made on the basis of the best available
information at the time of designation
will not control the direction and
substance of future recovery plans,
habitat conservation plans (HCPs), or
other species conservation planning
efforts if new information available to
these planning efforts calls for a
different outcome.
Primary Constituent Elements
In accordance with section 3(5)(A)(i)
of the Act and the regulations at 50 CFR
424.12, in determining which areas
within the geographical area occupied
by the species at the time of listing to
designate as critical habitat, we consider
the physical and biological features that
are essential to the conservation of the
species to be the primary constituent
elements (PCEs) laid out in the
appropriate quantity and spatial
arrangement for conservation of the
species. These include, but are not
limited to:
(1) Space for individual and
population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or
other nutritional or physiological
requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or
rearing (or development) of offspring;
and
(5) Habitats that are protected from
disturbance or are representative of the
historical, geographical, and ecological
distributions of a species.
We derive the specific primary
constituent elements required for the
San Diego fairy shrimp from the
biological needs of the San Diego fairy
shrimp as described in the proposed
critical habitat rule published in the
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Federal Register on April 22, 2003 (68
FR 19888), and below.
Space for Individual and Population
Growth, and for Normal Behavior
San Diego fairy shrimp require vernal
pool habitat to grow and reproduce.
Their life cycle requires periods of
inundation as well as dry periods
(Ripley et al. 2004, pp. 221–223). The
San Diego fairy shrimp is most often
found in vernal pools or vernal pool
complexes that have the appropriate
temperature, water chemistry, depth,
and duration. More specifically, San
Diego fairy shrimp are found in vernal
and ephemeral wetlands that range in
ponding duration from 7 days to 2
months and that range in depth from
less than 2 inches (in) (5 centimeters
(cm)) to over 12 in (30 cm) (Simovich
and Fugate 1992, p. 111; Hathaway and
Simovich 1996, p. 670). For the
appropriate conditions to occur, the
following factors are necessary: (1)
Associated hydrology that provides
water to fill the pools; and (2) any soil
type with a claypan or hardpan
component that forms an impermeable
layer and provides space for individual
and population growth and normal
behavior. Vernal pool hydrology (i.e.,
seasonal filling and drying of vernal
pools) is an essential feature that
governs the life cycle of the San Diego
fairy shrimp; proper timing, duration,
and depth of these hydrological
processes is necessary for cyst hatching
and successful reproduction of San
Diego fairy shrimp.
Vernal pools generally occur in
complexes. Vernal pool complexes are
defined by two or more vernal pools in
the context of a larger vernal pool
watershed. Adjacent upland habitat also
contributes to the overall functions
important to the vernal pool ecosystem.
Protection of the upland habitat
between vernal pools within the vernal
pool watershed is important for
maintaining the hydroperiods of
adequate length to support the entire
reproductive cycle for San Diego fairy
shrimp and to buffer the vernal pools
from edge effects. During periods of
high rainfall, adult fairy shrimp and
cysts (dormant eggs) may be transported
between vernal pools in a complex as
individual pools become connected by
over surface flows of water. To maintain
high-quality vernal pool ecosystems, all
components including the vernal pool
basin, the vernal pool watershed, and
the surrounding upland habitat must be
available and functional (Hanes and
Stromberg 1998, p. 38). Many of the
remaining pools that support the San
Diego fairy shrimp are no longer in a
pristine or undisturbed state. Yet these
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16:07 Dec 11, 2007
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pools, and the associated upland
habitat, continue to function and
provide space for individual and
population growth and for normal
behavior.
Food, Water, Air, Light, Minerals, or
Other Nutritional or Physiological
Requirements
Temperature, water chemistry, and
length of time vernal pools are
inundated with water are factors that
play an important role in the
distribution and temporal appearance of
the San Diego fairy shrimp (Gonzalez et
al. 1996, pp. 315–316; Hathway and
Simovich 1996, p. 669). San Diego fairy
shrimp hatch and reproduce in water at
temperatures that range from 41 to 68
degrees Fahrenheit (F) (5 to 20 degrees
Celsius (C)), and do not hatch at
temperature greater than 77 degrees F
(25 degrees C) (Hathway and Simovich
1996, pp. 674–675). This limitation
keeps San Diego fairy shrimp from
hatching during the summer months if
the vernal pools were to fill with water.
Also, San Diego fairy shrimp do not
survive well in temperatures below 41
degrees F (5 degrees C) (Hathaway and
Simovich 1996, pp. 674–675). San Diego
fairy shrimp typically inhabit dilute,
freshwater pools with low levels of total
dissolved solids (low ion levels (Na+
concentrations below 60 millimoles per
liter (mmol/l)), low alkalinity levels
(lower than 80 to 1,000 milligrams per
liter (mg/l)), and that are characterized
by a range of pH levels from neutral to
alkaline (8.0 to 10.3) (Gonzalez et al.
1996, pp. 319–322). The San Diego fairy
shrimp is not known to successfully
mature and reproduce outside these
limits in laboratory conditions;
therefore, proper temperature, water
chemistry, and length of time vernal
pools are inundated may be necessary
for survival and successful
reproduction.
San Diego fairy shrimp have been
shown to tightly regulate their internal
body chemistry in pool environments
that have low salinity and low alkalinity
(Gonzalez et al. 1996, pp. 319–322). In
a laboratory experiment, San Diego fairy
shrimp were unable to maintain their
body chemistry balance in conditions
with sodium ion (Na+) concentrations
greater than 60 mmol/l but less than half
survived when concentrations exceeded
100 mmol/l (Gonzalez et al. 1996, pp.
319–322). This limited tolerance for
saline conditions is one of the factors
that restrict the San Diego fairy shrimp
to its current range. San Diego fairy
shrimp are filter feeders and their diet
consists mostly of algae, bacteria, and
other microorganisms (Parsick 2002, pp.
37–41, 65–70). In a natural vernal pool
PO 00000
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Fmt 4701
Sfmt 4700
setting these food items are readily
available.
Sites for Breeding, Reproduction and
Rearing of Offspring
Adult San Diego fairy shrimp are
usually observed from January to March.
In years with early or late rainfall, the
hatching period may be extended. When
vernal pools fill with water the cysts
hatch and juvenile fairy shrimp quickly
develop into adults. San Diego fairy
shrimp can reach sexually maturity and
begin mating in 7 to 10 days from the
time the vernal pool fills with water.
When the females’ eggs are fertilized
they begin to develop; however, the
development of the fertilized eggs stops
at an early stage and the eggs become
dormant. The dormant eggs are referred
to as ‘‘cysts’’ or ‘‘resting eggs’’ and each
egg is smaller than the tip of a pencil
and contains a dormant fairy shrimp
embryo encased in a hard outer shell.
Cysts drop to the bottom of the vernal
pool and then become part of the cyst
bank in the soil of the vernal pool. In
the absence of more rainfall the vernal
pool dries and any remaining adult San
Diego fairy shrimp die as the water
evaporates. The cysts, however, are
capable of withstanding temperature
extremes and prolonged drying (i.e.,
drought conditions lasting several
years). During subsequent filling events
these cysts will emerge from dormancy
and hatch. Researchers have found that
only a small portion of the cysts in the
cyst bank hatch each time the vernal
pool fills. Simovich and Hathaway
(1997, pp. 40–43) referred to this as
‘‘bet-hedging’’ and concluded that it
allows the San Diego fairy shrimp to
survive in an unpredictable
environment. Many times when a vernal
pool fills, the pool will evaporate before
San Diego fairy shrimp are able to
reproduce (Ripley et al. 2004, pp. 221–
223). The ‘‘bet-hedging’’ insures that
some cysts will hatch when the vernal
pools hold water for a period long
enough for the San Diego fairy shrimp
to complete its entire life cycle. Thus,
reproductive output of small aquatic
crustaceans living in variable
environments is spread over several
seasons.
Primary Constituent Elements for the
San Diego Fairy Shrimp
Within the geographical area
occupied by the San Diego fairy shrimp,
we must identify the PCEs that may
require special management
considerations or protection. All areas
designated as critical habitat for San
Diego fairy shrimp are occupied, within
the species’ geographic range, and
contain sufficient PCEs to support at
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least one life history function. In the
case of this designation, all of the units
contain all of the PCEs. The data
provided in these PCEs have been
generalized from existing scientific data.
There may be cases where San Diego
fairy shrimp persist in conditions
outside the ranges expressed in these
PCEs. It is also important to note that
the variable amounts and timing of
precipitation in southern California do
not result in favorable conditions for
San Diego fairy shrimp in every year.
Based on our current knowledge of
the life history, biology, and ecology of
the species and the requirements of the
habitat to sustain the essential life
history functions of the species, we have
determined that the San Diego fairy
shrimp’s PCEs are:
(1) Vernal pools with shallow to
moderate depths (2 in (5 cm) to 12 in
(30 cm)) that hold water for sufficient
lengths of time (7 to 60 days) necessary
for incubation, maturation, and
reproduction of the San Diego fairy
shrimp, in all but the driest years;
(2) Topographic features characterized
by mounds and swales and depressions
within a matrix of surrounding uplands
that result in complexes of
continuously, or intermittently, flowing
surface water in the swales connecting
the pools described in PCE 1, providing
for dispersal and promoting
hydroperiods of adequate length in the
pools (i.e., the vernal pool watershed);
and
(3) Flat to gently sloping topography,
and any soil type with a clay component
and/or an impermeable surface or
subsurface layer known to support
vernal pool habitat (including Carlsbad,
Chesterton, Diablo, Huerhuero, Linne,
Olivenhain, Placentia, Redding, and
Stockpen soils).
We have designed this revised final
designation for the conservation of PCEs
necessary to support the life history
functions and the areas containing those
PCEs. The matrix of vernal pools/
ephemeral wetlands, upland habitats,
and underlying soil substrates in
combination create ecologically
functional units. These features and the
lands that they represent are essential to
the conservation of the San Diego fairy
shrimp. All lands designated as critical
habitat contain all of the features
essential to the conservation of the San
Diego fairy shrimp (i.e., PCEs). As stated
in the Summary of Changes section of
this rule, we believe that a designation
limited to the extant range is adequate
to conserve the San Diego fairy shrimp.
We designate units based on sufficient
PCEs being present to support at least
one of the species’ life history functions.
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16:07 Dec 11, 2007
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In the case of this designation, all of the
units contain all of the PCEs.
Special Management Considerations or
Protection
When designating critical habitat
under the first prong of the statutory
definition of critical habitat, as here, we
assess whether areas within the
geographical area occupied by the
species contain features that are
essential to the conservation of the
species and that may require special
management considerations or
protection. In this section, we describe
special management considerations and
protection required to conserve the
PCEs for the San Diego fairy shrimp.
The most pressing threat to critical
habitat for the San Diego fairy shrimp is
the loss of habitat. Vernal pools
supporting the San Diego fairy shrimp
are found on level or gently sloping land
within 40 mi (64 km) of the coast.
Virtually all of this land is sought after
for commercial and residential
development. Soils supporting vernal
pools have been almost completely lost
to development (Bauder and McMillan
1998, p. 56). Development of an area can
directly impact all the PCEs for this
species if the vernal pool basins are lost
during the development process. The
vernal pool basin (PCE 1) can also be
indirectly impacted by development if
the vernal pool watershed (PCE 2) is
impacted during the development
process. Development can also
indirectly impact PCE 1 and PCE 2 if the
vernal pool soils or topography is
altered (PCE 3). Specifically, the
following subunits include land that is
not protected from development
through ownership by a conservation
organization or by a conservation
easement or other similar legal
mechanisms: 1C; 3A; 3C; 3E.1; 3E.2;
3E.3; 3E.4; 4A/B; 4H; 4J–4M; 5A–5D; 5F;
and 5G. These lands require special
management considerations or
protections from negative impacts
associated with development.
Once a vernal pool complex has been
protected from loss from habitat
conversion or development, it is still
necessary to ensure that the habitat is
not degraded as a result of altered
hydrology, contamination, nonnative
species invasions, or other incompatible
land uses (e.g., off-road vehicle use,
mountain bike use, illegal dumping).
Special management considerations are
necessary to ensure that vernal pool
habitat protected for the San Diego fairy
shrimp retains the physical and
biological features essential to the
conservation of the San Diego fairy
shrimp. As discussed below, all of the
subunits designated as critical habitat
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Fmt 4701
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70665
require some form of special
management consideration or protection
of their constituent PCEs.
Special management may be
necessary to prevent and reduce
incursion of nonnative invasive plant
species that alter PCE 1. Nonnative
plant species can impact the duration of
ponding in a vernal pool basin.
Nonnative plant species can also impact
the vernal pool watershed (PCE 2) by
reducing the inundation period through
an over-abundance of vegetation within
the watershed (Marty 2005, p. 1630).
Special management actions can be
taken to reduce the negative effects of
such invasions. Removal of weed
species by hand, increased planting of
vernal pool species, mowing, restoration
of native species in the upland areas,
and prescribed burns may be potential
tools to manage this threat. Nonnative
species threaten the following subunits:
1C; 2G; 3A; 3C; 3D; 3E.1; 3E.2; 3E.3;
3E.4; 4I–4M; 5A–5D; 5F; 5G; and 5I.
Special management considerations
or protections may be necessary to
protect and restore vernal pool
hydrology (PCE 1 and PCE 2). Alteration
of natural hydrology directly threatens
San Diego fairy shrimp, and the
invasion of nonnative species may be
facilitated by alterations in the natural
vernal pool hydrology. Runoff from
adjacent developments should be
monitored to ensure that a pool’s
hydrology has not been altered, either
through changes in ponding duration or
changes to water temperature or
chemistry. Discing, grading and digging
in ways that impact the topography and
soils near vernal pool complexes (PCE
3) can also indirectly impact the
hydrology (PCE 1 and PCE 2). Altered
hydrology threatens the following
subunits: 1C; 2G; 3A; 3C; 3D; 3E.1; 3E.2;
3E.3; 3E.4; 4A/B; 4I–4M; 5A–5D; 5F; 5G
and 5I.
Special management considerations
or protection may be necessary to
reduce degradation of vernal pools.
Management actions such as fencing,
trail building, and sign posting can help
to reduce human activities that threaten
San Diego fairy shrimp habitat.
Vehicular traffic can impact to adult and
juvenile San Diego fairy shrimp, and
may crush cysts during the wet season
(Hathaway et al. 1996, p. 451).
Motorized and non-motorized off-road
vehicle use, illegal trash dumping, and
trampling can: (1) Affect the ponding
duration in the vernal pool by
increasing or decreasing the amount of
water in the basin (PCE 1) or move soils
and alter the topography, and (2) divert
water or compact the soil such that the
water does not saturate the soils (PCE 2).
Degradation associated with human
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activities threatens the following
subunits: 1C; 2G; 3A; 3C; 3D; 3E.1; 3E.2;
3E.3; 3E.4; 4A/B; 4C–4F; 4I–4M; 5A–5I.
The control of invasive nonnative
species, the maintenance and
enhancement of natural vernal pool
hydrology, and the control of
incompatible and often illegal activities,
such as off-road vehicle use and trash
dumping, will help to ensure the
preservation of vernal pool complexes.
Ongoing monitoring of the threats to
preserved vernal pool complexes and
the San Diego fairy shrimp in each
vernal pool complex is necessary for the
long-term conservation of the San Diego
fairy shrimp.
mstockstill on PROD1PC66 with RULES2
Criteria Used To Identify Critical
Habitat
As required by section 4(b)(1)(A) of
the Act, we use the best scientific and
commercial data available in
determining the specific areas within
the geographical area occupied by the
species at listing that contain the
features essential to the conservation of
species which may require special
management considerations or
protection, as well as when determining
if any specific areas outside the
geographical area occupied by the
species at listing are essential to the
conservation of the species. We only
designate areas outside the geographical
area occupied at the time of listing by
a species when a designation limited to
its present range would be inadequate to
ensure the conservation of the species
(50 CFR 424.12(e)).
We based this final revision to the
critical habitat designation on the 1998
recovery plan, which calls for the
preservation and enhancement of
existing vernal pools that are within the
extant range of the San Diego fairy
shrimp (Service 1998a). We used all
scientific and commercial data available
to identify existing vernal pool
complexes that contain San Diego fairy
shrimp. Occupancy status was
determined using occurrence data from
the CNDDB (2001, 2004, 2007), the City
of San Diego’s Vernal Pool Inventory
(2003), the Ramona Vernal Pool
Conservation Study (TAIC and EDAW
2005), Appendix E of the Recovery Plan
for Vernal Pools of Southern California
(Service 1998a, pp. E1–E16), and
10(A)(1)(a) reports submitted to the
Service for San Diego fairy shrimp.
Since the publication of the recovery
plan we have become aware of several
more vernal pool complexes that are
VerDate Aug<31>2005
16:07 Dec 11, 2007
Jkt 214001
occupied by the San Diego fairy shrimp.
In addition to vernal pool complexes
identified in appendices F and G, we
have included the following areas in
this designation that were not identified
as essential to the San Diego fairy
shrimp in the recovery plan or the 2000
designation of critical habitat: Subunits
1A; 1B; 1C; 1D; 5D; 5H; and 5I (see
Table 1).
We consider all of the vernal pool
complexes designated as critical habitat
to have been occupied at the time of
listing and to be currently occupied by
the San Diego fairy shrimp. Genetic
studies indicate that there is low rate of
dispersal for this species, meaning that
it is infrequent for San Diego fairy
shrimp to move from one area to
another. The San Diego fairy shrimp
was first described in 1993, and there
are only a limited number of people
who have been trained to survey for this
species (Fugate 1993, pp. 296–304). As
a result, ‘‘new’’ populations of this
species have been identified since
listing in 1997, not because the San
Diego fairy shrimp recently appeared
there, but rather San Diego fairy shrimp
were discovered at new locations the
first time focused surveys were
conducted at those locations. For these
reasons we believe that all areas
designated as critical habitat were
occupied by San Diego fairy shrimp at
the time of listing. As stated above, we
believe that a designation encompassing
habitat within the extant range of the
San Diego fairy shrimp is adequate to
conserve this species. After we
delineated all of the vernal pool
complexes occupied by San Diego fairy
shrimp, we examined the complexes to
delineate the watersheds associated
with the complexes and determined the
extent of the PCEs in each complex and
watershed. Areas determined to contain
the PCEs were based on the boundaries
of vernal pool complexes delineated in
Beauchamp and Cass 1979 (pp. 12–13)
and Bauder 1986 (Appendix 4).
However, these boundaries were drawn
to group and classify vernal pool
complexes and did not always capture
the entire watershed area needed to
support the vernal pool complex. To
better capture the watershed areas in the
critical habitat we included areas of
similar topography and soil type
(Service GIS database; soils described by
Bowman 1973, pp. 7–17).
Finally, we removed vernal pool
complexes that lack any evidence to
indicate historical or current occupancy
PO 00000
Frm 00020
Fmt 4701
Sfmt 4700
by San Diego fairy shrimp or that are
unlikely to contribute to the
conservation of the species due to
location or other limitations. We
removed subunit 3B in San Marco; the
Fieldstone vernal pools; and the K1, K2
and K6 vernal pool complexes (see
Summary of Changes From Previously
Designated Critical Habitat and 2003
Proposed Rule for additional details on
these areas).
When determining critical habitat
boundaries within this final rule, we
made every effort to avoid including
developed areas such as lands
containing buildings, paved areas, and
other structures that lack PCEs for San
Diego fairy shrimp. The scale of the
maps we prepared under the parameters
for publication within the Code of
Federal Regulations may not reflect the
exclusion of such developed areas. Any
such structures and the land under them
inadvertently left inside critical habitat
boundaries shown on the maps of this
final rule are excluded by text in the
final rule and are not designated as
critical habitat. Therefore, Federal
actions involving these areas would not
trigger section 7 consultation with
respect to critical habitat and the
requirement of no adverse modification
unless the specific action would affect
the primary constituent elements in the
adjacent critical habitat.
Revisions to the Critical Habitat
Designation
We are designating 3,082 ac (1,248 ha)
of land as critical habitat for San Diego
fairy shrimp in 5 units with a total of
29 subunits. Table 2 outlines the areas
included (definitional areas) and the
areas excluded and exempt from this
revised final critical habitat. Subunits
designated as critical habitat are
discussed in detail below in the Unit
Description section; exempt or excluded
subunits are further discussed in the
Exemptions and Exclusions section
below. The five units in this final
revision to critical habitat are defined by
the Management Areas described in the
recovery plan (Service 1998a, pp. 35–
44). The critical habitat areas described
below constitute our best assessment of
the areas that are within the
geographical area occupied by the San
Diego fairy shrimp at the time of listing
and that contain the primary constituent
elements essential to the conservation of
the San Diego fairy shrimp that may
require special management
considerations or protection.
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Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
70667
TABLE 2.—SIZE OF AREAS CONTAINING FEATURES ESSENTIAL TO THE CONSERVATION OF THE SAN DIEGO FAIRY SHRIMP
(DEFINITIONAL AREA), THE AREA EXCLUDED OR EXEMPT FROM THE FINAL CRITICAL HABITAT DESIGNATION (EXCLUDED AND EXEMPT AREA), AND THE TOTAL AREA DESIGNATED FOR EACH SUBUNIT OF CRITICAL HABITAT (TOTAL
DESIGNATED). NUMBERS HAVE BEEN ROUNDED TO THE NEAREST WHOLE DIGIT AND MAY OVERESTIMATE AREA DUE
TO ROUNDING
Unit/subunit
Geographic area
Definitional area
Excluded and exempt area
Unit 1 ...................
1A ........................
1B ........................
1C ........................
1D ........................
1E ........................
Orange County.
North Ranch Policy Plan Area .........
Costa Mesa Fairview Park ...............
Newport-Banning Ranch ..................
Chiquita Ridge ..................................
Radio Tower Road ...........................
4 ac (2 ha) ........................
43 ac (17 ha) ....................
15 ac (6 ha) ......................
56 ac (23 ha) ....................
84 ac (34 ha) ....................
4 ac (2 ha) ........................
43 ac (17 ha) ....................
0 ac (0 ha) ........................
56 ac (23 ha) ....................
84 ac (34 ha) ....................
0 ac (0 ha).
0 ac (0 ha).
15 ac (6 ha).
0 ac (0 ha).
0 ac (0 ha).
...........................................................
202 ac (82 ha) ..................
187 ac (76 ha) ..................
15 ac (6 ha).
17 ac (9 ha) ......................
17 ac (9 ha) ......................
0 ac (0 ha).
43 ac (17 ha) ....................
43 ac (17 ha) ....................
0 ac (0 ha).
132 ac (53 ha) ..................
132 ac (53 ha) ..................
0 ac (0 ha).
155 ac (63 ha) ..................
155 ac (63 ha) ..................
0 ac (0 ha).
18 ac (7 ha) ......................
18 ac (7 ha) ......................
0 ac (0 ha).
203 ac (82 ha) ..................
203 ac (82 ha) ..................
0 ac (0 ha).
6 ac (3 ha) ........................
7182 ac (2906 ha) ............
0 ac (0 ha) ........................
7182 ac (2906 ha) ............
6 ac (3 ha).
0 ac (0 ha).
...........................................................
7756 ac (3140 ha) ............
7750 ac (3137 ha) ............
6 ac (3 ha).
Inland Valley, San Diego County.
San Marcos, northeast unit ..............
San Marcos, southwest unit .............
San Marcos, southeast unit ..............
Ramona, grasslands .........................
Ramona, airport ................................
Ramona, downtown ..........................
Ramona, high school ........................
17 ac (7 ha) ......................
63 ac (25 ha) ....................
5 ac (2 ha) ........................
382 ac (154 ha) ................
191 ac (77 ha) ..................
27 ac (11 ha) ....................
40 ac (16 ha) ....................
0
0
0
0
0
0
0
17 ac (7 ha).
63 ac (25 ha).
5 ac (2 ha).
382 ac (154 ha).
191 ac (77 ha).
27 ac (11 ha).
40 ac (16 ha).
...........................................................
725 ac (292 ha)* ..............
0 ac (0 ha) ........................
725 ac (292 ha).*
Central Coastal Mesa, San Diego
County.
Del Mar Mesa ...................................
Murphy Canyon Navy Housing ........
Chollas Heights Navy Housing .........
Carmel Mountain, west .....................
Carmel Mountain, east .....................
Tierra Alta .........................................
Lopez Ridge .....................................
Winterwood .......................................
Carroll Canyon ..................................
Sander and Magnatron .....................
Cubic .................................................
Montgomery Field .............................
MCAS Miramar .................................
252 ac (102 ha) ................
41 ac (17 ha) ....................
16 ac (7 ha) ......................
32 ac (13 ha) ....................
4 ac (2 ha) ........................
5 ac (2 ha) ........................
11 ac (4 ha) ......................
17 ac (7 ha) ......................
14 ac (6 ha) ......................
56 ac (23 ha) ....................
7 ac (3 ha) ........................
96 ac (39 ha) ....................
1703 ac (689 ha) ..............
0 ac (0 ha) ........................
0 ac (0 ha) ........................
0 ac (0 ha) ........................
0 ac (0 ha) ........................
0 ac (0 ha) ........................
0 ac (0 ha) ........................
0 ac (0 ha) ........................
0 ac (0 ha) ........................
0 ac (0 ha) ........................
0 ac (0 ha) ........................
0 ac (0 ha) ........................
0 ac (0 ha) ........................
1703 ac (689 ha) ..............
252 ac (102 ha).
41 ac (17 ha).
16 ac (7 ha).
32 ac (13 ha).
4 ac (2 ha).
5 ac (2 ha).
11 ac (4 ha).
17 ac (7 ha).
14 ac (6 ha).
56 ac (23 ha).
7 ac (3 ha).
96 ac (39 ha).
0 ac (0 ha).
...........................................................
2254 ac (914 ha) ..............
1703 ac (689 ha) ..............
551 ac (225 ha).
Southern Coastal Mesa, San Diego
County.
Otay Mesa, northeast unit ................
Otay Mesa, north unit .......................
Otay Mesa, east unit ........................
Otay Mesa, southeast unit ...............
234 ac (95 ha) ..................
327 ac (132 ha) ................
75 ac (30 ha) ....................
391 ac (158 ha) ................
196 ac (79 ha) ..................
23 ac (9 ha) ......................
0 ac (0 ha) ........................
0 ac (0 ha) ........................
38 ac (16 ha).
304 ac (123 ha).
75 ac (30 ha).
391 ac (158 ha).
Subtotal for
Unit 1.
Unit 2 ...................
2A ........................
2B ........................
2C ........................
2D ........................
2E ........................
2F ........................
2G .......................
Subtotal for
Unit 2.
Unit 3 ...................
3A ........................
3C ........................
3D ........................
3E.1 .....................
3E.2 .....................
3E.3 .....................
3E.4 .....................
Subtotal for
Unit 3.
Unit 4 ...................
4A/B ....................
4C ........................
4D ........................
4E ........................
4F ........................
4G .......................
4H ........................
4I .........................
4J ........................
4K ........................
4L ........................
4M .......................
mstockstill on PROD1PC66 with RULES2
Subtotal for
Unit 4.
Unit 5 ...................
5A
5B
5C
5D
........................
........................
........................
........................
VerDate Aug<31>2005
North Coastal Mesa, San Diego
County.
MCB Camp Pendleton, San Onofre
State Lease Area.
MCB Camp Pendleton, Cockleburr
Mesa.
MCB Camp Pendleton, Cockleburr
Mesa.
MCB Camp Pendleton, Wire Mountain Housing.
MCB Camp Pendleton, Wire Mountain Housing.
MCB Camp Pendleton, Wire Mountain Housing.
Poinsettia Lane Commuter Station ..
MCB Camp Pendleton, training
areas.
16:07 Dec 11, 2007
Jkt 214001
PO 00000
Frm 00021
Fmt 4701
Sfmt 4700
ac
ac
ac
ac
ac
ac
ac
(0
(0
(0
(0
(0
(0
(0
ha)
ha)
ha)
ha)
ha)
ha)
ha)
........................
........................
........................
........................
........................
........................
........................
E:\FR\FM\12DER2.SGM
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Total designated
70668
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TABLE 2.—SIZE OF AREAS CONTAINING FEATURES ESSENTIAL TO THE CONSERVATION OF THE SAN DIEGO FAIRY SHRIMP
(DEFINITIONAL AREA), THE AREA EXCLUDED OR EXEMPT FROM THE FINAL CRITICAL HABITAT DESIGNATION (EXCLUDED AND EXEMPT AREA), AND THE TOTAL AREA DESIGNATED FOR EACH SUBUNIT OF CRITICAL HABITAT (TOTAL
DESIGNATED). NUMBERS HAVE BEEN ROUNDED TO THE NEAREST WHOLE DIGIT AND MAY OVERESTIMATE AREA DUE
TO ROUNDING—Continued
Unit/subunit
Geographic area
Definitional area
Excluded and exempt area
5E ........................
Naval
Outlying
Landing
Field
(NOLF).
Otay Mesa, southwest unit ...............
Otay Mesa, northwest unit ...............
Lower Otay Reservoir .......................
Marron Valley ...................................
Naval Radar Receiving Facility
(NRRF).
8 ac (3 ha) ........................
8 ac (3 ha) ........................
0 ac (0 ha).
650 ac (263 ha) ................
132 ac (53 ha) ..................
205 ac (83 ha) ..................
24 ac (10 ha) ....................
161 ac (65 ha) ..................
29 ac (12 ha) ....................
0 ac (0 ha) ........................
5 ac (2 ha) ........................
0 ac (0 ha) ........................
161 ac (61 ha) ..................
621 ac (251 ha).
132 ac (53 ha).
200 ac (81 ha).
24 ac (10 ha).
0 ac (0 ha).
...........................................................
2,207 ac (892 ha)* ...........
422 ac (170 ha)* ..............
1,785 ac (722 ha).*
...........................................................
13,144 ac (5,320 ha)* ......
10,062 ac (4,072 ha)* ......
3,082 ac (1,248 ha).*
5F ........................
5G .......................
5H ........................
5I .........................
Subtotal for
Unit 5.
Total ......
Total designated
*Figures in table may not sum due to rounding.
The approximate area encompassed
within each critical habitat subunit by
landownership is shown in Table 3.
TABLE 3.—CRITICAL HABITAT UNITS AND SUBUNITS FOR THE SAN DIEGO FAIRY SHRIMP. NUMBERS HAVE BEEN
ROUNDED TO THE NEAREST WHOLE DIGIT AND MAY OVERESTIMATE AREA DUE TO ROUNDING
Total
designated
Geographic area
Owner
Unit 1 ...........................
1C ................................
Orange County.
Newport-Banning Ranch .................................
Private .............................................................
15 ac (6 ha).
Unit 2 ...........................
2G ................................
North Coastal Mesa, San Diego County.
Poinsettia Lane Commuter Station .................
Private .............................................................
North County Transit District (NCTD) .............
2 ac (1 ha).
4 ac (2 ha).
Unit 3 ...........................
3A ................................
Inland Valley, San Diego County.
San Marcos, northeast unit .............................
3C ................................
San Marcos, southwest unit ...........................
3D ................................
3E.1 .............................
San Marcos, southeast unit ............................
Ramona, grasslands .......................................
3E.2 .............................
Ramona, airport ..............................................
3E.3 .............................
Ramona, downtown ........................................
3E.4 .............................
Ramona, high school ......................................
Private .............................................................
Other Special Districts ....................................
City of San Marcos .........................................
Water District ..................................................
Private .............................................................
Private .............................................................
Water District ..................................................
Private .............................................................
County of San Diego ......................................
Private .............................................................
Private .............................................................
County of San Diego ......................................
Ramona Unified School District ......................
Private .............................................................
16 ac (6 ha).
1 ac (<1 ha).
11 ac (4 ha).
4 ac (2 ha).
48 ac (19 ha).
5 ac (2 ha).
1 ac (<1 ha).
381 ac (153 ha).
67 ac (27 ha).
124 ac (50 ha).
26 ac (10 ha).
1 ac (<1 ha).
35 ac (14 ha).
5 ac (2 ha).
Unit 4 ...........................
4A/B .............................
Central Coastal Mesa, San Diego County.
Del Mar Mesa .................................................
4C ................................
Murphy Canyon Navy Housing .......................
4D ................................
4E ................................
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Unit/subunit
Chollas Heights Navy Housing .......................
Carmel Mountain, west ...................................
4F ................................
4G ................................
Carmel Mountain, east ....................................
Tierra Alta .......................................................
4H ................................
Lopez Ridge ....................................................
4I ..................................
Winterwood .....................................................
U.S. Fish and Wildlife Service ........................
State of California ...........................................
County of San Diego ......................................
City of San Diego ............................................
Private .............................................................
Department of Defense ...................................
City of San Diego ............................................
Department of Defense ...................................
City of San Diego ............................................
Private .............................................................
City of San Diego ............................................
City of San Diego ............................................
Private .............................................................
City of San Diego ............................................
Private .............................................................
City of San Diego ............................................
41 ac (16 ha).
56 ac (23 ha).
5 ac (2 ha).
51 ac (21 ha).
99 ac (40 ha).
40 ac (16 ha).
1 ac (<1 ha).
16 ac (7 ha).
31 ac (12 ha).
1 ac (<1 ha).
4 ac (2 ha).
2 ac (1 ha).
3 ac (1 ha).
7 ac (3 ha).
4 ac (2 ha).
17 ac (7 ha).
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70669
TABLE 3.—CRITICAL HABITAT UNITS AND SUBUNITS FOR THE SAN DIEGO FAIRY SHRIMP. NUMBERS HAVE BEEN
ROUNDED TO THE NEAREST WHOLE DIGIT AND MAY OVERESTIMATE AREA DUE TO ROUNDING—Continued
Total
designated
Unit/subunit
Geographic area
Owner
4J .................................
Carroll Canyon ................................................
4K ................................
SANDER and Magnatron ................................
4L .................................
4M ................................
Cubic ...............................................................
Montgomery Field ...........................................
City of San Diego ............................................
Private .............................................................
City of San Diego ............................................
Private .............................................................
Private .............................................................
City of San Diego ............................................
13 ac (5 ha).
1 ac (<1 ha).
55 ac (22 ha).
1 ac (1 ha).
7 ac (3 ha).
96 ac (39 ha).
Unit 5 ...........................
5A ................................
Southern Coastal Mesa, San Diego County.
Otay Mesa, northeast unit ..............................
5B
5C
5D
5F
Otay
Otay
Otay
Otay
16 ac (7 ha).
8 ac (3 ha).
1 ac (<1 ha).
13 ac (5 ha).
304 ac (123 ha).
75 ac (30 ha).
391 ac (158 ha).
11 ac (4 ha).
73 ac (30 ha).
537 ac (217 ha).
19 ac (7 ha).
113 ac (46 ha).
200 ac (81 ha).
24 ac (10 ha)
3,082 ac (1,248 ha)*.
5G ................................
Otay Mesa, northwest unit ..............................
5H ................................
5I ..................................
Lower Otay Reservoir .....................................
Marron Valley ..................................................
State of California ...........................................
County of San Diego ......................................
Water District ..................................................
Private .............................................................
Private .............................................................
Private .............................................................
Private .............................................................
U.S. Government ............................................
City of San Diego ............................................
Private .............................................................
City of San Diego ............................................
Private .............................................................
City of San Diego ............................................
City of San Diego ............................................
Total .....................
.........................................................................
.........................................................................
................................
................................
................................
................................
Mesa,
Mesa,
Mesa,
Mesa,
north unit .....................................
east unit .......................................
southeast unit ..............................
southwest unit .............................
*Figures in table may not sum due to rounding.
Unit Descriptions
We present brief descriptions of all
units and reasons why they meet the
definition of critical habitat for the San
Diego fairy shrimp below.
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Unit 1: Orange County (15 ac (6 ha))
Unit 1 is located in Orange County,
California. The area was occupied at the
time of listing and contains the PCEs
essential to the conservation of the San
Diego fairy shrimp that may require
special management considerations or
protection. The majority of the vernal
pools in Orange County were eliminated
prior to 1950 and only a small number
of vernal pool complexes remain
(Riefner and Pryor 1996, p. 300). This
unit represents the northern extent of
the species’ distribution in southern
California and represents the historical
distribution of coastal terrace vernal
pools in this area. The vernal pools in
Orange County are the only pools that
form on Alo clay, Calleguas clay loam,
Cieneba sandy loam, and Soper gravelly
loam that support the San Diego fairy
shrimp. This unit contains vernal pools
that support San Diego fairy shrimp
populations in the ‘‘Group A’’ genetic
clade (Bohonak 2007, p. 1). For these
reasons this unit is essential for
recovery of the San Diego fairy shrimp.
For more information about Unit 1
please see the proposed rule (68 FR
19888; April 22, 2003).
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Subunit 1A: The Irvine Ranch (Formerly
North Ranch Policy Plan Area)
We are excluding Subunit 1A from
critical habitat because this area is part
of The Irvine Ranch. We have
determined that the benefits of
excluding this subunit from the final
designation outweigh the benefits of
including it (see Exemptions and
Exclusions section below for a detailed
discussion of this exclusion).
Subunit 1B: Fairview Park
We are excluding Subunit 1B from
critical habitat because this area is part
of the Fairview Park Master Plan. We
have determined that the benefits of
excluding this subunit from the final
designation outweigh the benefits of
including it (see Exemptions and
Exclusions section below for a detailed
discussion of this exclusion).
Subunit 1C: Newport-Banning Ranch
We are designating subunit 1C as
critical habitat for the San Diego fairy
shrimp. Subunit 1C consists of 15 ac (6
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. It is located south of the Santa
Ana River, 2 mi (3 km) inland from the
coast. Subunit 1C consists of privately
owned land.
The vernal pool complex at NewportBanning Ranch is one of only five
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known vernal pool complexes
containing the San Diego fairy shrimp in
Orange County. This vernal pool
complex and the vernal pool complex at
Fairview Park (subunit 1B) represent the
only remaining examples of coastal
vernal pools in Orange County. Subunit
1C is closed to recreational use;
however, this area has been degraded by
past activities and may face future
impacts from the development of this
site and/or its watershed. The PCEs in
this critical habitat subunit may require
special management considerations or
protection to address threats from
development activities and nonnative
species that may negatively impact the
San Diego fairy shrimp, its PCEs, and its
habitat.
Subunit 1D: Chiquita Ridge
We are excluding Subunit 1D from
critical habitat because this area is part
of the Southern Subregion NCCP/HCP.
We have determined that the benefits of
excluding this subunit from the final
designation outweigh the benefits of
including it (see Exemptions and
Exclusions section below for a detailed
discussion of this exclusion).
Subunit 1E: Radio Tower Road
We are excluding Subunit 1E from
critical habitat because this area is part
of the Southern Subregion NCCP/HCP.
We have determined that the benefits of
excluding this subunit from the final
designation outweigh the benefits of
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including it (see Exemptions and
Exclusions section below for a detailed
discussion of this exclusion).
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Unit 2: San Diego, North Coastal Mesa
(6 ac (3 ha))
Unit 2 is located in San Diego County,
California. The area was occupied at the
time of listing and contains the features
we have identified as essential to the
conservation of the San Diego fairy
shrimp that may require special
management considerations or
protection. The vernal pool complexes
in this unit occur on Carlsbad gravelly
loam sand, Diablo clay, and Salinas
clay. As a result of coastal development,
most vernal pools supporting the San
Diego fairy shrimp on coastal terraces in
San Diego County have been lost. Unit
2 represents the largest collection of
vernal pools on coastal terraces that
remain in San Diego County. Given the
rarity of the San Diego fairy shrimp and
the limited amount of remaining vernal
pool habitat, this unit is essential to the
conservation of this species because of
the need to conserve vernal pools
throughout the range of the species.
This unit contains vernal pools that
support San Diego fairy shrimp
populations in the ‘‘Group B’’ genetic
clade (Bohonak 2007, p. 1). This unit is
also essential due to its role in
maintaining the genetic diversity and
population stability of the San Diego
fairy shrimp. For more information
about Unit 2 please see the proposed
rule (68 FR 19888; April 22, 2003).
We have determined that MCB Camp
Pendleton’s INRMP provides a benefit to
the San Diego fairy shrimp and therefore
MCB Camp Pendleton, including the
proposed subunits 2A–2F, is exempt
from the designation of critical habitat
pursuant to section 4(a)(3) of the Act
(see Summary of Changes From
Previously Designated Critical Habitat
and 2003 Proposed Rule and
Exemptions and Exclusions sections for
more information on this exemption).
Subunit 2G: Poinsettia Lane Commuter
Station
We are designating subunit 2G as
critical habitat for the San Diego fairy
shrimp. Subunit 2G consists of 6 ac (3
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. It is located in Carlsbad,
California, north of Poinsettia Lane, 0.25
mi (0.4 km) inland from the coast.
Subunit 2G consists of 4 ac (2 ha) of
public land owned by the North County
Transit District (NCTD) and 2 ac (1 ha)
of private land.
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Lands in this subunit owned by NCTD
are in a conservation easement managed
by CDFG. However, at this time
additional management measures, such
as monitoring of water quality and the
restoration of native vegetation around
the vernal pools, may be needed to
conserve the PCEs for San Diego fairy
shrimp. The PCEs in this critical habitat
subunit may also require special
management considerations or
protection to address threats from
altered hydrology and nonnative species
that may negatively impact the San
Diego fairy shrimp and its habitat.
Unit 3: San Diego, Inland Valley (725 ac
(292 ha))
Unit 3 contains vernal pool
complexes within the jurisdiction of the
City of San Marcos and the community
of Ramona. The area was occupied at
the time of listing and contains the
features essential to the conservation of
the San Diego fairy shrimp that may
require special management
considerations or protection for the San
Diego fairy shrimp. The vernal pool
complexes in unit 3 are associated with
alluvial or volcanic type soils and
include the only vernal pool complexes
known to occur on Placentia soils
(Service GIS database; soils described by
Bowman 1973, pp. 68–69). The vernal
pool complexes in San Marcos are
associated with a unique plant
association of multiple species of
Brodiaea (Armstrong 2007, pp. 11–16).
The recovery plan specifically identifies
these vernal pools as essential for the
recovery of the San Diego fairy shrimp.
This unit includes vernal pools within
the easternmost edge of the geographical
distribution of the species and at the
highest elevation where this species
occurs. This unit contains vernal pools
that support San Diego fairy shrimp
populations in the ‘‘Group B’’ genetic
clade (Bohonak 2004, pp. 3–9).
Conservation of vernal pools in this unit
will help maintain the diversity of
vernal pool habitats and their unique
geological substrates, and will retain the
genetic diversity of these geographically
distinct populations. For more
information about Unit 3 please see the
proposed rule (68 FR 19888; April 22,
2003).
Subunit 3A: San Marcos: Northeast
We are designating subunit 3A as
critical habitat for the San Diego fairy
shrimp. Subunit 3A consists of 17 ac (7
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 3A is located north of
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State Route 78, just south of Palomar
Community College, 8 mi (13 km)
inland from the coast. Subunit 3A
consists of 16 ac (6 ha) of privately
owned land and of 1 ac (<1 ha) of land
owned by a Special District.
This site has been proposed for
development, and it is likely that the
vernal pools within this subunit will be
directly or indirectly impacted by the
development. The PCEs within this
critical habitat subunit may require
special management considerations or
protection to address threats from
development, off-road vehicles, and
nonnative species that may negatively
impact the San Diego fairy shrimp and
its habitat.
Subunit 3C: San Marcos: Southwest
We are designating subunit 3C as
critical habitat for the San Diego fairy
shrimp. Subunit 3C consists of 63 ac (25
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 3C is located south of
State Route 78, to the north of San
Marcos Boulevard between South
Pacific Street and South Las Posas Road,
8 mi (13 km) inland from the coast.
Subunit 3C consists of 11 ac (4 ha) of
land owned by the City of San Marcos,
4 ac (2 ha) of land owned by the Water
District, and 48 ac (19 ha) of privately
owned land.
This site is currently not fenced and
the vernal pool habitat in this subunit
is subject to continuing impacts from
off-road vehicles and illegal dumping.
The PCEs in this critical habitat subunit
may require special management
considerations or protection to address
threats from development, off-road
vehicles, and nonnative species that
may negatively impact the San Diego
fairy shrimp and its habitat.
Subunit 3D: San Marcos: Southeast
We are designating subunit 3D as
critical habitat for the San Diego fairy
shrimp. Subunit 3D consists of 5 ac (2
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 3D is located south of
State Route 78, east of Linda Vista Drive
and west of Bent Avenue, 9 mi (14 km)
inland from the coast. Subunit 3C is
privately owned. The PCEs in this
critical habitat subunit may require
special management considerations or
protection to address threats from
altered hydrology and nonnative species
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Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
Subunit 3E.3: Ramona, Main Street
that may negatively impact the San
Diego fairy shrimp and its habitat.
Subunit 3E.1: Ramona Grasslands
We are designating subunit 3E.1 as
critical habitat for the San Diego fairy
shrimp. Subunit 3E.1 consists of 382 ac
(154 ha) of habitat occupied by the
species at the time of listing and the
species continues to occur within this
subunit. This subunit contains all of the
features essential to the conservation of
the species. Subunit 3E.1 is located in
the western portion of the Santa Maria
Valley, north of the Santa Maria Creek
and southwest of the Ramona Airport,
20 mi (32 km) inland from the coast.
Subunit 3E.1 consists of 1 ac (<1 ha)
land owned by the Water District and
381 ac (153 ha) of privately owned land.
Various conservation organizations
are in the process of acquiring land
within this subunit; however, not all of
the land is conserved at this point and
there is no long-term management plan
for the conservation of the San Diego
fairy shrimp and its vernal pool habitat.
The PCEs in this critical habitat subunit
may require special management
considerations or protection to address
threats from development, off-road
vehicles, altered hydrology, and
nonnative species that may negatively
impact the San Diego fairy shrimp and
its habitat.
mstockstill on PROD1PC66 with RULES2
Subunit 3E.2: Ramona Airport
We are designating subunit 3E.2 as
critical habitat for the San Diego fairy
shrimp. Subunit 3E.2 consists of 191 ac
(77 ha) of habitat occupied by the
species at the time of listing and the
species continues to occur within this
subunit. This subunit contains all of the
features essential to the conservation of
the species. Subunit 3E.2 is located in
the central portion of the Santa Maria
Valley, north of the Santa Maria Creek
and south of the Ramona Airport, 21 mi
(34 km) inland from the coast. Subunit
3E.2 consists of 67 ac (27 ha) public
land owned by the County of San Diego
and 124 ac (50 ha) of privately owned
land.
Various conservation organizations
are in the process of acquiring land
within this subunit; however, not all of
the land is conserved at this point and
there is no long-term management plan
for the conservation of the San Diego
fairy shrimp. The PCEs in this critical
habitat subunit may require special
management considerations or
protection to address threats from
development, off-road vehicles, altered
hydrology, and nonnative species that
may negatively impact the San Diego
fairy shrimp and its habitat.
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We are designating subunit 3E.3 as
critical habitat for the San Diego fairy
shrimp. Subunit 3E.3 consists of 27 ac
(11 ha) of habitat occupied by the
species at the time of listing and the
species continues to occur within this
subunit. This subunit contains all of the
features essential to the conservation of
the species. Subunit 3E.3 is located
along Main Street in Ramona, 23 mi (37
km) inland from the coast. Subunit 3E.3
consists of 1 ac (<1 ha) of land owned
by the County of San Diego and 26 ac
(10 ha) of private land.
This site is privately owned and
subject to potential development. In
addition, the site is currently not fenced
and its vernal pool habitat is subject to
continuing impacts from off-road
vehicles. The PCEs in this critical
habitat subunit may require special
management considerations or
protection to address threats from
development, off-road vehicles, altered
hydrology, and nonnative species that
may negatively impact the San Diego
fairy shrimp and its habitat.
Subunit 3E.4: Ramona High School
We are designating subunit 3E.4 as
critical habitat for the San Diego fairy
shrimp. Subunit 3E.4 consists of 40 ac
(16 ha) of habitat occupied by the
species at the time of listing and the
species continues to occur within this
subunit. This subunit contains all of the
features essential to the conservation of
the species. Subunit 3E.4 is located east
of State Route 67, 24 mi (39 km) inland
from the coast. Subunit 3E.4 consists of
35 ac (14 ha) of land owned by the
Ramona Unified School District and 5
ac (2 ha) of privately owned land. The
PCEs in this critical habitat subunit may
require special management
considerations or protection to address
current development threats, and
impacts from off-road vehicles, altered
hydrology, and nonnative species that
may negatively impact the San Diego
fairy shrimp and its habitat.
Unit 4: San Diego, Central Coastal
Mesas (551 ac (225 ha))
Unit 4 is located in San Diego County,
California. The area was occupied at the
time of listing and contains the features
essential to the conservation of the San
Diego fairy shrimp. These features may
require special management
considerations or protection due to
threats from development, illegal trash
dumping, OHV activity, and nonnative
plant species. The occurrences of San
Diego fairy shrimp in Unit 4 are
associated with coastal terraces and
mesas found south of the San Dieguito
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70671
River to the Sweetwater River. While
many of the vernal pool complexes in
this unit have been destroyed or
fragmented, the complexes being
designated represent some of the best
remaining vernal pools in San Diego
County. Many of the vernal pools in this
unit receive conservation protection by
virtue of their land ownership; however,
they may require additional
management to maintain populations of
San Diego fairy shrimp. This unit
contains vernal pools that support San
Diego fairy shrimp populations in both
the ‘‘Group A’’ and ‘‘Group B’’ genetic
clade (Bohonak 2004, pp. 3–9). This
unit includes vernal pools that are
within the center of this species’
geographical distribution and retains the
genetic diversity of these geographically
distinct populations. For more
information about Unit 4 please see the
proposed rule (68 FR 19888; April 22,
2003).
We have determined that MCAS
Miramar’s INRMP provides a benefit to
the San Diego fairy shrimp and,
therefore, MCAS Miramar is exempt
from the designation pursuant to section
4(a)(3) of the Act (see Exemptions and
Exclusions section below for a detailed
discussion of this exemption).
Subunit 4A/B: Del Mar Mesa
We are designating subunit 4A/B as
critical habitat for the San Diego fairy
shrimp. Subunit 4A/B consists of 252 ac
(102 ha) of habitat occupied by the
species at the time of listing and the
species continues to occur within this
subunit. This subunit contains all of the
features essential to the conservation of
the species. Subunit 4A/B is located
south of State Route 56 and north of Los
˜
Penasquitos Canyon, 6 mi (10 km)
inland from the coast. Subunit 4A/B
consists 51 ac (21 ha) land owned by the
City of San Diego, 5 ac (2 ha) land
owned by the County of San Diego, 56
ac (23 ha) land owned by the State of
California, 41 ac (16 ha) land owned by
the Service, and 99 ac (40 ha) is
privately owned land.
The PCEs in this critical habitat
subunit may require special
management considerations or
protection to address threats from
development, off-road vehicles, altered
hydrology, and nonnative species that
may negatively impact the San Diego
fairy shrimp and its habitat.
Subunit 4C: Murphy Canyon Navy
Housing
We are designating subunit 4C as
critical habitat for the San Diego fairy
shrimp. Subunit 4C consists of 41 ac (17
ha) of habitat occupied by the species at
the time of listing and the species
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Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 4C is located northeast
of the junction of Interstate 8 and
Interstate 15, 10 mi (16 km) inland from
the coast. Subunit 4C consists of 40 ac
(16 ha) of DOD land and 1 ac (<1 ha)
of public land owned by the City of San
Diego.
As a result of two section 7
consultations (Service 2002; Service
2003), the vernal pool habitat in this
subunit and in subunit 4D were restored
to offset project impacts. The Navy has
completed a 5-year monitoring and
management period as described in the
section 7 consultations and is now
seeking funds for a long-term
management plan for this area (Jacobsen
2007, p. 1). However, at this time
additional management measures may
be needed for the conservation of San
Diego fairy shrimp. The PCEs in this
subunit may require special
management considerations or
protection to address on-going threats
from recreational activities, illegal
dumping, and nonnative species that
may negatively impact the San Diego
fairy shrimp and its habitat.
mstockstill on PROD1PC66 with RULES2
Subunit 4D: Chollas Heights Navy
Housing
We are designating subunit 4D as
critical habitat for the San Diego fairy
shrimp. Subunit 4D consists of 16 ac (7
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 4D is located north of
State Route 94 and north Chollas
Reservoir, 8 mi (13 km) inland from the
coast. Subunit 4D consists entirely of
DOD land.
As a result of two section 7
consultations (Service 2002; Service
2003), the vernal pool habitat in this
subunit and in subunit 4C were restored
to offset project impacts. The Navy has
completed a 5-year monitoring and
management period as described in the
section 7 consultations and is now
seeking funds for a long-term
management plan for this area (Jacobsen
2007, p. 1). However, at this time
additional management measures may
be needed for the conservation of San
Diego fairy shrimp. The PCEs in this
subunit may require special
management considerations or
protection to address on-going threats
from nonnative species that may
negatively impact the San Diego fairy
shrimp and its habitat.
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Subunit 4E: Carmel Mountain, West
We are designating subunit 4E as
critical habitat for the San Diego fairy
shrimp. Subunit 4E consists of 32 ac (13
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 4E is located south of
State Route 56 and north of Los
˜
Penasquitos Canyon, 3 mi (5 km) inland
from the coast. Subunit 4E consists of 31
ac (13 ha) of public land owned by the
City of San Diego and 1 ac (<1 ha) of
privately owned land.
The PCEs in this critical habitat
subunit may require special
management considerations or
protection to address threats from offroad vehicles, altered hydrology, and
nonnative species that may negatively
impact the San Diego fairy shrimp and
its habitat.
Subunit 4F: Carmel Mountain, East
We are designating subunit 4F as
critical habitat for the San Diego fairy
shrimp. Subunit 4F consists of 4 ac (2
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. It is located south of State
˜
Route 56 and north of Los Penasquitos
Canyon, 3 mi (5 km) inland from the
coast. Subunit 4F consists entirely of
public land owned by the City of San
Diego.
The PCEs in this critical habitat
subunit may require special
management considerations or
protection to address threats from offroad vehicles, altered hydrology, and
nonnative species that may negatively
impact the San Diego fairy shrimp and
its habitat.
Subunit 4G: Tierra Alta
We are designating subunit 4G as
critical habitat for the San Diego fairy
shrimp. Subunit 4G consists of 5 ac (2
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 4G is located north of
Calle Cristobal and south of Los
˜
Penasquitos Canyon, 6 mi (10 km)
inland from the coast. Subunit 4G
consists of 2 ac (1 ha) of public land
owned by the City of San Diego and 3
ac (1 ha) of privately owned land.
The private land in subunit 4G is
conserved and maintained by the Tierra
Alta Home Owner’s Association. This
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subunit is considered to be in the same
complex and series as the Lopez Ridge
vernal pools to the south (subunit 4H).
However, at this time additional
management measures may be needed
for the conservation of San Diego fairy
shrimp. The PCEs in this subunit may
require special management
considerations or protection to address
on-going threats from recreational
activities and illegal dumping that may
negatively impact the San Diego fairy
shrimp and its habitat.
Subunit 4H: Lopez Ridge
We are designating subunit 4H as
critical habitat for the San Diego fairy
shrimp. Subunit 4H consists of 11 ac (4
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 4H is located north of
Calle Cristobal and south of Los
˜
Penasquitos Canyon, 6 mi (10 km)
inland from the coast. Subunit 4H
consists of 7 ac (3 ha) of public land
owned by the City of San Diego and 4
ac (2 ha) of privately owned land.
The private portion of this subunit is
zoned for single family residential and
it is vulnerable to impacts associated
with development. The publicly owned
portion of this critical habitat unit is
preserved as a mitigation site as a
condition of a Service Biological
Opinion (1–1–83–F–29R (Service
1983)). However, at this time additional
management measures may be needed
for the conservation of San Diego fairy
shrimp. The PCEs in this critical habitat
subunit may require special
management considerations or
protection to address threats from
development, off-road vehicles, altered
hydrology, and nonnative species that
may negatively impact the San Diego
fairy shrimp and its habitat.
Subunit 4I: Winterwood
We are designating subunit 4I as
critical habitat for the San Diego fairy
shrimp. Subunit 4I consists of 17 ac (7
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 4I is located to the
south of Challenger Middle School in
Mira Mesa, 6 mi (10 km) inland from the
coast. Subunit 4I consists entirely of
public land owned by the City of San
Diego.
This area is currently owned and
managed by the City of San Diego Parks
and Recreation Department. The subunit
is partially conserved as mitigation as a
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result of U.S. Environmental Protection
Agency compliance order CWA 404–
09a–94–005 (see RECON 1996 for
additional information). However, at
this time additional management
measures may be needed for the
conservation of San Diego fairy shrimp.
The PCEs in this subunit may require
special management considerations or
protection to address threats from
recreational activities, nonnative weed
invasion, illegal dumping, and off-road
vehicle use that may negatively impact
the San Diego fairy shrimp and its
habitat.
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Subunit 4J: Carroll Canyon
We are designating subunit 4J as
critical habitat for the San Diego fairy
shrimp. Subunit 4J consists of 14 ac (6
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 4J is located at the
southern terminus of Parkdale Avenue
in Mira Mesa, 6 mi (10 km) inland from
the coast. Subunit 4J consists of 14 ac
(6 ha) of public land owned by the City
of San Diego and 1 ac (<1 ha) of
privately owned land.
A portion of this subunit was
conserved as mitigation pursuant to the
requirements of the Service Biological
Opinions 1–1–82–F–108 (Service 1982a)
and 1–1–82–F–108R (Service 1982b).
An additional area within this subunit
was purchased by the City of San Diego
with money from the City of San Diego’s
Vernal Pool Preservation Fund. The site
has been maintained per the
requirements of Service Biological
Opinions 1–1–82–F–108 and 1–1–82–F–
108R, and the City of San Diego’s Vernal
Pool Management Plan (City of San
Diego 1996). However, at this time
additional management measures may
be needed for the conservation of San
Diego fairy shrimp. The PCEs in this
subunit may require special
management considerations or
protection to address threats from ongoing recreational activities and illegal
dumping that may negatively impact the
San Diego fairy shrimp and its habitat.
Subunit 4K: San Diego Energy Recovery
(SANDER) and Magnatron
We are designating subunit 4K as
critical habitat for the San Diego fairy
shrimp. Subunit 4K consists of 56 ac (23
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 4K is located to the
west of the intersection of Magnatron
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Boulevard and State Route 163 and
south of State Route 52, 7 mi (11 km)
inland from the coast. Subunit 4K
consists of 55 ac (22 ha) of public land
owned by the City of San Diego and 1
ac (<1 ha) of privately owned land.
Subunit 4K has an ‘‘Industrial Parks’’
zoning designation and is not currently
conserved or being managed for the San
Diego fairy shrimp or its habitat. The
PCEs in subunit may require special
management considerations or
protection to address on-going threats
from development, recreational
activities, nonnative weed invasion,
illegal dumping, and off-road vehicle
use that may negatively impact the San
Diego fairy shrimp and its habitat.
Subunit 4L: Cubic
We are designating subunit 4L as
critical habitat for the San Diego fairy
shrimp. Subunit 4L consists of 7 ac (3
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 4L is located between
State Route 52 and State Route 163 at
the northeastern terminus of Kearny
Mesa Road in Kearny Mesa, 8 mi (13
km) inland from the coast. Subunit 4L
consists of privately owned land.
Subunit 4L has an ‘‘Industrial Parks’’
zoning designation and is not conserved
or being managed to protect the San
Diego fairy shrimp or its habitat. The
PCEs within this subunit may require
special management considerations or
protection to address on-going threats
from development, recreational
activities, nonnative weed invasion,
illegal trash dumping, and off-road
vehicle use that may negatively impact
the San Diego fairy shrimp and its
habitat.
Subunit 4M: Montgomery Field
We are designating subunit 4M as
critical habitat for the San Diego fairy
shrimp. Subunit 4M consists of 96 ac
(39 ha) of habitat occupied by the
species at the time of listing and the
species continues to occur within this
subunit. This subunit contains all of the
features essential to the conservation of
the species. Subunit 4M is located north
of Aero Drive in Kearny Mesa, 7 mi (11
km) inland from the coast. Subunit 4M
is owned and managed by the City of
San Diego, Airports Division.
The vernal pool complexes within
subunit 4M are managed according to
the Service Biological Opinion 1–6–94–
F–32 (Service 1995, pp. 1–33), the
Montgomery Field Final Conceptual
Mitigation Plan (P&D Technologies
1994), and the Vernal Pool Management
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70673
Plan (City of San Diego 1996). The PCEs
in this subunit may require special
management considerations or
protection to address threats from
development, on-going operational
management for the airport, and
nonnative weed invasion that may
negatively impact the San Diego fairy
shrimp and its habitat.
Unit 5: San Diego, Southern Coastal
Mesa (1,785 ac (722 ha))
Unit 5 is located in San Diego County,
California. The area was occupied at the
time of listing and contains the features
essential to the conservation of the San
Diego fairy shrimp that may require
special management considerations or
protection. This southernmost unit of
critical habitat is essential to the
conservation of the San Diego fairy
shrimp because it helps to maintain the
ecological distribution and genetic
diversity of the species. Due to the rapid
urbanization on both sides of the border
between the U.S. and Mexico, nearly all
vernal pool habitat in this region has
been lost. This unit contains vernal
pools that support San Diego fairy
shrimp populations in the ‘‘Group A’’
genetic clade (Bohonak 2004, pp. 3–9).
The conservation of the remaining
vernal pools in this unit is essential to
maintain continuity in the range
between the U.S. and Mexico as well as
the genetic diversity of the species. For
more information about Unit 5 please
see the proposed rule (68 FR 19888;
April 22, 2003).
We have determined that the INRMP
for Naval Base Coronado, which
includes the Navy Outlying Landing
Field and Naval Radar Receiving
Facility, provides a benefit to the San
Diego fairy shrimp and therefore
Department of Defense lands that are
part of Naval Base Coronado’s INRMP
are exempt from critical habitat
pursuant to section 4(a)(3) of the Act
(see Exemptions and Exclusions section
below for a detailed discussion of this
exemption).
Subunit 5A: Otay Mesa, Northeast
We are designating subunit 5A as
critical habitat for the San Diego fairy
shrimp. Subunit 5A consists of 38 ac (16
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 5A is located south of
Otay River at the base of Otay Mountain,
12 mi (19 km) inland from the coast.
Subunit 5A consists of 8 ac (3 ha) land
owned by the County of San Diego, 16
ac (7 ha) land owned by the State of
California, 1 ac (<1 ha) land owned by
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the Water District, and 13 ac (5 ha)
privately owned land.
We have excluded land covered by
the County of San Diego subarea plan
under the MSCP in this subunit because
we have determined that the benefits of
exclusion outweigh the benefits of
inclusion (see Exemptions and
Exclusions section below for a detailed
discussion of this exclusion). However,
lands within Major/Minor Amendment
Areas in this subunit are not covered by
the County of San Diego subarea plan
under the MSCP. These areas contain
sensitive resources that were not
addressed during the development of
the County of San Diego subarea plan
under the MSCP and are to be addressed
in a future amendment to the MSCP. We
are designating all lands in subunit 5A
that are not covered by the County of
San Diego subarea plan under the
MSCP, including these future
amendment areas. The PCEs in this
subunit may require special
management considerations or
protection to address threats from
development, off-road vehicle use, and
nonnative weed invasion that may
negatively impact the San Diego fairy
shrimp and its habitat.
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Subunit 5B: Otay Mesa, North
We are designating 304 ac (123 ha) of
subunit 5B as critical habitat for the San
Diego fairy shrimp. Subunit 5B consists
of habitat occupied by the species at the
time of listing and the species continues
to occur within this subunit. This
subunit contains all of the features
essential to the conservation of the
species. Subunit 5B is located central
Otay Mesa, north of Otay Mesa Road,
east of Brown Field, 9 mi (15 km) inland
from the coast. Subunit 5B consists of
privately owned land. The PCEs in this
subunit may require special
management considerations or
protection to address threats from
development, off-road vehicle use, and
nonnative weed invasion that may
negatively impact the San Diego fairy
shrimp and its habitat.
We have excluded land covered by
the County of San Diego subarea plan
under the MSCP in this subunit because
we have determined that the benefits of
excluding this subunit from the final
designation outweigh the benefits of
including it (see Exemptions and
Exclusions section below for a detailed
discussion of this exclusion).
Subunit 5C: Otay Mesa, East
We are designating subunit 5C as
critical habitat for the San Diego fairy
shrimp. Subunit 5C consists of 75 ac (30
ha) of habitat occupied by the species at
the time of listing and the species
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continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 5C is located on
eastern Otay Mesa, northeast of Otay
Mesa Road, 12 mi (19 km) inland from
the coast. Subunit 5C consists of
privately owned land.
This vernal pool complex has had
relatively little human disturbance
compared to most vernal pool
complexes on Otay Mesa. However, the
PCEs in this subunit may require special
management considerations or
protection to address threats from
development, off-road vehicle use, and
nonnative weed invasion that may
negatively impact the San Diego fairy
shrimp and its habitat.
Subunit 5D: Otay Mesa, Southeast
We are designating subunit 5D as
critical habitat for the San Diego fairy
shrimp. Subunit 5D consists of 391 ac
(158 ha) of habitat occupied by the
species at the time of listing and the
species continues to occur within this
subunit. This subunit contains all of the
features essential to the conservation of
the species. Subunit 5D is located north
of the United States/Mexico border, at
the base of Otay Mountain, 13 mi (21
km) inland from the coast. Subunit 5D
consists entirely of privately owned
land.
The vernal pool complexes in this
unit have not yet been directly impacted
by development or fragmentation. The
populations of San Diego fairy shrimp
in this subunit are the closest United
States population to any of the
populations of San Diego fairy shrimp
in Mexico. As vernal pool complexes
become more fragmented by
development in both the United States
and Mexico, the preservation of vernal
pool complexes near to one another will
be increasingly important to these
ecosystems to provide continuity in the
range between the United States and
Mexico. The PCEs in this subunit may
require special management
considerations or protection to address
on-going threats from development, offroad vehicle use, and nonnative weed
invasion that may negatively impact the
San Diego fairy shrimp and its habitat.
Subunit 5F: Otay Mesa, Southwest
We are designating subunit 5F as
critical habitat for the San Diego fairy
shrimp. Subunit 5F consists of 621 ac
(251 ha) of habitat occupied by the
species at the time of listing and the
species continues to occur within this
subunit. This subunit contains all of the
features essential to the conservation of
the species. Subunit 5F is located south
of Otay Mesa Road and north of the
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United States/Mexico border on the
western portion of Otay Mesa, 7 mi (11
km) inland from the coast. Subunit 5F
consists of 11ac (4 ha) of land owned by
the U.S. Government, 73 ac (30 ha) of
land owned by the City of San Diego,
and 537 ac (217 ha) of privately owned
land.
Some of the land within this subunit
has been purchased for conservation;
however, these areas may require
measures to ensure that the San Diego
fairy shrimp is conserved on these
lands. Additionally, there are lands in
this subunit that are privately owned
and may be partially developed.
Conservation measures may be required
in these areas to ensure that the
structure and function of the vernal pool
habitat for San Diego fairy shrimp is not
altered and that the PCEs are protected.
The PCEs in this subunit may require
special management considerations or
protection to address threats from
development, off-road vehicle use, and
nonnative weed invasion that may
negatively impact the San Diego fairy
shrimp and its habitat.
We are excluding DHS-owned land at
Arnie’s Point (29 ac (12 ha)) from this
subunit because we have determined
that the benefits of exclusion outweigh
the benefits of inclusion (see
Exemptions and Exclusions section
below for a detailed discussion of this
exclusion).
Subunit 5G: Otay Mesa, Northwest
We are designating subunit 5G as
critical habitat for the San Diego fairy
shrimp. Subunit 5G consists of 132 ac
(53 ha) of habitat occupied by the
species at the time of listing and the
species continues to occur within this
subunit. This subunit contains all of the
features essential to the conservation of
the species. Subunit 5G is located north
of Otay Mesa Road on the mesa tops
around Dennery Canyon, 7 mi (11 km)
inland from the coast. Subunit 5G
consists of public and private land.
Subunit 5G consists of 19 ac (7 ha) of
land owned by the City of San Diego
and 113 ac (46 ha) of privately owned
land.
Subunit 5G includes a number of
vernal pool complexes. Most of the
vernal pool complexes in this unit have
been purchased for conservation;
however, some of the unprotected areas
may be impacted by development. In
addition to the threats posed by
development to PCEs in some portions
of the subunit, the PCEs throughout the
subunit may require special
management considerations or
protection to address threats from offroad vehicle use, and nonnative weed
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invasion that may negatively impact the
San Diego fairy shrimp and its habitat.
Subunit 5H: Lower Otay Reservoir
We are designating subunit 5H as
critical habitat for the San Diego fairy
shrimp. Subunit 5H consists of 200 ac
(81 ha) of habitat occupied by the
species at the time of listing and the
species continues to occur within this
subunit. This subunit contains all of the
features essential to the conservation of
the species. The portion of subunit 5H
being designated as critical habitat is
located on the south side of Lower Otay
Reservoir, 15 mi (24 km) inland from
the coast. Subunit 5H is entirely public
land owned by the City of San Diego.
We have excluded all of the land
covered by the County of San Diego
subarea plan under the MSCP in this
subunit because we have determined
that the benefits of excluding this
subunit from the final designation
outweigh the benefits of including it
(see Exemptions and Exclusions section
below for a detailed discussion of this
exclusion).
Remaining vernal pool complexes in
this subunit are isolated from urbanized
areas of San Diego and this subunit may
be one of the few places where indirect
effects from development have not
placed stress on the population of San
Diego fairy shrimp. However, the PCEs
in this subunit may require special
management considerations or
protection to address threats from offroad vehicles and nonnative weed
invasion that may negatively impact the
San Diego fairy shrimp and its habitat.
mstockstill on PROD1PC66 with RULES2
invasion that may negatively impact the
San Diego fairy shrimp and its habitat.
Effects of Critical Habitat Designation
Subunit 5I: Marron Valley
We are designating subunit 5I as
critical habitat for the San Diego fairy
shrimp. Subunit 5I consists of 24 ac (10
ha) of habitat occupied by the species at
the time of listing and the species
continues to occur within this subunit.
This subunit contains all of the features
essential to the conservation of the
species. Subunit 5I is located
approximately 25 mi (40 km) east of the
coast along the United States/Mexico
border. Subunit 5I is entirely public
land owned by the City of San Diego.
This area is isolated from urbanized
areas of San Diego and may be one of
the few places where indirect effects
from development have not placed
stress on the population of San Diego
fairy shrimp. Subunit 5I is within the
Marron Valley Conservation Bank,
which is included in the MSCP
Cornerstone Bank Agreement. The PCEs
in this subunit may require special
management considerations or
protection to address threats from offroad vehicles use and nonnative weed
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Section 7 Consultation
Section 7(a)(2) of the Act requires
Federal agencies, including the Service,
to ensure that actions they fund,
authorize, or carry out are not likely to
destroy or adversely modify critical
habitat. Decisions by the 5th and 9th
Circuit Court of Appeals have
invalidated our definition of
‘‘destruction or adverse modification’’
(50 CFR 402.02) (see Gifford Pinchot
Task Force v. U.S. Fish and Wildlife
Service, 378 F. 3d 1059 (9th Cir 2004)
and Sierra Club v. U.S. Fish and
Wildlife Service et al., 245 F.3d 434,
442F (5th Cir 2001)), and we do not rely
on this regulatory definition when
analyzing whether an action is likely to
destroy or adversely modify critical
habitat. Under the statutory provisions
of the Act, we determine destruction or
adverse modification on the basis of
whether, with implementation of the
proposed Federal action, the affected
critical habitat would remain functional
(or retain the current ability for the PCEs
to be functionally established) to serve
its intended conservation role for the
species.
Section 7(a)(4) of the Act requires
Federal agencies to confer with the
Service on any action that is likely to
jeopardize the continued existence of a
species proposed for listing or result in
destruction or adverse modification of
proposed critical habitat. This is a
procedural requirement only, as any
conservation recommendations in a
conference report or opinion are strictly
advisory. However, once a species
proposed for listing becomes listed, or
proposed critical habitat is designated
as final, the full prohibitions of section
7(a)(2) apply to any discretionary
Federal action. The primary utility of
the conference procedures is to allow a
Federal agency to maximize its
opportunity to adequately consider
species proposed for listing and
proposed critical habitat and to avoid
potential delays in implementing their
proposed action because of the section
7(a)(2) compliance process, if we list
those species or designate critical
habitat.
Under conference procedures, we may
provide advisory conservation
recommendations to assist the agency in
eliminating conflicts that may be caused
by the proposed action. We may
conduct conferences either informally
or formally. Informal conferences are
typically used if the proposed action is
not likely to have any adverse effects to
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70675
the species proposed for listing or
proposed critical habitat. Formal
conferences are typically used when the
Federal agency or the Service believes
the proposed action is likely to cause
adverse effects to species proposed for
listing or critical habitat, inclusive of
those that may cause jeopardy or
adverse modification.
We generally provide the results of an
informal conference in a conference
report, while we provide the results of
a formal conference in a conference
opinion. Conference opinions on
proposed species or critical habitat are
typically prepared according to 50 CFR
402.14, as if the proposed species were
already listed or the proposed critical
habitat was already designated. We may
adopt the conference opinion as the
biological opinion when the species is
listed or the critical habitat is
designated, if no substantial new
information or changes in the action
alter the content of the opinion (see 50
CFR 402.10(d)).
If a species is listed or critical habitat
is designated, section 7(a)(2) of the Act
requires Federal agencies to ensure that
activities they authorize, fund, or carry
out are not likely to jeopardize the
continued existence of the species or to
destroy or adversely modify its critical
habitat. If a Federal action may affect a
listed species or its critical habitat, the
responsible Federal agency (action
agency) must enter into consultation
with us. As a result of this consultation,
we document compliance with the
requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal
actions that may affect, but are not
likely to adversely affect, listed species
or critical habitat; or
(2) A biological opinion for Federal
actions that may affect, and are likely to
adversely affect, listed species or critical
habitat.
When we issue a biological opinion
concluding that a project is likely to
jeopardize the continued existence of a
listed species or destroy or adversely
modify critical habitat, we also provide
reasonable and prudent alternatives to
the project, if any are identifiable. We
define ‘‘Reasonable and prudent
alternatives’’ at 50 CFR 402.02 as
alternative actions identified during
consultation that:
• Can be implemented in a manner
consistent with the intended purpose of
the action,
• Can be implemented consistent
with the scope of the Federal agency’s
legal authority and jurisdiction,
• Are economically and
technologically feasible, and
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• Would, in the Director’s opinion,
avoid jeopardizing the continued
existence of the listed species or
destroying or adversely modifying
critical habitat.
Reasonable and prudent alternatives can
vary from slight project modifications to
extensive redesign or relocation of the
project. Costs associated with
implementing a reasonable and prudent
alternative are similarly variable.
Regulations at 50 CFR 402.16 require
Federal agencies to reinitiate
consultation on previously reviewed
actions in instances where we have
listed a new species or subsequently
designated critical habitat that may be
affected and the Federal agency has
retained discretionary involvement or
control over the action (or the agency’s
discretionary involvement or control is
authorized by law). Consequently,
Federal agencies may sometimes need to
request reinitiation of consultation with
us on actions for which formal
consultation has been completed, if
those actions with discretionary
involvement or control may affect
subsequently listed species or
designated critical habitat.
Federal activities that may affect San
Diego fairy shrimp or its designated
critical habitat require consultation
under section 7 of the Act. Activities on
State, Tribal, local, or private lands
requiring a Federal permit (such as a
permit from the U.S. Army Corps of
Engineers under section 404 of the
Clean Water Act (33 U.S.C. 1251 et seq.)
or a permit from us under section 10 of
the Act or involving some other Federal
action (such as funding from the Federal
Highway Administration, Federal
Aviation Administration, or the Federal
Emergency Management Agency) are
also subject to the section 7(a)(2)
consultation process. Federal actions
not affecting listed species or critical
habitat, and actions on State, Tribal,
local, or private lands that are not
federally funded, authorized, or
permitted, do not require section 7(a)(2)
consultations.
Application of the ‘‘Adverse
Modification’’ Standard
The key factor related to the adverse
modification determination is whether,
with implementation of the proposed
Federal action, the affected critical
habitat would continue to serve its
intended conservation role for the
species, or would retain its current
ability for the primary constituent
elements to be functionally established.
Activities that may destroy or adversely
modify critical habitat are those that
alter the PCEs to an extent that
appreciably reduces the conservation
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value of critical habitat for San Diego
fairy shrimp. Generally, the
conservation role of San Diego fairy
shrimp critical habitat units is to
support viable core area populations.
Section 4(b)(8) of the Act requires us
to briefly evaluate and describe, in any
proposed or final regulation that
designates critical habitat, activities
involving a Federal action that may
destroy or adversely modify such
habitat, or that may be affected by such
designation.
Activities that, when carried out,
funded, or authorized by a Federal
agency, may affect critical habitat and
therefore should result in consultation
for San Diego fairy shrimp include, but
are not limited to:
(1) Actions that would permanently
reduce or increase: the depth of a vernal
pool; the ponding duration and
inundation of the vernal pool; or other
vernal pool features beyond the
tolerances of the San Diego fairy shrimp
(PCE 1). Actions that could permanently
alter the features in the vernal pool
basin that the San Diego fairy shrimp
requires include, but are not limited to:
discharge of dredged or fill material into
vernal pools; erosion of sediments from
fill material; the introduction of water,
other liquids, or chemicals (including
herbicides and pesticides) into the
vernal pool basin; the disturbance of
soil profile by grading, digging or other
earthmoving work in and around the
vernal pool basin; and/or other activities
such as off-road vehicle use, heavy foot
traffic, grazing, vegetation removal, or
road construction within the watershed
for the vernal pools.
(2) Actions that impact the watershed
and the local hydrology of a vernal pool
complex (PCE 2). These actions could
increase or decrease the amount of
water that comes into a vernal pool
complex (PCE 2). These actions could
also change the timing or amount of
water that flows into a vernal pool
complex and alter the timing, duration,
and amount of water in the vernal pool
basins (PCE 1). Actions that could alter
the hydrology of a vernal pool complex
include, but are not limited to: the
creation of impervious surfaces around
a vernal pool complex; channeling
water runoff into a vernal pool complex;
the use of artificial irrigation near a
vernal pool complex; cut and fill work
in or adjacent to the vernal pool
watersheds that disrupts the surface and
subsurface water flow; creating
structures that limit the amount of
natural water runoff into a vernal pool
complex; and/or grading, digging or
other earthmoving work in and around
the vernal pool watershed.
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(3) Actions that would permanently
alter the function of the underlying
claypan or hardpan soil layer (PCE 3) to
hold and retain water in the vernal pool
basin (PCE 1). Damage to the claypan or
hardpan layer could impact the
hydrology of a vernal pool complex and
disrupt the ability of the vernal pools in
the complex to fill with water or to hold
water (PCE 1). Actions that disturb the
claypan or hardpan layer can also
impact the flow of water at the surface
and subsurface level so that the vernal
pool watershed is impacted and the
amount of water following into or out of
a vernal pool complex is altered (PCE 3).
Actions that could permanently alter the
function of the underlying claypan or
hardpan soil layer (PCE 3) include, but
are not limited to: grading or
earthmoving work that disrupts or rips
into the claypan or hardpan soil layer;
cut and fill work that disrupts the
surface or subsurface water flow by
disrupting the claypan or hardpan soil
layer; digging, trenching, mining, and/or
drilling into the claypan or hardpan soil
layer; and/or construction activities that
create cut slopes, which disrupt the
claypan or hardpan soil layer.
We consider all of the units
designated as critical habitat, as well as
those that have been excluded or
exempt, to contain features essential to
the conservation of the San Diego fairy
shrimp. All units are within the
geographical area occupied by the
species at the time of listing and are
likely to be used by the San Diego fairy
shrimp. Federal agencies already
consult with us on activities in areas
currently occupied by the San Diego
fairy shrimp, or if the species may be
affected by the action, to ensure that
their actions do not jeopardize the
continued existence of the San Diego
fairy shrimp.
Application of Section 4(a)(3) and
Exclusions Under Section 4(b)(2) of the
Act
Section 4(a)(3)
The Sikes Act Improvement Act of
1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that
includes land and water suitable for the
conservation and management of
natural resources to complete an
integrated natural resource management
plan (INRMP) by November 17, 2001.
An INRMP integrates implementation of
the military mission of the installation
with stewardship of the natural
resources found on the base. Each
INRMP includes:
• An assessment of the ecological
needs on the installation, including the
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need to provide for the conservation of
listed species;
• A statement of goals and priorities;
• A detailed description of
management actions to be implemented
to provide for these ecological needs;
and
• A monitoring and adaptive
management plan.
Among other things, each INRMP must,
to the extent appropriate and applicable,
provide for fish and wildlife
management; fish and wildlife habitat
enhancement or modification; wetland
protection, enhancement, and
restoration where necessary to support
fish and wildlife; and enforcement of
applicable natural resource laws.
The National Defense Authorization
Act for Fiscal Year 2004 (Pub. L. 108–
136) amended the Act to limit areas
eligible for designation as critical
habitat. Specifically, section 4(a)(3)(B)(i)
of the Act (16 U.S.C. 1533(a)(3)(B)(i))
now provides: ‘‘The Secretary shall not
designate as critical habitat any lands or
other geographical areas owned or
controlled by the Department of
Defense, or designated for its use, that
are subject to an integrated natural
resources management plan prepared
under section 101 of the Sikes Act (16
U.S.C. 670a), if the Secretary determines
in writing that such plan provides a
benefit to the species for which critical
habitat is proposed for designation.’’
We consult with the military on the
development and implementation of
INRMPs for installations with listed
species. We analyzed INRMPs
developed by military installations
located within the range of the proposed
critical habitat designation for San
Diego fairy shrimp to determine if they
are exempt under section 4(a)(3) of the
Act.
Approved INRMPs
In the April 22, 2003, proposed rule
(68 FR 19888), we considered but did
not propose as critical habitat lands on
MCAS Miramar and U.S. Navy’s NRRF
under Naval Base Coronado under
sections 3(5)(A) and 4(b)(2) of the Act,
based on the benefits provided by their
completed INRMPs. We also considered,
but did not propose, mission-essential
training areas on MCB Camp Pendleton
under section 4(b)(2) of the Act for
national security reasons. However,
non-training areas on MCB Camp
Pendleton were included in the 2003
proposed critical habitat designation.
Following the publication of the
proposed rule, the Act was amended to
include section 4(a)(3)(B)(i). As stated
above, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides:
‘‘The Secretary shall not designate as
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critical habitat any lands or other
geographical areas owned or controlled
by the Department of Defense, or
designated for its use, that are subject to
an integrated natural resources
management plan prepared under
section 101 of the Sikes Act (16 U.S.C.
670a), if the Secretary determines in
writing that such plan provides a benefit
to the species for which critical habitat
is proposed for designation.’’ The
INRMPs for MCAS Miramar, MCB Camp
Pendleton, NRRF, and NOLF include
measures that benefit the San Diego
fairy shrimp (a brief discussion of the
benefits of each INRMP follows below).
Therefore, under Section 4(a)(3)(B)(i) of
the Act, we are exempting lands on
MCAS Miramar, MCB Camp Pendleton,
NRRF, or NOLF from critical habitat for
the San Diego fairy shrimp, and we are
not relying on section 3(5)(A) of the Act
as an additional basis for our decision
not to designate these military lands.
Marine Corps Air Station Miramar
(MCAS Miramar)
We have determined that
conservation efforts identified in the
INRMP for MCAS Miramar provide a
benefit to the San Diego fairy shrimp
occurring on MCAS Miramar. This
includes 1,703 ac (689 ha) of habitat
throughout the western portion of
MCAS Miramar. Therefore, this
installation is exempt from critical
habitat for San Diego fairy shrimp under
section 4(a)(3) of the Act for the reasons
described below.
MCAS Miramar completed a final
INRMP in May 2000. MCAS Miramar
revised and updated its INRMP in 2006
to address conservation and
management recommendations within
the scope of the installation’s military
mission, including conservation
measures for the San Diego fairy shrimp
and vernal pool habitat on the base
(MCAS Miramar 2006, Section 7, pp.
17–23).
We have determined that MCAS
Miramar’s INRMP benefits the San
Diego fairy shrimp through ongoing
efforts to avoid and minimize impacts to
the species and vernal pool habitat. The
INRMP classifies nearly all of the vernal
pool basins and watersheds on MCAS
Miramar as a Level I Management Area.
Under the INRMP, Level I Management
Areas receive the highest conservation
priority of the various levels of
Management Areas on MCAS Miramar.
The conservation of vernal pool basins
and watersheds in Level I Management
Areas is achieved through: (1) Education
of base personnel; (2) implementation of
proactive measures that help avoid
accidental impacts (e.g., signs and
fencing); (3) development of procedures
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to respond to and restore accidental
impacts on vernal pools; and (4)
maintenance of an inventory of vernal
pool basins and the associated
watersheds on MCAS Miramar. Further,
the MCAS Miramar’s environmental
security staff reviews projects and
enforces existing regulations and orders
that, through their implementation,
avoid and minimize impacts to natural
resources, including the San Diego fairy
shrimp and its habitat. Activities
occurring on MCAS Miramar are
currently being conducted in a manner
that minimizes impacts to San Diego
fairy shrimp and prevents degradation
or destruction of vernal pool habitat.
This military installation has an
approved INRMP that we have
determined provides a benefit to the San
Diego fairy shrimp, and the Marine
Corps has committed to work closely
with the Service and CDFG to
continually refine the existing INRMP as
part of the Sikes Act’s INRMP review
process. Based on the above
considerations, and consistent with the
direction provided in section
4(a)(3)(B)(i) of the Act, this installation
is exempt from this critical habitat
designation.
Marine Corps Base Camp Pendleton
(MCB Camp Pendleton)
We have determined that
conservation efforts identified in the
INRMP for MCB Camp Pendleton
provide a benefit to the San Diego fairy
shrimp occurring on MCB Camp
Pendleton. This includes 7,750 ac (3,137
ha) of habitat located in the following
areas: Cockleburr Mesa; La Pulgas; San
Mateo; the State Park Lease Area (San
Onofre State Park); Stuart Mesa; Wire
Mountain; and O’Neill (names of areas
follow those used in the recovery plan
(Service 1998a, Appendix E)).
Therefore, this installation is exempt
from critical habitat for San Diego fairy
shrimp pursuant to section 4(a)(3) of the
Act for the reasons described below.
MCB Camp Pendleton completed
their INRMP in November 2001. MCB
Camp Pendleton revised and updated its
INRMP in 2007 to address conservation
and management recommendations
within the scope of the installation’s
military mission, including
conservation measures for the San Diego
fairy shrimp and vernal pool habitat on
the base (MCB Camp Pendleton 2007,
Section 4, pp. 51–76). Also, according to
the 2007 INRMP, California State Parks
is required to conduct its natural
resources management consistent with
the philosophies and supportive of the
objectives of the revised 2007 INRMP
(MCB Camp Pendleton 2007, pp. 2–31).
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MCB Camp Pendleton’s INRMP
benefits the San Diego fairy shrimp
through ongoing efforts to survey and
monitor the species and to provide this
information to all necessary personnel
through MCB Camp Pendleton’s GIS
database on sensitive resources and in
their published resource atlas. MCB
Camp Pendleton’s INRMP also benefits
the San Diego fairy shrimp by
implementing the following base
directives to avoid and minimize
adverse effects to the species: (1)
Bivouac, command post, and field
support activities should be no closer
than 984 ft (300 m) to occupied San
Diego fairy shrimp habitat year round;
(2) vehicle and equipment operations
are limited to existing road and trail
networks year round; and (3) any soil
excavation, filling, or grading require
environmental clearance. Further, MCB
Camp Pendleton’s environmental
security staff review projects and
enforces existing regulations and orders
that, through their implementation,
avoid and minimize impacts to natural
resources, including the San Diego fairy
shrimp and its habitat. Activities
occurring on MCB Camp Pendleton are
currently being conducted in a manner
that minimizes impacts to San Diego
fairy shrimp habitat. In addition, MCB
Camp Pendleton provides training to
personnel on environmental awareness
for sensitive resources on the base
including San Diego fairy shrimp and
vernal pool habitat. We are also
consulting with the Marine Corps under
section 7 of the Act to programmatically
address potential impacts to the San
Diego fairy shrimp (and several other
species) as a result of military training
and other activities on MCB Camp
Pendleton. Upon completion of this
consultation, we anticipate additional
measures that benefit San Diego fairy
shrimp will be incorporated into the
INRMP for MCB Camp Pendleton.
MCB Camp Pendleton has an
approved INRMP that we have
determined provides a benefit to the San
Diego fairy shrimp and the Marine
Corps has committed to work closely
with the Service, CDFG, and California
Department of Parks and Recreation to
continually refine the existing INRMP as
part of the Sikes Act’s INRMP review
process. Based on the above
considerations, and consistent with the
direction provided in section
4(a)(3)(B)(i) of the Act, MCB Camp
Pendleton, including those lands leased
to the California State Parks (i.e., San
Onofre State Beach) is exempt from this
critical habitat.
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Naval Base Coronado (Including Naval
Radar Receiving Facility and Naval
Outlying Landing Field)
We have determined that
conservation efforts identified in the
INRMP for Naval Base Coronado (Naval
Base Coronado 2002, Section 4, pp. 4–
47) provide a benefit to the San Diego
fairy shrimp. This includes 169 ac (68
ha) of habitat covered by Naval Base
Coronado’s INRMP at the following
installations: the Naval Radar Receiving
Facility (NRRF) and the Naval Outlying
Landing Field (NOLF). Therefore, this
installation is exempt from critical
habitat for San Diego fairy shrimp under
section 4(a)(3) of the Act for the reasons
described below.
Naval Base Coronado completed an
INRMP in May 2002, which includes
NRRF south of Coronado and NOLF in
Imperial Beach. Naval Base Coronado
completed the INRMP to address
conservation and management
recommendations within the scope of
the installation’s military mission.
Naval Base Coronado’s INRMP provides
conservation measures for the San Diego
fairy shrimp and vernal pool habitat on
NRRF and NOLF.
One of the goals of Naval Base
Coronado’s INRMP is to conserve the
San Diego fairy shrimp through the
management of vernal pool habitat,
including the following provisions: (1)
Monitor the status of San Diego fairy
shrimp populations; (2) post signs
around vernal pools; (3) advise
personnel to keep vehicles on the main
roads while traveling through the
property; and (4) seek opportunities to
restore disturbed vernal pool habitats
while considering potential impacts to
the San Diego fairy shrimp. Further, the
Naval Base Coronado’s environmental
security staff reviews projects and
enforces existing regulations and orders
that, through their implementation,
avoid and minimize impacts to natural
resources, including San Diego fairy
shrimp and their habitat. Activities
occurring on NRRF and NOLF are
currently being conducted in a manner
that minimizes impacts to San Diego
fairy shrimp habitat.
Naval Base Coronado, which includes
NRRF and NOLF, has an approved
INRMP that we have determined
provides a benefit to the San Diego fairy
shrimp and the Navy has committed to
work closely with the Service and CDFG
to continually refine the existing INRMP
as part of the Sikes Act’s INRMP review
process. Based on the above
considerations, and consistent with the
direction provided in section
4(a)(3)(B)(i) of the Act, this installation
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is exempt from this critical habitat
designation.
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that
the Secretary must designate and revise
critical habitat on the basis of the best
available scientific data after taking into
consideration the economic impact,
national security impact, and any other
relevant impact of specifying any
particular area as critical habitat. The
Secretary may exclude an area from
critical habitat if he determines that the
benefits of such exclusion outweigh the
benefits of specifying such area as part
of the critical habitat, unless he
determines, based on the best scientific
data available, that the failure to
designate such area as critical habitat
will result in the extinction of the
species. In making that determination,
the Congressional Record is clear that
the Secretary has broad discretion
regarding which factor(s) to use and
how much weight to give to any factor.
Under section 4(b)(2) of the Act, in
considering whether to exclude a
particular area from the designation, we
must identify the benefits of including
the area in the designation, identify the
benefits of excluding the area from the
designation, and determine whether the
benefits of exclusion outweigh the
benefits of inclusion. If based on this
analysis, we make this determination,
then we can exclude the area only if
such exclusion would not result in the
extinction of the species. In the
following sections, we address a number
of general issues that are relevant to the
exclusions we considered.
In addition, we conducted a DEA of
the impacts of the proposed revision to
designated critical habitat and related
factors (referred to here as the DEA).
The DEA was made available for public
review and comment from April 8,
2004, to May 10, 2004 (69 FR 18516).
Substantive comments and information
received on the DEA are summarized
above in the Public Comment section
and have been incorporated into the
final analysis, as appropriate. Based on
public comment on the DEA, the
proposed revision to critical habitat, and
the information in this revised final
designation of critical habitat and the
final economic analysis, we have
excluded areas from critical habitat
under the provisions of section 4(b)(2)
of the Act. This is also addressed in our
implementing regulations at 50 CFR
424.19.
Benefits of Designating Critical Habitat
The process of designating critical
habitat as described in the Act requires
that the Service identify those lands on
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which are found the physical or
biological features essential to the
conservation of the species that may
require special management
considerations or protection, and those
areas outside the geographical area
occupied by the species at the time of
listing that are essential to the
conservation of the species. In
identifying those lands, the Service
must consider the recovery needs of the
species, such that, on the basis of the
best scientific and commercial data
available at the time of designation, the
habitat that is identified, if managed,
could provide for the survival and
recovery of the species.
The identification of those areas that
are essential for the conservation of the
species and can, if managed, provide for
the recovery of a species is beneficial.
The process of proposing and finalizing
a critical habitat rule provides the
Service with the opportunity to
determine the features or PCEs essential
for conservation of the species within
the geographical area occupied by the
species at the time of listing, as well as
to determine other areas essential to the
conservation of the species. The
designation process includes peer
review and public comment on the
identified features and areas. This
process is valuable to land owners and
managers in developing conservation
management plans for identified areas,
as well as any other occupied habitat or
suitable habitat that may not have been
included in the Service’s determination
of essential habitat.
The consultation provisions under
section 7(a) of the Act constitute the
regulatory benefits of critical habitat. As
discussed above, Federal agencies must
consult with us on actions that may
affect critical habitat and must avoid
destroying or adversely modifying
critical habitat. Federal agencies must
also consult with us on actions that may
affect a listed species and refrain from
undertaking actions that are likely to
jeopardize the continued existence of
such species. The analysis of effects to
critical habitat is a separate and
different analysis from that of the effects
to the species. Therefore, the difference
in outcomes of these two analyses
represents the regulatory benefit of
critical habitat. For some species, and in
some locations, the outcome of these
analyses will be similar, because effects
on habitat will often result in effects on
the species. However, the regulatory
standard is different: the jeopardy
analysis looks at the action’s impact on
survival and recovery of the species,
while the adverse modification analysis
looks at the action’s effects on the
designated habitat’s contribution to the
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species’ conservation. This will, in
many instances, lead to different results
and different regulatory requirements.
For 30 years prior to the Ninth
Circuit’s decision in Gifford Pinchot,
consistent with the 1986 regulations, we
essentially combined the jeopardy
standard with the standard for
destruction or adverse modification of
critical habitat when evaluating Federal
actions that affected currently occupied
critical habitat. However, the court of
appeals ruled that the two standards are
distinct and that adverse modification
evaluations require consideration of
impacts on species recovery. Thus,
critical habitat designations may
provide greater regulatory benefits to the
recovery of a species than would listing
alone.
There are two limitations to the
regulatory effect of critical habitat. First,
a section 7(a)(2) consultation is required
only where there is a Federal nexus (an
action authorized, funded, or carried out
by any Federal agency)—if there is no
Federal nexus, the critical habitat
designation of private lands itself does
not restrict any actions that destroy or
adversely modify critical habitat.
Second, the designation only limits
destruction or adverse modification. By
its nature, the prohibition on adverse
modification is designed to ensure that
the conservation role and function of
those areas that contain the physical
and biological features essential to the
conservation of the species or of
unoccupied areas that are essential to
the conservation of the species is not
appreciably reduced. Critical habitat
designation alone, however, does not
require property owners to undertake
specific steps toward recovery of the
species.
Once an agency determines that
consultation under section 7(a)(2) of the
Act is necessary, the process may
conclude informally when we concur in
writing that the proposed Federal action
is not likely to adversely affect critical
habitat. However, if we determine
through informal consultation that
adverse impacts are likely to occur, then
we would initiate formal consultation,
which would conclude when we issue
a biological opinion on whether the
proposed Federal action is likely to
result in destruction or adverse
modification of critical habitat.
For critical habitat, a biological
opinion that concludes in a
determination of no destruction or
adverse modification may contain
discretionary conservation
recommendations to minimize adverse
effects to primary constituent elements,
but it would not suggest the
implementation of any reasonable and
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prudent alternative. We suggest
reasonable and prudent alternatives to
the proposed Federal action only when
our biological opinion results in an
adverse modification conclusion.
As stated above, the designation of
critical habitat does not require that any
management or recovery actions take
place on the lands included in the
designation. Even in cases where
consultation has been initiated under
section 7(a)(2) of the Act, the end result
of consultation is to avoid jeopardy to
the species and/or adverse modification
of its critical habitat, but not specifically
to manage remaining lands or institute
recovery actions on remaining lands.
Conversely, voluntary conservation
efforts implemented through
management plans institute proactive
actions over the lands they encompass
and are put in place to remove or reduce
known threats to a species or its habitat;
therefore, implementing recovery
actions. We believe that in many
instances the benefit to a species and/
or its habitat realized through the
designation of critical habitat is low
when compared to the conservation
benefit that can be achieved through
voluntary conservation efforts or
management plans. The conservation
achieved through implementing HCPs
or other habitat management plans can
be greater than what we achieve through
multiple site-by-site, project-by-project,
section 7(a)(2) consultations involving
consideration of critical habitat.
Management plans may commit
resources to implement long-term
management and protection to
particular habitat for at least one and
possibly additional listed or sensitive
species. Section 7(a)(2) consultations
commit Federal agencies to preventing
adverse modification of critical habitat
caused by the particular project only,
and not to providing conservation or
long-term benefits to areas not affected
by the proposed project. Thus,
implementation of any HCP or
management plan that considers
enhancement or recovery as the
management standard may often
provide as much or more benefit than a
consultation for critical habitat
designation.
Another benefit of including lands in
critical habitat is that designation of
critical habitat serves to educate
landowners, State and local
governments, and the public regarding
the potential conservation value of an
area. This helps focus and promote
conservation efforts by other parties by
clearly delineating areas of high
conservation value for the coastal
California gnatcatcher. In general,
critical habitat designation always has
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educational benefits; however, in some
cases, they may be redundant with other
educational effects. For example, HCPs
have significant public input and may
largely duplicate the educational
benefits of a critical habitat designation.
Including lands in critical habitat also
would inform State agencies and local
governments about areas that could be
conserved under State laws or local
ordinances.
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Conservation Partnerships on NonFederal Lands
Most federally listed species in the
United States will not recover without
cooperation of non-Federal landowners.
More than 60 percent of the United
States is privately owned (National
Wilderness Institute 1995), and at least
80 percent of endangered or threatened
species occur either partially or solely
on private lands (Crouse et al. 2002).
Stein et al. (1995) found that only about
12 percent of listed species were found
almost exclusively on Federal lands (90
to 100 percent of their known
occurrences restricted to Federal lands)
and that 50 percent of federally listed
species are not known to occur on
Federal lands at all.
Given the distribution of listed
species with respect to land ownership,
conservation of listed species in many
parts of the United States is dependent
upon working partnerships with a wide
variety of entities and the voluntary
cooperation of many non-Federal
landowners (Wilcove and Chen 1998;
Crouse et al. 2002; James 2002).
Building partnerships and promoting
voluntary cooperation of landowners are
essential to our understanding the status
of species on non-Federal lands, and
necessary for us to implement recovery
actions such as reintroducing listed
species and restoring and protecting
habitat.
Many non-Federal landowners derive
satisfaction from contributing to
endangered species recovery. We
promote these private-sector efforts
through the Department of the Interior’s
Cooperative Conservation philosophy.
Conservation agreements with nonFederal landowners (HCPs, safe harbor
agreements, other conservation
agreements, easements, and State and
local regulations) enhance species
conservation by extending species
protections beyond those available
through section 7 consultations. In the
past decade, we have encouraged nonFederal landowners to enter into
conservation agreements, based on the
view that we can achieve greater species
conservation on non-Federal land
through such partnerships than we can
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through regulatory methods (61 FR
63854; December 2, 1996).
Many private landowners, however,
are wary of the possible consequences of
attracting endangered species to their
property. Mounting evidence suggests
that some regulatory actions by the
Federal Government, while wellintentioned and required by law, can
(under certain circumstances) have
unintended negative consequences for
the conservation of species on private
lands (Wilcove et al. 1996; Bean 2002;
Conner and Mathews 2002; James 2002;
Koch 2002; Brook et al. 2003). Many
landowners fear a decline in their
property value due to real or perceived
restrictions on land-use options where
threatened or endangered species are
found. Consequently, harboring
endangered species is viewed by many
landowners as a liability. This
perception results in anti-conservation
incentives, because maintaining habitats
that harbor endangered species
represents a risk to future economic
opportunities (Main et al. 1999; Brook et
al. 2003).
According to some researchers, the
designation of critical habitat on private
lands significantly reduces the
likelihood that landowners will support
and carry out conservation actions
(Main et al. 1999; Bean 2002; Brook et
al. 2003). The magnitude of this
outcome is greatly amplified in
situations where active management
measures (such as reintroduction, fire
management, control of invasive
species) are necessary for species
conservation (Bean 2002). We believe
that the judicious use of excluding
specific areas of non-federally owned
lands from critical habitat designations
can contribute to species recovery and
provide a superior level of conservation
than critical habitat alone.
The purpose of designating critical
habitat is to contribute to the
conservation of threatened and
endangered species and the ecosystems
upon which they depend. The outcome
of the designation, triggering regulatory
requirements for actions funded,
authorized, or carried out by Federal
agencies under section 7(a)(2) of the
Act, can sometimes be
counterproductive to its intended
purpose on non-Federal lands. Thus the
benefits of excluding areas that are
covered by effective partnerships or
other voluntary conservation
commitments can often be high.
Benefits of Excluding Lands With HCPs
or Other Approved Management Plans
The benefits of excluding lands with
HCPs or other approved long-term
management plans from critical habitat
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designation include relieving
landowners, communities, and counties
of any additional regulatory burden that
might be imposed by critical habitat.
Many HCPs and other conservation
plans take years to develop, and upon
completion, are consistent with
recovery objectives for listed species
that are covered within the plan area.
Many also provide conservation benefits
to unlisted sensitive species. Imposing
an additional regulatory review as a
result of the designation of critical
habitat may undermine conservation
efforts and partnerships in many areas.
Our experience in implementing the Act
has found that designation of critical
habitat within the boundaries of
management plans that provide
conservation measures for a species is a
disincentive to many entities which are
either currently developing such plans,
or contemplating doing so in the future,
because one of the incentives for
undertaking conservation is greater ease
of permitting where listed species will
be affected. Addition of a new
regulatory requirement would remove a
significant incentive for undertaking the
time and expense of management
planning. In fact, designating critical
habitat in areas covered by a pending
HCP or conservation plan could result
in the loss of some species’ benefits if
participants abandon the planning
process, in part because of the strength
of the perceived additional regulatory
compliance that such designation would
entail. The time and cost of regulatory
compliance for a critical habitat
designation do not have to be quantified
for them to be perceived as additional
Federal regulatory burden sufficient to
discourage continued participation in
developing plans targeting listed
species’ conservation.
A related benefit of excluding lands
within approved HCPs and management
plans from critical habitat designation is
the unhindered, continued ability it
gives us to seek new partnerships with
future plan participants, including
States, counties, local jurisdictions,
conservation organizations, and private
landowners, which together can
implement conservation actions that we
would be unable to accomplish
otherwise. Designating lands within
approved management plan areas as
critical habitat would likely have a
negative effect on our ability to establish
new partnerships to develop these
plans, particularly plans that address
landscape-level conservation of species
and habitats. By excluding these lands,
we preserve our current partnerships
and encourage additional conservation
actions in the future.
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Furthermore, both HCP and Natural
Communities Conservation Plan
(NCCP)-HCP applications require
consultation, which would review the
effects of all HCP-covered activities that
might adversely impact the species
under a jeopardy standard, including
possibly significant habitat modification
(see definition of ‘‘harm’’ at 50 CFR
17.3), even without the critical habitat
designation. In addition, all other
Federal actions that may affect the listed
species would still require consultation
under section 7(a)(2) of the Act, and we
would review these actions for possibly
significant habitat modification in
accordance with the definition of harm
referenced above.
The information provided in the
previous section applies to all the
following discussions of benefits of
inclusion or exclusion of critical habitat.
Areas Excluded Under Section 4(b)(2)
of the Act
In the April 22, 2003, proposed rule,
we considered, but did not propose as
critical habitat under section 4(b)(2) of
the Act, lands covered by the City of
San Diego subarea plan under the MSCP
and the County of San Diego subarea
plan under the MSCP (collectively
referred to as lands in the San Diego
MSCP in the 2003 proposed rule). In
this revised final rule, we reaffirm our
exclusion of lands covered by the
County of San Diego subarea plan under
the MSCP under section 4(b)(2) of the
Act. We have also excluded lands from
this revised final designation under
section 4(b)(2) that are covered by the
Southern Subregion HCP, a recently
completed HCP in Orange County.
However, we have not excluded lands
covered by the City of San Diego
subarea plan under the MSCP (see
Summary of Changes From Previously
Designated Critical Habitat and 2003
Proposed Rule section above for a
detailed discussion). The conservation
value of the excluded County of San
Diego and southern Orange County
lands for San Diego fairy shrimp has
been addressed by the respective habitat
conservation plans covering these lands.
A detailed analysis of our exclusion of
these lands under section 4(b)(2) of the
Act is provided in the paragraphs that
follow under the section heading,
Relationship of Critical Habitat to
Habitat Conservation Plan Lands—
Exclusions Under Section 4(b)(2) of the
Act.
Additionally, we excluded, under
section 4(b)(2) of the Act, essential
habitat in the following areas: (1) The
Irvine Ranch in Orange County; (2)
Fairview Park in the City of Costa Mesa;
and (3) Department of Homeland
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Security lands at Arnie’s Point in San
Diego. The conservation value of these
lands for San Diego fairy shrimp has
been addressed by existing protective
actions and exclusion of these lands
under the provisions of section 4(b)(2) is
appropriate. We are excluding areas (1)
through (3) because we believe that
either their value for conservation will
be preserved for the foreseeable future
by existing protective actions, or they
are appropriate for exclusion under the
‘‘other relevant factor’’ provisions of
section 4(b)(2) of the Act.
A detailed analysis of our exclusion of
these lands under section 4(b)(2) of the
Act is provided in the paragraphs that
follow.
Habitat Conservation Plan Lands—
Exclusions Under Section 4(b)(2) of the
Act
In reviewing approved HCPs for
potential exclusion under section 4(b)(2)
we consider, in addition to the general
partnership relationships identified
above, whether the plan provides for
protection and appropriate
management, if necessary, of essential
habitat within the plan area and
incorporates conservation strategies and
measures consistent with currently
accepted principles of conservation
biology.
Orange County Southern Subregion
Habitat Conservation Plan (Southern
Subregion HCP)
The Southern Subregion HCP was
developed in support of applications for
incidental take permits for several
covered species, including the San
Diego fairy shrimp, by Orange County,
Rancho Mission Viejo, and the Santa
Margarita Water District in connection
with proposed residential development
and related actions in southern Orange
County. The Service issued permits
based on the plan on January 10, 2007.
At this time an NCCP permit has not
been granted for this plan.
The Southern Subregion HCP action
area encompasses 86,076 ac (34,834 ha)
(Service 2007, p. 24) and provides for
the conservation of covered species,
including the San Diego fairy shrimp,
through the establishment of an
approximately 30,426 ac (12,313 ha)
habitat reserve and 4,456 ac (1,803 ha)
of supplemental open space areas
(Service 2007, p. 19). Subunits 1D and
1E fall within the boundaries of the
habitat reserve of this HCP.
Implementation of the covered
development activities under the
Southern Subregion HCP will not
permanently impact any areas that we
have determined contain the features
essential to the conservation of the San
Diego fairy shrimp (Service 2007, p.
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70681
142). Critical habitat subunits 1D and
1E, which encompass the vernal pool
basins and associated vernal pool
watersheds on Chiquita Ridge and Radio
Tower Road, will be conserved and
managed within the habitat reserve
(Service 2007, p. 142). The adaptive
management program for the San Diego
fairy shrimp incorporated into this HCP,
includes regular monitoring and
necessary management, and will
address potential sources of habitat
degradation to ensure that all existing
pools within subunits 1D and 1E are
managed in a way that will maintain the
ecological distribution and genetic
variability of this species on a broad
geographic scale (Service 2007, p. 142).
The underlying hydrogeomorphic
processes that support these vernal
pools will be preserved through the
protection of the vernal pool watersheds
(PCE 2) from any development activities
(Service 2007, p. 10).
The Southern Subregion HCP benefits
the PCEs essential to the conservation of
the San Diego fairy shrimp through the
implementation of the following
conservation measures: conservation of
vernal pools within the habitat reserve
(PCE 1); minimizing impacts to vernal
pools from development; maintaining
water quality/quantity (PCE 2 and PCE
3); controlling non-native invasive
species (PCE 1 and PCE 2); managing
livestock grazing (PCE 1 and PCE 2); and
minimizing human access and
disturbance (PCE 1, PCE 2, and PCE 3).
Specifically, any development must be
located at least 1000 ft (305 m) away
from the vernal pools and built at a
lower elevation than the vernal pools to
avoid hydrological alterations (PCE 1
and PCE 2) (Service 2007, p. 143). Water
quality monitoring will be conducted
throughout the life of the permit at
occupied vernal pools near
development (PCE 2) (Service 2007, p.
143). Management tools will be
developed specifically for controlling
nonnative plant species in the
watersheds of the Chiquita Ridge and
Radio Tower Road vernal pools, so that
nonnative plants do not alter the
ponding depth or duration of the vernal
pools by directly growing in the vernal
pool basin or by indirectly diverting
water from the vernal pool by growing
in the vernal pool watershed (PCE 1 and
PCE 2) (Service 2007, p. 143).
Furthermore, livestock grazing in vernal
pool areas will be monitored and can be
managed by implementing seasonal
exclusion of cattle through the
placement of temporary fencing around
vernal pools, which will ensure that
cattle do not impact the vernal pool
basin by compacting the soil or greatly
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alter the water quality in the vernal pool
while it is filled with water (PCE 1)
(Service 2007, p. 143). Exclusionary
fencing has already been placed around
Chiquita Ridge vernal pools, and public
access to the habitat reserve will be
limited protecting the ponding duration
(PCE 1), the hydrology (PCE 2), and the
underlying claypan or hardpan soil
layer (PCE 3) (Service 2007, p. 144).
Properly timed prescribed burns can
effectively control nonnative species,
thereby, protecting the ability of the
vernal pools to hold water for the
appropriate duration (PCE 1). Prescribed
burns will include any necessary impact
avoidance minimization measures to
ensure that the populations of San Diego
fairy shrimp are conserved (Service
2007, p. 144).
In the 1997 final rule listing this
species as endangered (62 FR 4925,
February 3, 1997), we identified habitat
destruction and fragmentation from
urban development and agricultural
conversion, alterations of vernal pool
hydrology, off-road vehicle activity, and
livestock grazing as primary threats to
the species. As described above, the
Southern Subregion HCP provides
protection and appropriate management
for the San Diego fairy shrimp, its
habitat, and its PCEs through
implementation of conservation
strategies that are consistent with
generally accepted principles of
conservation biology. The Southern
Subregion HCP preserves habitat that
supports identified core populations of
this species and therefore provides for
recovery.
Benefits of Exclusion Outweigh Benefits
of Inclusion
As discussed in the Benefits of
Designating Critical Habitat section, we
believe that the regulatory benefit of
critical habitat is low when essential
habitat is protected under an HCP or
management plan such as the Southern
Subregion HCP. The Southern
Subregion HCP addresses conservation
issues from a coordinated, integrated
perspective rather than a piecemeal
project-by-project approach and will
achieve more San Diego fairy shrimp
conservation than we would achieve
through multiple site-by-site, project-byproject, section 7 consultations
involving consideration of critical
habitat. This regional HCP provides for
the proactive monitoring and
management of conserved lands (as
previously described), which will
remove or reduce known threats to the
San Diego fairy shrimp or its habitat.
Conservation and management of San
Diego fairy shrimp habitat is essential to
survival and recovery of this species.
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Such conservation needs are typically
not addressed through the application of
the statutory prohibition on adverse
modification or destruction of critical
habitat. The Southern Subregion HCP
provides as much or more benefit than
a consultation for critical habitat
designation conducted under the
standards required by the Ninth Circuit
in the Gifford Pinchot decision.
Furthermore educational benefits that
may be derived from a critical habitat
designation are low and largely
redundant to the educational benefits
achieved through significant public,
State, and local government input
during the development and ongoing
implementation of this HCP. We have
developed close partnerships with
Orange County, Rancho Mission Viejo,
and the Santa Margarita Water District
through the development of the
Southern Subregion HCP, a plan that
incorporates appropriate protections
and management for vernal pool habitat
areas, and their constituent PCEs,
essential for the conservation of this
species. Those protections are
consistent with statutory mandates
under section 7 of the Act to avoid
adverse modification or destruction of
critical habitat, and go beyond that
prohibition by including active
management and protection of essential
habitat areas. By excluding these lands
from designation, we are eliminating an
essentially redundant layer of regulatory
review for projects covered by the HCP
and helping to preserve our ongoing
partnerships with the permittees and to
encourage new partnerships with other
landowners and jurisdictions. Those
partnerships, and the landscape level,
multiple-species conservation planning
efforts they promote, are critical for the
conservation of the San Diego fairy
shrimp.
We have reviewed and evaluated the
exclusion of approximately 140 ac (57
ha) of lands within the Southern
Subregion HCP area from the
designation of final critical habitat. We
have determined that the regulatory
benefit of designating lands in subunits
1D and 1E is low because essential San
Diego fairy shrimp habitat within the
plan area is assured of conservation and
management under the HCP. The
educational and recovery benefits of
critical habitat designation are also
minor and have largely been achieved
through development and public review
of the HCP. The minor benefits of
critical habitat designation are
outweighed by the significant
partnership benefits summarized above
that will result from exclusion of the
lands from the final rule. As discussed
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above, the Southern Subregion HCP will
provide for significant preservation and
management of habitat for the San Diego
fairy shrimp and will help reach the
recovery goals for this species.
Exclusion Will Not Result in Extinction
of the Species
We do not believe that the exclusion
of 140 ac (57 ha) from the final
designation of critical habitat for the
San Diego fairy shrimp will result in the
extinction of the species because the
Southern Subregion HCP provides for
the protection and management in
perpetuity of essential habitat, including
its PCEs, for the San Diego fairy shrimp
within subunits 1D and 1E. In addition,
because the 140 ac (57 ha) we have
excluded from critical habitat are
occupied by San Diego fairy shrimp,
future consultations under section 7 of
the Act that involve these lands will
occur even in the absence of their
designation as critical habitat.
Application of jeopardy standard of
section 7 of the Act provides assurances
that the species will not go extinct.
The San Diego County Multiple Species
Conservation Program (MSCP)
In southwestern San Diego County,
the MSCP planning area encompasses
more than 582,000 ac (236,000 ha) in
the southwestern portion of the county
and includes the County of San Diego,
City of San Diego, 10 other city
jurisdictions, and several independent
special districts. Under the broad
umbrella of the MSCP, each
participating jurisdiction prepares a
subarea plan that complements the goals
of the MSCP. We consult under section
7 of the Act on each subarea plan and
associated permit to ensure the issuance
of the associated incidental take permits
under section 10 of the Act are not
likely to jeopardize or adversely modify
or destroy the designated critical habitat
of any covered species. We also review
the subarea plans under section 10 of
the Act to ensure they meet the criteria
for issuance of an incidental take permit
and are consistent with the terms and
goals of the MSCP.
The MSCP provides for the assembly
and establishment of approximately
171,000 ac (69,200 ha) of preserve areas
to provide conservation benefits for 85
federally listed and sensitive species,
including the San Diego fairy shrimp,
over the permit term. The MSCP
provides for avoidance of impacts to
vernal pool habitat for the San Diego
fairy shrimp within and outside of
existing and targeted reserve areas. In
addition, the incidental take permits
issued under this plan do not allow for
the take of San Diego fairy shrimp in
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natural vernal pool habitat. The
individual subarea plans also commit
each jurisdiction to monitor and
adaptively manage vernal pool species
and their associated habitat.
City of San Diego and County of San
Diego Subarea plans Under the MSCP
The objectives of the City and the
County’s subarea plans applicable to the
San Diego fairy shrimp and its essential
vernal pool habitat are to: (1) Implement
a no-net-loss-of-wetlands standard to
satisfy State and Federal wetland goals
and policies; (2) include measures to
maximize habitat diversity within
conserved habitat areas, including
conservation of unique habitats and
habitat features; (3) conserve spatially
representative examples of habitat types
ranked as having high and very high
biological value by the MSCP; (4) create
significant blocks of habitat to reduce
edge effects and maximize the ratio of
surface area to the perimeter of
conserved habitats; (5) provide
incentives for development in the least
sensitive habitat areas; (6) provide for
the conservation of key regional
populations of the covered species, and
representation of sensitive habitats and
their geographic subassociations in
biologically functioning units; and (7)
conserve large interconnected blocks of
habitat that contribute to the
preservation of wide-ranging species.
These measures are intended to
conserve the San Diego fairy shrimp and
its habitat by protecting vernal pool
basins (PCE 1) and the associated vernal
pool watershed necessary for the vernal
pool ecosystem to function (PCE 2) and
connections between vernal pool habitat
and other open-space preserve areas.
To protect vernal pool habitat, the
City and County of San Diego subarea
plans erequire that: (1) Development be
configured in a manner that minimizes
impacts to sensitive biological resources
(Service 1997, p. 10; Service 1998b, p.
7), in order to reduce any impact to San
Diego fairy shrimp habitat through
protection of the vernal pool basin (PCE
1) and associated vernal pool soils (PCE
3); (2) unavoidable impacts to vernal
pools associated with reasonable use or
essential public facilities be minimized
and mitigated to achieve no-net-loss of
function and value; and (3) a sufficient
amount of watershed be avoided as
necessary for the continuing viability of
vernal pools (PCE 2) (Service 1997, pp.
43–44; Service 1998b, p. 67).
In the 1997 final rule listing this
species as endangered (62 FR 4925,
February 3, 1997), we identified habitat
destruction and fragmentation from
urban development and agricultural
conversion, alterations of vernal pool
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hydrology, off-road vehicle activity, and
livestock grazing as primary threats to
the species. As described above, these
subarea plans under the MSCP are
designed to preserve and manage
essential San Diego fairy shrimp habitat
and its PCEs within each subarea.
The incidental take permits issued to
the City and County of San Diego under
the MSCP limit take of San Diego fairy
shrimp to areas outside of jurisdictional
waters of the United States, as that term
was understood under the Clean Water
Act at the time these permits were
issued and prior the 2001 U.S. Supreme
Court’s SWANCC decision. The subarea
plans and permits anticipated that
individual consultations under section 7
of the Act with the ACOE would occur
for all individual projects impacting
vernal pool habitat of the San Diego
fairy shrimp pursuant to section 404 of
the Clean Water Act. In addition, we
assumed these actions would be
required to comply with the
Environmental Protection Agency Clean
Water Act, 404(b)(1) guidelines and the
Federal policy of ‘‘no net loss of
wetland function and values.’’ In light
of the intervening SWANCC decision,
these individual reviews may not occur.
Further, the U.S. District Court for the
Southern District of California on
October 13, 2006, (Southwest Center for
Biological Diversity v. Bartel, CV 98–
2234) (referred to here as the Bartel
decision) concluded, in part, that the
approach adopted in the City of San
Diego’s MSCP subarea plan to evaluate
individual project impacts on vernal
pool species, including the San Diego
fairy shrimp, had been effectively
eliminated by the SWANCC decision
and that the remaining protections
contained in the City’s subarea plan do
not adequately protect the San Diego
fairy shrimp and the other vernal pool
species. The court enjoined the City of
San Diego’s incidental take permit with
respect to ongoing and future land use
activities that affect vernal pool habitat.
The district court ruling does not apply
to other HCPs, including other MSCP
subarea plans, and does not address the
adequacy of these other plans to protect
the San Diego fairy shrimp.
In light of the SWANCC and Bartel
decisions, we have reanalyzed lands
covered by the City and County subarea
plans to determine whether lands
essential to the conservation of the San
Diego fairy shrimp are assured of
conservation and management
consistent with the original objectives
and goals of the MSCP and subarea
plans.
Approximately 1,805 ac (730 ha) of
habitat essential to the conservation of
the San Diego fairy shrimp are within
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70683
the boundaries of the City of San Diego’s
subarea plan. Of these 1,805 ac (730 ha),
approximately 420 ac (170 ha) have
been dedicated to the City of San
Diego’s preserve and 1,385 ac (561 ha)
have yet to be fully conserved (HabiTrak
database 2007). In light of the SWANCC
and Bartel decisions, the conservation of
essential habitat in the City of San Diego
is uncertain. Conversely, approximately
224 ac (90 ha) of habitat essential to the
conservation of the San Diego fairy
shrimp are within the boundaries of the
County of San Diego’s subarea plan. Of
these 224 ac (90 ha), approximately 157
ac (63 ha) have been dedicated to the
County of San Diego’s preserve and 67
ac (27 ha) have yet to be fully conserved
(HabiTrak database 2007); however, as
we describe below, these lands are
reasonably assured of conservation.
Because we are not assured of the
conservation of most of the habitat
essential to the conservation of the San
Diego fairy shrimp within the City of
San Diego’s subarea plan, we have
determined that essential habitat
covered by this subarea plan should be
designated as critical habitat.
While the potential regulatory,
educational and recovery benefits of
designating essential habitat within the
City’s subarea plan are low for the
reasons stated in Benefits of Designating
Critical Habitat and Conservation
Partnerships on Non-Federal Lands
sections above, and in particular,
because of the uncertainty regarding a
future Federal nexus for section 7
consultation involving such lands, the
partnership benefits of excluding
essential habitat within the subarea plan
area are also low. As discussed above
under Benefits of Excluding Lands
within HCPs and Other Approved
Management Plans, a primary reason for
excluding lands covered by HCPs from
designation is to preserve our
partnerships with local jurisdictions
and private landowners in order to
achieve a higher level of protection and
management for listed species than
would otherwise occur through
regulation under Section 7 of the Act.
However, given the concerns raised by
the Bartel decision about the adequacy
of the City’s plan to protect vernal pool
habitat and uncertainty about future of
the plan with regard to the San Diego
fairy shrimp, it is not clear that the
conservation measures provided under
the City’s current plan will benefit the
San Diego fairy shrimp more than the
designation of essential habitat within
the City. Because we do not believe that
the benefits of excluding essential
habitat covered by the City’s subarea
plan outweigh the benefits of including
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such lands as critical habitat, we have
included the lands in the final
designation. We remain committed to
working with the City of San Diego and
other stakeholders to strengthen the
protections for the San Diego fairy
shrimp and its essential habitat
provided in the City’s subarea plan.
In contrast to lands covered by the
City of San Diego’s subarea plan, all of
the lands slated for conservation of the
San Diego fairy shrimp under the
County of San Diego’s subarea plan have
already been permanently conserved
and managed or are assured of
conservation and management through
other specific conservation plans. Of the
224 ac (90 ha) of habitat essential to the
conservation of the San Diego fairy
shrimp occurring within the boundary
of the County of San Diego’s subarea
plan, 157 ac (63 ha) of land have already
been dedicated to the County of San
Diego preserve. An additional 62 ac (25
ha) of land will be conserved under the
Otay Ranch Phase 2 Resource
Management Plan (Otay Ranch 2002)
(Otay Ranch Plan)T). The remaining 5
ac (2 ha) of essential vernal pool habitat
is targeted for conservation as part of the
County’s future proposed amendment to
the County’s MSCP subarea plan to add
the Quino checkerspot butterfly
(Euphydryas editha quino) as a covered
species. In sum, all essential vernal pool
habitat identified for conservation under
the County’s subarea plan has been
conserved and managed or is reasonably
assured of conservation and
management.
The Otay Ranch Plan is an approved
General Development Plan that was
developed to conserve sensitive
biological resources on Otay Ranch
while allowing compatible residential
and commercial development. This plan
includes land in the City of San Diego,
the City of Chula Vista, and the County
of San Diego. The areas covered under
this plan in the County of San Diego,
which will be conserved, have been
added to the County of San Diego’s
subarea plan preserve, thus
conservation of these areas is assured.
The lands within in the Otay Ranch
Plan are essential to the long-term
conservation of several species in
southern San Diego County, and include
80 ac (32 ha) of essential habitat for the
San Diego fairy shrimp in the County of
San Diego. While 62 ac (25 ha) of these
80 ac (32 ha) of essential habitat have
not been dedicated to the MSCP
preserve and are not yet managed under
the Otay Ranch Plan, ongoing measures
are in place to protect all San Diego
fairy shrimp habitat and conserve the
PCEs on those lands. All 80 ac (32 ha)
of essential habitat is entirely within the
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area zoned by the County of San Diego
as open space, which places restrictions
on any development in this area.
Furthermore, the essential habitat is
fenced and has locked gates at access
points, excluding any unauthorized offroad vehicle activity from the area.
Other areas within the Otay Ranch have
been conserved as expected and we
believe a reasonable certainty exists that
these 62 ac (25 ha) will be conserved as
planned.
The Plan (Otay Ranch 2002, pp. 52–
53, 112–130, 141–145) describes the
following monitoring and management
activities, which will benefit San Diego
fairy shrimp within the Otay Ranch
Preserve: (1) Focused surveys and
population estimates specifically for
San Diego fairy shrimp (pp. 141, 145);
(2) management of vernal pool habitat as
discussed in the ‘‘Vernal Pool
Preservation and Management Plan’’
(pp. 112–130); (3) inhibition of
additional degradation (through fencing,
elimination of cattle grazing, and access
control) (p. 121); (4) establishment of
protocols for research and education (p.
121); (5) development of specific
monitoring strategies for determining
changes in flora and fauna of the pools
(p. 121); (6) general enhancement
activities (p. 121); and (7) removal and
control of exotic species including the
control of nonnative plants (p. 53).
The conservation or reasonably
assured future conservation of the
habitat that contains the features
essential to the conservation of the San
Diego fairy shrimp within the
boundaries of the County of San Diego’s
subarea plan ensures that the San Diego
fairy shrimp will be adequately
protected and conserved under the
County’s subarea plan. Implementation
of the County’s subarea plan will
adequately manage (as previously
described) habitat and features essential
to the conservation of the San Diego
fairy shrimp. Therefore, we are
reaffirming our exclusion of 224 ac (90
ha) of land covered by the County of
San Diego subarea plan under the MSCP
under section 4(b)(2) of the Act.
Benefits of Exclusion Outweigh the
Benefits of Inclusion
As discussed under Benefits of
Designating Critical Habitat above, we
believe that the regulatory benefit of
critical habitat is low when essential
habitat is protected under an HCP or
similar management plan such as the
County of San Diego’s MSCP Subarea
Plan and the Otay Ranch Plan. The
County’s subarea plan and the Otay
Ranch Plan address conservation issues
from a coordinated, integrated
perspective rather than a piece meal
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project-by-project approach and will
achieve more San Diego fairy shrimp
conservation than we would achieve
through multiple site-by-site, project-byproject, section 7 consultations
involving consideration of critical
habitat. The subarea plan and Otay
Ranch Plan provide for the proactive
monitoring and management of
conserved lands (as previously
described), which will remove or reduce
known threats to the San Diego fairy
shrimp and its habitat. Conservation
and management of San Diego fairy
shrimp habitat is essential to survival
and recovery of this species. Such
conservation needs are often not
addressed through the application of the
statutory prohibition on adverse
modification or destruction of critical
habitat. The County’s MSCP subarea
plan and the Otay Ranch Plan provide
as much or more benefit than a
consultation for critical habitat
designation conducted under the
standards required by the Ninth Circuit
in the Gifford Pinchot decision. Further,
the educational benefits that may be
derived from a critical habitat
designation are low and largely
redundant to the educational benefits
achieved through significant public,
State, and local government input
during the development of the County’s
subarea plan. The Otay Ranch Plan was
also reviewed by the public and sections
of the plan have been adopted by the
San Diego County Board of Supervisors.
We have developed close partnerships
with the County, CDFG and private
landowners and other stakeholders
through the development of the
County’s subarea plan and the Otay
Ranch Plan, plans that incorporate
appropriate protections and
management for vernal pool habitat
areas, and their constituent PCEs,
essential for the conservation of the San
Diego fairy shrimp. Those protections
are consistent with statutory mandates
under section 7 of the Act to avoid
adverse modification or destruction of
critical habitat, and go beyond that
prohibition by including active
management and protection of essential
habitat areas. By excluding these lands
from designation, we are eliminating an
essentially redundant layer of regulatory
review for projects covered by the
County’s subarea plan and helping to
preserve our ongoing partnerships with
the County and other stakeholders and
to encourage new partnerships with
other landowners and jurisdictions.
Those partnerships, and the landscape
level, multiple-species conservation
planning efforts they promote, are
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critical for the conservation of the San
Diego fairy shrimp.
We have reviewed and evaluated the
exclusion of approximately 224 ac (90
ha) of lands within the County of San
Diego’s MSCP subarea plan area from
the designation of final critical habitat.
We have determined that the regulatory
benefit of designating those lands in
subunits 5A, 5B and 5H that are covered
by the County’s subarea plan is low
because the essential San Diego fairy
shrimp habitat within the plan area is
already protected and managed or
assured of protection and management
under the subarea plan and Otay Ranch
Plan. The educational and recovery
benefits of critical habitat designation
are also minor and have largely been
achieved through development and
public review of the subarea plan. We
conclude that the minor benefits of
critical habitat designation are
outweighed by the significant
partnership benefits summarized above
that will result from exclusion of the
lands from the final rule.
We, therefore, reaffirm the exclusion
of essential habitat covered by the
County of San Diego subarea plan under
the MSCP under 4(b)(2) of the Act. As
discussed above, the County’s subarea
plan under the MSCP will provide for
significant preservation and
management of habitat features essential
to the conservation of the San Diego
fairy shrimp and will help reach the
recovery goals for this species.
Exclusion Will Not Result in Extinction
of the Species
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We do not believe that the exclusion
of 224 ac (90 ha) from the final
designation of critical habitat for the
San Diego fairy shrimp will result in the
extinction of the species because the
County of San Diego subarea plan under
the MSCP provides for the protection
and management in perpetuity of
essential habitat, including its PCEs, for
the San Diego fairy shrimp within
subunits 5A, 5B, and 5H, as discussed
above. In addition, because the 224 ac
(90 ha) we have excluded from critical
habitat are occupied by San Diego fairy
shrimp, future consultations under
section 7 of the Act that involve these
lands will occur even in the absence of
their designation as critical habitat.
Application of jeopardy standard of
section 7 of the Act provides assurances
that the species will not go extinct.
Management Plans—Exclusions Under
Section 4(b)(2) of the Act
The Irvine Ranch in Orange County
In the 2003 proposed rule to revise
critical habitat, approximately 25 ac (10
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ha) with The Irvine Ranch (previously
identified as the North Ranch Planning
Policy Area) were proposed for
designation. In preparing this revised
final designation, we reanalyzed our
proposal to designate these lands as
critical habitat and determined that the
area has a very limited watershed and
that only 4 ac (2 ha) of this area
contained the PCEs essential to the
conservation of the San Diego fairy
shrimp. After further review of the
conservation actions that are being
implemented and additional measures
being planned, we excluded these 4 ac
(2 ha) from the revised final designation
because the benefits of exclusion
outweigh the benefits of including the
lands in critical habitat.
The Irvine Ranch supports one vernal
pool containing San Diego fairy shrimp.
In contrast to all other vernal pools
where San Diego fairy shrimp are found,
this particular pool occurs in a rock
basin. This rock pool, discovered in
2001, does not appear to have
undergone any negative impacts.
In 1992, the Irvine Company initiated
a partnership with the Nature
Conservancy to develop and implement
a stewardship plan for 35,000 ac (14,164
ha) of what is presently called The
Irvine Ranch to address compatible
public access, habitat management and
restoration (TNC 2007). An additional
11,000 ac (4,452 ha) was donated by the
Irvine Company in 2001. In 2005, all
50,000 ac (20,234 ha) of The Irvine
Ranch were placed under the
responsibility of the Irvine Ranch
Conservancy, a non-profit organization
that was created specifically by the
Irvine Company to protect the lands
within The Irvine Ranch (Irvine Ranch
2007a), with a financial commitment of
$50 million to help protect, restore and
enhance the resources of these lands
(Irvine Ranch 2007b). As noted above,
the 4 ac (2 ha) of essential San Diego
fairy shrimp habitat is included among
the lands managed by the Irvine Ranch
Conservancy.
The mission of the Irvine Ranch
Conservancy is to help protect, restore
and enhance the natural resources of
The Irvine Ranch in perpetuity and to
encourage the creation of new and
diverse opportunities for public
enjoyment and education (IRC 2007a).
The Conservancy’s stewardship
responsibilities include (1) strategies for
habitat protection, restoration and
public access in a manner that ensures
the long-term well-being of the native
habitat and wildlife; (2) hands-on field
work to maintain trails, restore habitat,
and remove invasive weeds; (3) ongoing
biological monitoring to assess the
health of native plants and wildlife; and
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(4) recruitment, training, and use of
volunteers to serve as naturalist-guides
for public hikes, mountain-bike rides
and horse rides, and to assist with other
activities (IRC 2007b). The Irvine Ranch
Conservancy is currently working on a
conservation plan for the Irvine Ranch
wildlands which will formalize their
conservation vision, strategy, and
approach for all the wildlands they
directly manage, including the 4 ac (2
ha) of essential San Diego fairy shrimp
habitat (Olson 2007).
Benefits of Exclusion Outweigh Benefits
of Inclusion
In 2003, when we proposed
designating this vernal pool as critical
habitat we had incomplete information
about the extent to which the area
would be managed for the conservation
of the species. Since that time we have
obtained additional information
regarding the Irvine Ranch
Conservancy’s management strategy for
the Irvine Ranch including actions to
conserve the San Diego fairy shrimp at
the rock pool (Harmsworth and
Associates 2007, p. 8; Olson 2007, p. 1).
The lands are protected by a
conservation easement and secured
from public access, and their permanent
management plan is fully funded by
way of the endowment for the
conservation of the Irvine Ranch
discussed above. Specific conservation
actions that benefit the San Diego fairy
shrimp at this location include the
exclusion of cattle from this area and
the limitations placed on human access
to this area. The sole focus of onsite
management is to avoid any activity that
would negatively impact the pool. Thus,
the regulatory benefits of designating
this area as critical habitat are minimal.
The educational and recovery benefits
of designation are also small and are
largely addressed through the Irvine
Ranch Conservancy’s ongoing
environmental education programs to
promote public understanding and
appreciation of the natural resources on
the Irvine Ranch, summarized above.
By excluding these lands from critical
habitat designation, we are eliminating
an essentially redundant layer of
regulatory review for conservation
projects that may be undertaken to
restore habitat surrounding the vernal
pool (e.g., removal of non-native,
invasive plants) and furthering our
partnership with the Irvine Ranch
Conservancy in preserving the whole of
The Irvine Ranch for future generations.
We have reviewed and evaluated the
exclusion of 4 ac (2 ha) of lands within
the Irvine Ranch from the designation of
final critical habitat. We have
determined that the regulatory benefit of
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designating those lands in subunit 1A is
low because the essential San Diego
fairy shrimp habitat within the subunit
is already permanently protected and
assured of management by the Irvine
Ranch Conservancy. The educational
and recovery benefits of critical habitat
designation are also minor and have
largely been achieved through the Irvine
Ranch Conservancy’s on-going
environmental education programs for
the Irvine Ranch. We conclude that the
minor benefits of critical habitat
designation are outweighed by the
significant partnership benefits
identified in this section and under
Benefits of Excluding Lands within
HCPs and Other Approved Management
Plans that will result from exclusion of
the lands from the final rule.
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Exclusion Will Not Result in Extinction
of the Species
We do not believe that the exclusion
of the 4 ac (2 ha) of land within The
Irvine Ranch from the revised final
designation of critical habitat will result
in the extinction of the San Diego fairy
shrimp because management of The
Irvine Ranch by the Irvine Ranch
Conservancy provides protection of all
the PCEs for the species within
proposed subunit 1A. In addition,
because the 4 ac (2 ha) we have
excluded from critical habitat are
occupied by San Diego fairy shrimp,
future consultations under section 7 of
the Act that involve these lands will
occur even in the absence of their
designation as critical habitat.
Application of jeopardy standard of
section 7 of the Act provides assurances
that the species will not go extinct.
Fairview Park Master Plan in the City
of Costa Mesa
Approximately 62 ac (25 ha) of
Fairview Park were designated as
critical habitat in October 2000 (65 FR
63438). In the 2003 proposed rule to
revise critical habitat, we estimated that
approximately 74 ac (30 ha) of the 208ac (83-ha) Fairview Park contained
features essential to the conservation of
the species. After reanalyzing our 2003
proposal for this subunit, we
determined that, in fact, only 43 ac (17
ha) of land within Fairview Park
support the features essential to the
conservation of the San Diego fairy
shrimp.
Based on our review of conservation
actions being undertaken by the City of
Costa Mesa to benefit the San Diego
fairy shrimp and its essential habitat we
excluded these lands from the revised
final designation because the benefits of
exclusion outweigh the benefits of
including them in critical habitat.
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The 208-acre (83-ha) Fairview Park is
adjacent to the Talbot Nature Preserve,
part of the conserved open space in the
Orange County Central-Coastal NCCP/
HCP. As described below the Master
Plan for Fairview Park provides for
habitat restoration and management
consistent with and complementary to
the Orange County Central-Coastal
NCCP/HCP. Fairview Park supports
seven vernal pool basins covering
approximately 3 ac (1 ha), with the
largest pool covering about 2 ac (1 ha).
Of the seven identified pools in
Fairview Park, three are known to be
occupied by the San Diego fairy shrimp
(City of Costa Mesa 2001, p. C–43). The
vernal pools have been impacted to
some extent by pedestrian traffic,
bicycles, and mowing. Additionally, the
largest vernal pool was previously
impacted by the deposition of fill
material, including asphalt and concrete
(City of Costa Mesa 2001, pp. 7–14).
The Master Plan for restoration of
Fairview Park and its long-term
management was developed in 1998 and
revised in 2001. The Master Plan guides
all natural habitat restoration actions as
well as passive and active public uses.
Actions in the Master Plan that benefit
the San Diego fairy shrimp include, but
are not limited to: (1) Development of a
formalized trail system to avoid
sensitive areas to the extent feasible; (2)
installation of educational signage and
observation platforms in the vernal pool
restoration area; (3) installation of
fencing to protect the vernal pools; and
(4) cessation of mowing within the
vernal pools or, if necessary, mowing
only late in the season after annual forbs
and grasses have set seed (City of Costa
Mesa 2001, p. C–46).
Implementation of the Master Plan,
including the vernal pool restoration,
has been funded since 1994 using a
variety of sources, including $88,000
from the Segerstrom Company (City of
Costa Mesa 2003) and annual budget
allocations from the City totaling
approximately $250,000. In 2007, a
grant for $250,000 was awarded by the
California Department of Parks and
Recreation with a match of $250,000
from the City of Costa Mesa to
implement a trail plan for Fairview
Park. Actions to restore the vernal pools
are planned and implemented by a
qualified biologist holding a valid
section 10(a)(1)(A) permit from the
Service.
Benefits of Exclusion Outweigh Benefits
of Inclusion
We have reviewed and evaluated the
proposed designation of essential
habitat in Fairview Park and have
determined that the benefits of
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excluding critical habitat on 43 ac (17
ha) of land in Fairview Park outweigh
the benefits of designating these lands
as critical habitat.
Critical habitat was designated on
these lands in October 2000 because of
the importance of these vernal pools in
the conservation of the San Diego fairy
shrimp. At the time of the 2000 final
critical habitat rule, implementation of
the Master Plan for Fairview Park was
in its early stages. Since that time, the
City of Costa Mesa and management of
Fairview Park have consistently
demonstrated their commitment to fund
and implement the Master Plan for the
benefit of the San Diego fairy shrimp
and other native species that inhabit the
area, thus ensuring the PCEs identified
as essential to the conservation of the
San Diego fairy shrimp will be
maintained over the long-term. Thus,
the regulatory benefits of designating
this area as critical habitat are minimal.
The educational and recovery benefits
of designation are also small and are
largely addressed through the Fairview
Park Master Plan’s inclusion of
measures to promote public education
and awareness of the park’s sensitive
vernal pool habitat.
By excluding these lands from critical
habitat designation, we are eliminating
an essentially redundant layer of
regulatory review for conservation
projects that may be undertaken to
restore habitat surrounding the vernal
pool habitat (e.g., removal of non-native,
invasive plants) and furthering our
partnership with the City of Costa Mesa
and Fairview Park management to
preserve and protect essential vernal
pool habitat in the park. Excluding
Fairview Park from the revised final
designation sends a clear signal to the
City of Costa Mesa that the Service
actively recognizes and supports the
City’s sustained commitment to restore
and protect the vernal pools at the park.
The Service expects to continue
working in partnership with the City of
Costa Mesa to implement the Master
Plan and, potentially, to include these
lands as part of the reserve system
under the Central-Coastal NCCP/HCP.
We have reviewed and evaluated the
exclusion of 43 ac (17 ha) of lands
within Fairview Park from the
designation of final critical habitat. We
have determined that the regulatory
benefit of designating those lands in
subunit 1B1B is low because the
essential San Diego fairy shrimp habitat
within this subunit is protected and
assured of appropriate management
under the Fairview Park Master Plan.
The educational and recovery benefits
of critical habitat designation are also
minor and are largely met through the
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public education measures included in
the Master Plan and the City’s on-going
efforts to educate the public about the
sensitive natural resources in Fairview
Park. We conclude that the minor
benefits of critical habitat designation
are outweighed by the significant
partnership benefits identified in this
section and under Benefits of Excluding
Lands within HCPs and Other Approved
Management Plans that will result from
exclusion of the lands from this this
final rule.
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Exclusion Will Not Result in the
Extinction of the Species
We do not believe that the exclusion
of 43 ac (17 ha) of land at Fairview Park
from the revised final critical habitat
designation will result in the extinction
of the San Diego fairy shrimp because
the Master Plan provides for active
restoration of what have been degraded
vernal pools, thereby, enhancing the
PCEs for the species. In addition,
because the 43 ac (17 ha) we have
excluded from critical habitat are
occupied by San Diego fairy shrimp,
future consultations under section 7 of
the Act that involve these lands will
occur even in the absence of their
designation as critical habitat.
Application of jeopardy standard of
section 7 of the Act provides assurances
that the species will not go extinct.
Department of Homeland Security
(DHS) Lands (Arnie’s Point, San Diego
County)
In preparing this revised final
designation, we revisited the status of
lands owned by the Department of
Homeland Security (DHS) (formerly
known as Immigration and
Naturalization Service (INS)) in
subunits 5D and 5F. Within the 2003
proposed subunits 5D and 5F, we
removed 174 ac (71 ha) of habitat from
this final designation because these
lands no longer support the PCEs for the
San Diego fairy shrimp. A portion of the
land removed is owned by the DHS and
is located along the U.S./Mexico border.
As a result all DHS–owned land in
subunit 5D was removed because it does
not contain the PCEs; however, 29 ac
(12 ha) remained in subunit 5F. We
excluded the remaining DHS lands (29
ac (12 ha)) in subunit 5F under section
4(b)(2) of the Act as a result of national
security considerations, as described
below.
Section 102 of the Illegal Immigration
Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), Public Law 104–
208 (8 U.S.C. 1103 note 2000), was
enacted as part of the Omnibus
Consolidated Appropriations Act of
1997, and addressed construction of the
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14-Mile Border Fence. Among the
provisions of section 102 is the
authority granted to the Attorney
General of the United States (AG) to
waive the provisions of the Act and of
NEPA ‘‘to ensure the expeditious
construction of barriers and roads
* * *’’ (PL 104–208, 1996; Sec. 102 (c)).
Although DHS was within its authority
to request the AG grant a waiver from
complying with the Act, it did consult
with the Service on impacts associated
with the proposed fence project,
including the preparation of documents
to fulfill its NEPA obligations. In our
biological opinion for the project we
described vernal pool habitat within
subunit 5F as ‘‘poor’’ (Service, 2002, p.
14). A small amount of habitat for the
San Diego fairy shrimp was lost as part
of the border fence construction;
however, the impacts were offset with
the restoration of the vernal pools on
Arnie’s Point (Service 2002; Service
2003). Conservation measures
undertaken by the ACOE and INS
included the installation of a chain link
fence along the inside edge of an
existing perimeter road to prevent
vehicles from driving into the
restoration area; preparation of a
restoration plan for the vernal pools;
and the restoration and management of
the vernal pools on Arnie’s Point. The
INS committed to preserve in perpetuity
INS-owned (now DHS-owned) land
outside the project footprint within
Arnie’s Point, Spring Canyon, and
Wruck Canyon through a transfer of
deed and title to a cooperating entity to
the MSCP (Service 2002; p. 7).
In 2002, the Homeland Security Act
(AHSA) transferred the authority to take
such actions as necessary to construct
the 14-Mile Border Fence to the
Secretary of the DHS. In 2005, the
Secretary of the DHS, under the
authority granted under the HSA and
section 102 of the IIRIRA as amended by
the REAL ID Act of 2005 (P.L. 109–13),
made a determination to waive all
‘‘federal, state, or other laws, regulations
or legal requirements of, deriving from,
or related to the subject of, * * * The
National Environmental Policy Act, the
Endangered Species Act * * *.’’ (70 FR
55623). In light of this determination
(effective on September 22, 2005), there
is no longer a requirement for DHS to
consult with the Service on actions that
may impact federally listed species,
including the San Diego fairy shrimp or
their designated critical habitat, if those
actions are related to the construction or
maintenance or operations of the 14Mile Border Fence.
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Benefits of Exclusion Outweigh Benefits
of Inclusion
We believe that the regulatory benefit
of critical habitat is non-existent in this
case. Although designating critical
habitat in subunit 5F would reflect our
determination that these lands are
essential to the conservation of the San
Diego fairy shrimp, there is no
regulatory requirement for the DHS or
any other Federal agency directly
involved with the construction and
maintenance of the 14-Mile Border
Fence project to consult with us
regarding impacts to the species or its
designated critical habitat.
Furthermore, any educational or
recovery benefits from designation of
lands at Arnie’s point would be minor.
Both the DHS and the ACOE are already
aware of the presence of the San Diego
fairy shrimp and its essential habitat in
these areas as they have previously
consulted with us on impacts to the
species arising from construction of the
project.
In contrast to the lack of regulatory,
educational and recovery benefits of
designation, exclusion of these lands
from critical habitat will further the
national security purposes of the IIRIRA
and the 14-Mile Border Fence Project.
Through enactment of the IIRIRA and
HSA, Congress expressed their intent
that construction of the 14-Mile Border
Fence Project should not be delayed or
impeded by the statutory requirements
of the Endangered Species Act by
granting the Secretary of the Department
of Homeland Security the authority to
waive those requirements. We conclude
that national security benefits of
excluding 29 ac (12 ha) of land in
subunit 5F from critical habitat
outweigh any potential regulatory,
educational or recovery benefits that
would accrue from designation.
Exclusion Will Not Result in Extinction
of the Species
The impacts associated with the 14Mile Border Fence project on the San
Diego fairy shrimp were analyzed and
we found that the conservation and
restoration of the vernal pools at Arnie’s
Point offset these impacts. The vernal
pools at Arnie’s Point will now be
managed for the long-term conservation
of the San Diego fairy shrimp.
Therefore, we do not believe that the
exclusion of 29 ac (12 ha) of land in
subunit 5F will result in the extinction
of the San Diego fairy shrimp.
Economics
Section 4(b)(2) of the Act requires us
to designate critical habitat on the basis
of the best scientific information
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available and to consider the economic
impact on national security and other
relevant impacts of designating a
particular area as critical habitat. We
may exclude areas from critical habitat
upon a determination that the benefits
of such exclusions outweigh the benefits
of specifying such areas as critical
habitat. We cannot exclude such areas
from critical habitat when such
exclusion will result in the extinction of
the species concerned.
Following the publication of the
proposed critical habitat designation,
we conducted an economic analysis to
estimate the potential economic effect of
the designation. The draft economic
analysis (DEA) was made available for
public review on April 8, 2004 (69 FR
18516). We accepted comments on the
draft analysis until May 10, 2004. On
April 3, 2007, we published a notice in
the Federal Register (72 FR 15857)
announcing the reopening of the public
comment period for the 2003 proposed
rule to revise critical habitat (68 FR
19888; April 22, 2003) for the San Diego
fairy shrimp and on the DEA. We
accepted comments and information
until May 3, 2007.
The primary purpose of the DEA is to
estimate the potential economic impacts
associated with the designation of
critical habitat for the San Diego fairy
shrimp. This information is intended to
assist the Secretary in making decisions
about whether the benefits of excluding
particular areas from the designation
outweigh the benefits of including those
areas in the designation. This economic
analysis considers the economic
efficiency effects that may result from
the designation, including habitat
protections that may be co-extensive
with the listing of the species. It also
addresses distribution of impacts,
including an assessment of the potential
effects on small entities and the energy
industry. This information can be used
by the Secretary to assess whether the
effects of the designation might unduly
burden a particular group or economic
sector.
This draft analysis focuses on the
direct and indirect costs of the rule.
However, economic impacts to land use
activities can exist in the absence of
critical habitat. These impacts may
result from, for example, local zoning
laws, State and natural resource laws,
and enforceable management plans and
best management practices applied by
other State and Federal agencies.
Economic impacts that result from these
types of protections are not included in
the analysis as they are considered to be
part of the regulatory and policy
baseline.
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The DEA examined activities taking
place both within and adjacent to the
areas ‘‘considered, but not proposed’’
and the areas formally proposed for
critical habitat designation (68 FR
19888, April 22, 2003). It estimates
impacts based on activities that are
‘‘reasonably foreseeable’’ including, but
not limited to, activities that are
currently authorized, permitted, or
funded, or for which proposed plans are
currently available to the public.
Accordingly, the analysis bases
estimates on activities that are likely to
occur within a 20-year time frame, from
when the proposed rule became
available to the public (68 FR 19888,
April 22, 2003). The 20-year time frame
was chosen for the analysis because, as
the time horizon for an economic
analysis is expanded, the assumptions
on which the projected number of
projects and cost impacts associated
with those projects are based become
increasingly speculative.
Due to the amount of time that
elapsed between the publication of the
DEA and the publication of this final
rule, we developed an addendum to the
DEA to investigate how the potential
economic effects may have changed
since the DEA was made available to the
public (69 FR 18516, April 8, 2004). The
addendum does not recreate the
analysis provided in the DEA or
recalculate all the results; rather it is
designed to assess the primary
implications of the changes that have
taken place since the publication of the
DEA. The addendum recognizes that the
DEA was based on 2002 dollars and also
calculates costs in 2002 dollars to
enable direct comparison with the draft
analysis. The DEA estimated
$53,042,532 in economic costs
associated with the conservation of the
San Diego fairy shrimp over the next 20
years or approximately $5.2 million
annually. Most of the impact results
from private land development avoiding
areas containing vernal pool soils and
topography. At the time the DEA was
conducted, we looked at the total cost
of listing and critical habitat without
attributing which costs were related
specifically to the designation of critical
habitat (incremental impacts). The
addendum estimates that 44 percent or
$23,140,688 of the cost is attributable to
the critical habitat designation because
Federal action agencies already
routinely initiate consultations with the
Service for projects that potentially
affect San Diego fairy shrimp and its
vernal pool habitat; however, the critical
habitat designation may provide new
information about the extent or range of
linked watershed areas, resulting in
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consultations or project modifications
that may not have occurred in the
absence of critical habitat designation.
The final addendum further estimates
that future evaluations of destruction or
adverse modification of critical habitat
under section 7 of the Act in accordance
with the statutory standard recognized
by the Gifford Pinchot decision could
have either negligible impacts or could
increase the economic impacts reported
in the draft analysis if additional
conservation above that provided under
the existing regulatory baseline is
required to ensure that the affected
critical habitat unit would remain
functional (or retain the current ability
for the PCEs to be functionally
established) to serve its intended
conservation role for the species.
However, the addendum states that the
implications of this relatively recent
court decision are difficult to quantify at
this time. The addendum estimates that
the total cost attributable to the critical
habitat designation ($23,140,688) could
be $5,228,000 higher based on updated
market data, but could be $324,484
lower based on the decision not to
relocate the San Diego International
Airport, a cost that was factored in to
the DEA. The addendum assumes that
the baseline regulatory context within
the City of San Diego would not change
in the aftermath of the recent Bartel
district court decision enjoining the
City’s incidental take permit for the San
Diego fairy shrimp. Any prediction
about possible economic effects of the
court’s decision on the baseline
regulatory context for the San Diego
fairy shrimp within the City would be
speculative because the future of the
City’s subarea plan and conservation
efforts with regard to the San Diego fairy
shrimp are currently unknown. On a
cost per unit basis, the largest portion of
forecast costs is expected to occur in
Unit 3, the San Diego, Inland Valley.
The DEA estimated $37,462,742 in
economic costs for this unit and the
addendum estimates that $16,365,476 of
the cost is attributable to the critical
habitat designation. Unit 3, the San
Diego, Inland Valley has a higher
portion of forecast costs because this
area is not covered by an HCP and
therefore has no baseline regulatory
context for the San Diego fairy shrimp,
meaning that there are no local or state
laws that would restrict the
development of these lands for the San
Diego fairy shrimp if this species was
not federally listed. These costs are
attributable to lost commercial and
industrial development potential. We do
not find the economic costs to be
disproportionate because similar costs
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are potentially occurring in other areas
included in critical habitat, but have not
been calculated due to existing HCPs or
regulations that are in place which
conserve the San Diego fairy shrimp and
its habitat. Therefore we have not
considered these areas for exclusion
based on the economic analysis.
A copy of the DEA, associated
addendum, and with supporting
documents are included in our
supporting record and may be obtained
by contacting U.S. Fish and Wildlife
Service, Carlsbad Fish and Wildlife
Office (see ADDRESSES section) or for
downloading from the Internet at
https://www.fws.gov/carlsbad.
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Required Determinations
Regulatory Planning and Review
In accordance with Executive Order
(E.O.) 12866, this document is a
significant rule in that it may raise novel
legal and policy issues. Based on the
DEA looking at all conservation related
effects, $53,042,532 in economic costs
are estimated over the next 20 years or
approximately $5.2 million annually.
Based on the addendum to the DEA,
$23,140,688 is estimated to be
attributable to the critical habitat
designation. The addendum states that
the total cost attributable to the critical
habitat designation could be $5,228,000
higher based on updated market data or
could be $324,484 lower based on the
decision not to relocate the San Diego
International Airport, a cost that was
factored in to the DEA. From an
evaluation of our DEA and addendum
we have determined that the critical
habitat designation will not have an
annual effect on the economy of $100
million or more or affect the economy
in a material way. Due to the tight
timeline for publication in the Federal
Register, the Office of Management and
Budget (OMB) has not formally
reviewed this rule.
Further, E.O. 12866 directs Federal
agencies promulgating regulations to
evaluate regulatory alternatives (OMB
Circular A–4, September 17, 2003).
Under Circular A–4, once an agency
determines that the Federal regulatory
action is appropriate, the agency must
consider alternative regulatory
approaches. Because the determination
of critical habitat is a statutory
requirement under the Act, we must
evaluate alternative regulatory
approaches, where feasible, when
promulgating a designation of critical
habitat.
In developing our designations of
critical habitat, we consider economic
impacts, impacts to national security,
and other relevant impacts under
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section 4(b)(2) of the Act. Based on the
discretion allowable under this
provision, we may exclude any
particular area from the designation of
critical habitat providing that the
benefits of such exclusion outweigh the
benefits of specifying the area as critical
habitat and that such exclusion would
not result in the extinction of the
species. As such, we believe that the
evaluation of the inclusion or exclusion
of particular areas, or a combination of
both, constitutes our regulatory
alternative analysis for designations.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(RFA) (as amended by the Small
Business Regulatory Enforcement
Fairness Act (SBREFA) of 1996),
whenever an agency is required to
publish a notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment
a regulatory flexibility analysis that
describes the effect of the rule on small
entities (i.e., small businesses, small
organizations, and small government
jurisdictions). However, no regulatory
flexibility analysis is required if the
head of an agency certifies the rule will
not have a significant economic impact
on a substantial number of small
entities. The SBREFA amended the RFA
to require Federal agencies to provide a
statement of factual basis for certifying
that the rule will not have a significant
economic impact on a substantial
number of small entities. The SBREFA
amended the RFA to require Federal
agencies to provide a certification
statement of the factual basis for
certifying that the rule will not have a
significant economic impact on a
substantial number of small entities.
Small entities include small
organizations, such as independent
nonprofit organizations; small
governmental jurisdictions, including
school boards and city and town
governments that serve fewer than
50,000 residents; as well as small
businesses. Small businesses include
manufacturing and mining concerns
with fewer than 500 employees,
wholesale trade entities with fewer than
100 employees, retail and service
businesses with less than $5 million in
annual sales, general and heavy
construction businesses with less than
$27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
if potential economic impacts to these
small entities are significant, we
consider the types of activities that
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might trigger regulatory impacts under
this rule, as well as the types of project
modifications that may result. In
general, the term ‘‘significant economic
impact’’ is meant to apply to a typical
small business firm’s business
operations.
To determine if the rule could
significantly affect a substantial number
of small entities, we consider the
number of small entities affected within
particular types of economic activities
(e.g., housing development, grazing, oil
and gas production, timber harvesting).
We apply the ‘‘substantial number’’ test
individually to each industry to
determine if certification is appropriate.
However, the SBREFA does not
explicitly define ‘‘substantial number’’
or ‘‘significant economic impact.’’
Consequently, to assess whether a
‘‘substantial number’’ of small entities is
affected by this designation, this
analysis considers the relative number
of small entities likely to be impacted in
an area. In some circumstances,
especially with critical habitat
designations of limited extent, we may
aggregate across all industries and
consider whether the total number of
small entities affected is substantial. In
estimating the number of small entities
potentially affected, we also consider
whether their activities have any
Federal involvement.
Designation of critical habitat only
affects activities conducted, funded, or
permitted by Federal agencies. Some
kinds of activities are unlikely to have
any Federal involvement and so will not
be affected by critical habitat
designation. In areas where the species
is present, Federal agencies already are
required to consult with us under
section 7 of the Act on activities they
fund, permit, or implement that may
affect San Diego fairy shrimp. Federal
agencies also must consult with us if
their activities may affect critical
habitat. Designation of critical habitat,
therefore, could result in an additional
economic impact on small entities due
to the requirement to reinitiate
consultation for ongoing Federal
activities.
Small businesses in the land
development and real estate industry
and small governments are likely to be
affected by the rule. According to the
DEA, three small businesses in the land
development and real estate industry
are likely to be affected annually,
representing less than 1 percent of the
total number of small businesses in the
industry for the study area. These
affected small businesses are likely to
experience an impact of 17 percent on
their annual revenues as a result of the
vernal pool critical habitat designation.
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The DEA encompassed both those areas
‘‘considered, but not proposed’’ and the
areas formally proposed for critical
habitat designation. We anticipate the
economic impacts to be less than those
discussed in the DEA because the area
we are designating is smaller than the
area analyzed in the DEA. For the small
governments in the study area, about 8
percent of the total number of small
governments in the study area may be
affected by this action. Affected small
governments are likely to experience
impacts that range from 1 to 5 percent
of the median revenue of small
governments in the study area.
However, for a small government to
experience more than 1 percent impact
to its annual revenues, the project must
be funded and completed in a year.
Transportation infrastructure projects
will typically span 3 to 10 years,
suggesting that most of the small
governments in this analysis will
experience closer to a 1 percent impact
to their annual revenues.
In general, two different mechanisms
in section 7 consultations could lead to
additional regulatory requirements for
the approximately three small
businesses, on average, that may be
required to consult with us each year
regarding their project’s impact on San
Diego fairy shrimp and its habitat. First,
if we conclude, in a biological opinion,
that a proposed action is likely to
jeopardize the continued existence of a
species or adversely modify its critical
habitat, we can offer ‘‘reasonable and
prudent alternatives.’’ Reasonable and
prudent alternatives are alternative
actions that can be implemented in a
manner consistent with the scope of the
Federal agency’s legal authority and
jurisdiction, that are economically and
technologically feasible, and that would
avoid jeopardizing the continued
existence of listed species or result in
adverse modification of critical habitat.
A Federal agency and an applicant may
elect to implement a reasonable and
prudent alternative associated with a
biological opinion that has found
jeopardy or adverse modification of
critical habitat. An agency or applicant
could alternatively choose to seek an
exemption from the requirements of the
Act or proceed without implementing
the reasonable and prudent alternative.
However, unless an exemption were
obtained, the Federal agency or
applicant would be at risk of violating
section 7(a)(2) of the Act if it chose to
proceed without implementing the
reasonable and prudent alternatives.
Second, if we find that a proposed
action is not likely to jeopardize the
continued existence of a listed animal or
plant species or adversely modify its
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critical habitat, we may identify
discretionary conservation
recommendations designed to minimize
or avoid the adverse effects of a
proposed action on listed species or
critical habitat, help implement
recovery plans, or develop information
that could contribute to the recovery of
the species.
Based on our experience with
consultations under section 7 of the Act
for all listed species, virtually all
projects—including those that, in their
initial proposed form, would result in
jeopardy or adverse modification
determinations in section 7
consultations—can be implemented
successfully with, at most, the adoption
of reasonable and prudent alternatives.
These measures, by definition, must be
economically feasible and within the
scope of authority of the Federal agency
involved in the consultation. We can
only describe the general kinds of
actions that may be identified in future
reasonable and prudent alternatives.
These are based on our understanding of
the needs of the species and the threats
it faces, as described in the final listing
rule and this critical habitat designation.
Within the final critical habitat units,
the types of Federal actions or
authorized activities that we have
identified as potential concerns are:
(1) Regulation of activities affecting
waters of the United States by the Corps
under section 404 of the Clean Water
Act;
(2) Regulation of water flows,
damming, diversion, and channelization
implemented or licensed by Federal
agencies;
(3) Road construction and
maintenance and right-of-way
designation by Federal Highway
Administration (FHWA);
(4) Regulation of airport improvement
activities by the Federal Aviation
Administration;
(5) Hazard mitigation and postdisaster repairs funded by the FEMA;
and
(6) Land development or other
activities funded or permitted by the
EPA, U.S. Department of Energy, or any
other Federal agency.
Federal involvement, and thus section
7 consultations, would be limited to a
subset of the area designated. The most
likely Federal involvement could
include Army Corps of Engineers
permits, permits we may issue under
section 10(a)(1)(B) of the Act, and
FHWA funding for road improvements.
Further, it is likely that a developer or
other project proponent could modify a
project or take measures to protect San
Diego fairy shrimp. The kinds of actions
that may be included if future
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reasonable and prudent alternatives
become necessary include conservation
set-asides, management of competing
nonnative species, restoration of
degraded habitat, and regular
monitoring. These are based on our
understanding of the needs of the
species and the threats it faces, as
described in the final listing rule and
proposed critical habitat designation.
These measures are not likely to result
in a significant economic impact to
project proponents.
In summary, we have considered
whether this final designation of critical
habitat for the San Diego fairy shrimp
would result in a significant economic
impact on a substantial number of small
entities. Only three small real estate and
development businesses, or less than 1
percent of the total businesses in the
industry, are likely to be affected
annually by the final designation. Only
1 small government, or 8 percent of the
small governments within designated
critical habitat, is likely to be affected by
the final designation and economic
impacts are estimated to be only
approximately 1 percent of annual
revenues. Therefore, we certify that the
designation of critical habitat for the
San Diego fairy shrimp will not result in
a significant impact on a substantial
number of small business entities.
Please see the ‘‘Economic Analysis’’
section above, the DEA, and the final
addendum for a more detailed
discussion of potential economic
impacts. A regulatory flexibility analysis
is not required.
Small Business Regulatory Enforcement
Fairness Act (5 U.S.C. 801 et seq.)
Under SBREFA, this rule is not a
major rule. Our detailed assessment of
the economic effects of this designation
is described in the economic analysis.
Based on the effects identified in the
economic analysis, we believe that this
rule will not have an annual effect on
the economy of $100 million or more,
will not cause a major increase in costs
or prices for consumers, and will not
have significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based enterprises to compete
with foreign-based enterprises. Refer to
the final economic analysis for a
discussion of the effects of this
determination.
Executive Order 13211
On May 18, 2001, the President issued
an Executive Order (E.O. 13211; Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use) on regulations that
significantly affect energy supply,
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distribution, and use. E.O. 13211
requires agencies to prepare Statements
of Energy Effects when undertaking
certain actions. While this final rule to
designate critical habitat for San Diego
fairy shrimp is a significant regulatory
action under E.O. 12866 in that it may
raise novel legal and policy issues, we
do not expect it to significantly affect
energy supplies, distribution, or use.
The DEA concluded that no project
modifications are anticipated to occur in
any energy producing industries from
the implementation of this rule.
Furthermore, no additional energy use
is likely to be required as a result of
designation of critical habitat for the
San Diego fairy shrimp. Based on
information from Federal agencies
involved in the construction of new
energy production facilities or the
maintenance of energy facilities, there is
no expected impact on energy
producing industries over the next 20
years (Economic and Planning Systems,
Inc. 2004, p. 76). Because of the
minimal impact of this designation we
conclude that this action is not a
significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), we make the following findings:
(a) This rule will not produce a
Federal mandate. In general, a Federal
mandate is a provision in legislation,
statute, or regulation that would impose
an enforceable duty upon State, local, or
Tribal governments, or the private
sector, and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or [T]ribal
governments’’ with two exceptions. It
excludes ‘‘a condition of Federal
assistance.’’ It also excludes ‘‘a duty
arising from participation in a voluntary
Federal program,’’ unless the regulation
‘‘relates to a then-existing Federal
program under which $500,000,000 or
more is provided annually to State,
local, and [T]ribal governments under
entitlement authority,’’ if the provision
would ‘‘increase the stringency of
conditions of assistance’’ or ‘‘place caps
upon, or otherwise decrease, the Federal
Government’s responsibility to provide
funding,’’ and the State, local, or Tribal
governments ‘‘lack authority’’ to adjust
accordingly. At the time of enactment,
these entitlement programs were:
Medicaid; AFDC work programs; Child
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Nutrition; Food Stamps; Social Services
Block Grants; Vocational Rehabilitation
State Grants; Foster Care, Adoption
Assistance, and Independent Living;
Family Support Welfare Services; and
Child Support Enforcement. ‘‘Federal
private sector mandate’’ includes a
regulation that ‘‘would impose an
enforceable duty upon the private
sector, except (i) a condition of Federal
assistance or (ii) a duty arising from
participation in a voluntary Federal
program.’’
The designation of critical habitat
does not impose a legally binding duty
on non-Federal Government entities or
private parties. Under the Act, the only
regulatory effect is that Federal agencies
must ensure that their actions do not
destroy or adversely modify critical
habitat under section 7. While nonFederal entities that receive Federal
funding, assistance, or permits, or that
otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Furthermore, to the
extent that non-Federal entities are
indirectly impacted because they
receive Federal assistance or participate
in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would
not apply, nor would critical habitat
shift the costs of the large entitlement
programs listed above onto State
governments.
(b) Based on our DEA and final
addendum, for the small governments in
the study area, less than one unique
small government is likely to be affected
annually or about eight percent of the
total number of small governments in
the study area. Affected small
governments are likely to experience
impacts that fall in the range of one
percent to five percent of the median
revenue of small governments in the
study area. However, for a small
government to experience more than
one percent impact to its annual
revenues, the project must be funded
and completed in a year. Transportation
infrastructure projects will typically
span anywhere from 3 to 10 years,
suggesting that most of the small
governments in the analysis will
experience closer to a one percent
impact to their annual revenues from
San Diego fairy shrimp critical habitat
designation. Therefore, we do not
believe that this rule will significantly
or uniquely affect small governments
because it will not produce a Federal
mandate of $100 million or greater in
any year, that is, it is not a ‘‘significant
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70691
regulatory action’’ under the Unfunded
Mandates Reform Act. The designation
of critical habitat imposes no obligations
on State or local governments. As such,
a Small Government Agency Plan is not
required.
Takings
In accordance with E.O. 12630
(Government Actions and Interference
with Constitutionally Protected Private
Property Rights), we have analyzed the
potential takings implications of
designating critical habitat for San Diego
fairy shrimp in a takings implications
assessment. The takings implications
assessment concludes that this
designation of critical habitat for San
Diego fairy shrimp does not pose
significant takings implications for
lands within or affected by the
designation.
Federalism
In accordance with E.O. 13132
(Federalism), this rule does not have
significant Federalism effects. A
Federalism assessment is not required.
In keeping with Department of the
Interior and Department of Commerce
policy, we requested information from,
and coordinated development of,
critical habitat designation with
appropriate State resource agencies in
California. We received comments from
California Department of Fish and Game
(CDFG); those comments and our
responses are included in the Summary
of Comments and Recommendations
section of this final rule. The
designation may have some benefit to
these governments because the areas
that contain the features essential to the
conservation of the species are more
clearly defined, and the primary
constituent elements of the habitat
necessary to the conservation of the
species are specifically identified. This
information does not alter where and
what federally sponsored activities may
occur. However, it may assist local
governments in long-range planning
(rather than having them wait for caseby-case section 7 consultations to
occur).
Civil Justice Reform
In accordance with E.O. 12988 (Civil
Justice Reform), the Office of the
Solicitor has determined that the rule
does not unduly burden the judicial
system and that it meets the
requirements of sections 3(a) and 3(b)(2)
of the Order. We have designated
critical habitat in accordance with the
provisions of the Act. This revised final
rule uses standard property descriptions
and identifies the primary constituent
elements within the designated areas to
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assist the public in understanding the
habitat needs of the San Diego fairy
shrimp.
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.)
This rule does not contain any new
collections of information that require
approval by OMB under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.). This rule will not impose
recordkeeping or reporting requirements
on State or local governments,
individuals, businesses, or
organizations. An agency may not
conduct or sponsor, and a person is not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
National Environmental Policy Act
(NEPA) (42 U.S.C. 4321 et seq.)
It is our position that, outside the
jurisdiction of the Circuit Court of the
United States for the Tenth Circuit, we
do not need to prepare environmental
analyses as defined by NEPA (42 U.S.C.
4321 et seq.) in connection with
designating critical habitat under the
Act. We published a notice outlining
our reasons for this determination in the
Federal Register on October 25, 1983
(48 FR 49244). This assertion was
upheld by the Circuit Court of the
United States for the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d
1495 (9th Cir. 1995), cert. denied 516
U.S. 1042 (1996)).
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Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations
with Native American Tribal
Governments’’ (59 FR 22951), Executive
Order 13175, and the Department of the
Interior’s manual at 512 DM 2, we
readily acknowledge our responsibility
to communicate meaningfully with
recognized Federal Tribes on a
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government-to-government basis. We
have determined that there are no Tribal
lands occupied at the time of listing that
contain the features essential for the
conservation, and no Tribal lands that
are unoccupied areas that are essential
for the conservation of the San Diego
fairy shrimp. Therefore, critical habitat
for the San Diego fairy shrimp has not
been designated on Tribal lands.
References Cited
A complete list of all references cited
in this rulemaking is available upon
request from the Field Supervisor,
Carlsbad Fish and Wildlife Office (see
ADDRESSES).
Author(s)
The primary author of this package is
the staff of the Carlsbad Fish and
Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Regulation Promulgation
Accordingly, we amend part 17,
subchapter B of chapter I, title 50 of the
Code of Federal Regulations, as set forth
below:
I
PART 17—[AMENDED]
1. The authority citation for part 17
continues to read as follows:
I
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
2. In § 17.95(h), revise the entry for
‘‘San Diego Fairy Shrimp (Branchinecta
sandiegonensis)’’ to read as follows:
I
§ 17.95
Critical habitat—fish and wildlife.
*
*
*
*
(h) Crustaceans
*
*
*
*
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*
*
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San Diego Fairy Shrimp
(Branchinecta sandiegonensis)
(1) Critical habitat units are depicted
for Orange and San Diego counties,
California, on the maps below.
(2) The primary constituent elements
of critical habitat for the San Diego fairy
shrimp are:
(i) Vernal pools with shallow to
moderate depths (2 in (5 cm) to 12 in
(30 cm)) that hold water for sufficient
lengths of time (7 to 60 days) necessary
for incubation, maturation, and
reproduction of the San Diego fairy
shrimp, in all but the driest years;
(ii) Topographic features
characterized by mounds and swales
and depressions within a matrix of
surrounding uplands that result in
complexes of continuously, or
intermittently, flowing surface water in
the swales connecting the pools
described in paragraph (2)(i) of this
entry, providing for dispersal and
promoting hydroperiods of adequate
length in the pools (i.e., the vernal pool
watershed); and
(iii) Flat to gently sloping topography,
and any soil type with a clay component
and/or an impermeable surface or
subsurface layer known to support
vernal pool habitat (including Carlsbad,
Chesterton, Diablo, Huerhuero, Linne,
Olivenhain, Placentia, Redding, and
Stockpen soils).
(3) Critical habitat does not include
manmade structures (such as buildings,
aqueducts, runways, roads, and other
paved areas) and the land on which they
are located existing within the legal
boundaries on the effective date of this
rule.
(4) Critical habitat map units. Data
layers defining map units were created
using a base of U.S. Geological Survey
7.5′ quadrangle maps, and the critical
habitat units were then mapped using
UTM coordinates.
(5) Note: Index map (Map 1) follows:
BILLING CODE 4310–55–P
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(6) Unit 1: Orange County, California.
From USGS 1:24, 000 quadrangle map
Newport Beach.
(i) Subunit 1C. Land bounded by the
following UTM NAD27 coordinates
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(E,N): 412805, 3721810; 412694,
3721593; 412668, 3721631; 412633,
3721638; 412589, 3721661; 412539,
3721674; 412521, 3721676; 412436,
3721693; 412465, 3721807; 412524,
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3721907; 412616, 3721871; 412643,
3721844; 412677, 3721827; 412744,
3721820; 412805, 3721810.
(ii) Note: Map of Unit 1, Subunit 1C
(Map 2) follows:
E:\FR\FM\12DER2.SGM
12DER2
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(7) Unit 2: San Diego County,
California. From USGS 1:24, 000
quadrangle map Encinitas.
(i) Subunit 2G. Land bounded by the
following UTM NAD27 coordinates
(E,N): 470300, 3663348; 470301,
3663346; 470323, 3663284; 470356,
3663198; 470366, 3663172; 470382,
3663133; 470388, 3663119; 470399,
VerDate Aug<31>2005
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3663092; 470399, 3663092; 470408,
3663065; 470418, 3663034; 470424,
3663019; 470434, 3663002; 470442,
3662980; 470447, 3662960; 470459,
3662925; 470476, 3662876; 470527,
3662739; 470531, 3662733; 470573,
3662699; 470596, 3662675; 470596,
3662661; 470590, 3662625; 470584,
3662600; 470568, 3662600; 470548,
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3662600; 470500, 3662727; 470500,
3662779; 470500, 3662800; 470492,
3662800; 470472, 3662800; 470430,
3662912; 470400, 3662991; 470400,
3663000; 470397, 3663000; 470343,
3663144; 470300, 3663252; 470300,
3663328; 470300, 3663330.
(ii) Note: Map of Unit 2, Subunit 2G
(Map 3) follows:
E:\FR\FM\12DER2.SGM
12DER2
70697
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(8) Unit 3: San Diego County,
California. From USGS 1:24, 000
quadrangle maps San Marcos, San
Pasqual, and Ramona.
(i) Subunit 3A. Land bounded by the
following UTM NAD27 coordinates
(E,N): 482519, 3667481; 482522,
3667490; 482746, 3667403; 482743,
3667398; 482702, 3667300; 482600,
3667300; 482600, 3667232; 482556,
3667127; 482419, 3667185; 482436,
3667237; 482433, 3667249; 482361,
3667282; 482404, 3667370; 482467,
3667341; 482489, 3667400; 482500,
3667400; 482500, 3667430.
(ii) Subunit 3C. Land bounded by the
following UTM NAD27 coordinates
(E,N): 482054, 3666630; 481931,
3666341; 481800, 3666394; 481800,
3666400; 481786, 3666400; 481600,
3666476; 481600, 3666500; 481542,
3666500; 481586, 3666600; 481600,
3666600; 481600, 3666631; 481672,
3666793. Land bounded by the
following UTM NAD27 coordinates
(E,N): 481457, 3666290; 481750,
3666164; 481792, 3666269; 481822,
3666258; 481888, 3666230; 481888,
3666188; 481900, 3666135; 481900,
3666128; 481900, 3666100; 481908,
3666100; 481910, 3666093; 481926,
3666044; 481938, 3666006; 481954,
3665952; 481953, 3665951; 481872,
3665932; 481893, 3665863; 481726,
3665813; 481717, 3665831; 481700,
3665878; 481700, 3665900; 481692,
3665900; 481662, 3665987; 481637,
3666057; 481623, 3666077; 481600,
3666087; 481600, 3666100; 481572,
3666100; 481571, 3666100; 481406,
3666174; 481444, 3666261; 481455,
3666286.
(iii) Subunit 3D. Land bounded by the
following UTM NAD27 coordinates
(E,N): 482905, 3666600; 482943,
3666600; 482951, 3666576; 482878,
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3666400; 482844, 3666400; 482800,
3666539; 482800, 3666566.
(iv) Subunit 3E.1. Land bounded by
the following UTM NAD27 coordinates
(E,N): 505832, 3655634; 505833,
3655626; 505920, 3655402; 506333,
3654967; 506504, 3655015; 506619,
3655015; 506795, 3655157; 507417,
3654906; 507417, 3654593; 507713,
3654398; 507614, 3654262; 506880,
3654385; 506410, 3654601; 505906,
3654692; 505398, 3655020; 505000,
3655164; 505000, 3655250; 505000,
3655500; 505000, 3655532; 505068,
3655630; 505199, 3655620; 505259,
3655600; 505403, 3655674; 505514,
3655610; 505534, 3655573; 505660,
3655633; 505665, 3655636; 505665,
3655636; 505692, 3655667; 505811,
3655671; 505832, 3655634; 505832,
3655634.
(v) Subunit 3E.2. Land bounded by
the following UTM NAD27 coordinates
(E,N): 509149, 3655266; 509295,
3655337; 509429, 3655206; 509321,
3655061; 509275, 3655000; 509250,
3655000; 509250, 3654973; 509174,
3654924; 509203, 3654625; 508642,
3654684; 508347, 3654484; 508311,
3654514; 508344, 3654563; 508583,
3654776; 508577, 3654914; 508488,
3654973; 508013, 3654934; 508029,
3655012; 507918, 3655209; 507485,
3655284; 507301, 3655340; 507261,
3655424; 507203, 3655544; 508301,
3655340; 508379, 3655228; 508429,
3655157; 508444, 3655152; 508646,
3655084; 508760, 3655311; 509003,
3655196; 509131, 3655258.
(vi) Subunit 3E.3. Land bounded by
the following UTM NAD27 coordinates
(E,N): 510101, 3654200; 510140,
3654178; 510198, 3654185; 510244,
3654214; 510292, 3654240; 510317,
3654246; 510342, 3654205; 510330,
3654166; 510323, 3654121; 510325,
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3654076; 510321, 3654007; 510314,
3654000; 510300, 3654000; 510300,
3653984; 510250, 3653938; 510250,
3653938; 510210, 3653900; 510200,
3653900; 510152, 3653953; 510148,
3653968; 510158, 3654004; 510110,
3654061; 510023, 3654160; 510062,
3654196; 510098, 3654200; 510100,
3654200; 510100, 3654200. Land
bounded by the following UTM NAD27
coordinates (E,N): 511334, 3655370;
511340, 3655365; 511345, 3655353;
511397, 3655274; 511404, 3655265;
511416, 3655273; 511460, 3655300;
511473, 3655300; 511500, 3655262;
511500, 3655250; 511500, 3655218;
511500, 3655214; 511331, 3655102;
511310, 3655088; 511300, 3655099;
511300, 3655100; 511299, 3655100;
511292, 3655107; 511250, 3655150;
511208, 3655192; 511200, 3655200;
511200, 3655265; 511250, 3655310;
511299, 3655354; 511333, 3655371.
(vii) Subunit 3E.4. Land bounded by
the following UTM NAD27 coordinates
(E,N): 512552, 3654788; 512561,
3654778; 512553, 3654759; 512542,
3654734; 512535, 3654677; 512533,
3654565; 512532, 3654547; 512531,
3654515; 512530, 3654422; 512485,
3654420; 512487, 3654359; 512313,
3654385; 512139, 3654363; 511954,
3654363; 511937, 3654353; 511935,
3654350; 511874, 3654257; 511806,
3654242; 511802, 3654342; 511873,
3654405; 511946, 3654429; 511947,
3654432; 511948, 3654430; 512095,
3654525; 512106, 3654533; 512441,
3654750; 512442, 3654750; 512443,
3654750; 512500, 3654787; 512500,
3654785; 512517, 3654799; 512532,
3654810; 512533, 3654809.
(viii) Note: Map of Unit 3, Subunits
3A, 3C, and 3D (Map 4) follows:
BILLING CODE 4310–55–P
E:\FR\FM\12DER2.SGM
12DER2
(ix) Note: Map of Unit 3, Subunits
3E.1, 3E.2, 3E.3, and 3E.4 (Map 5)
follows:
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(9) Unit 4: San Diego County,
California. From USGS 1:24, 000
quadrangle maps Del Mar, La Jolla, and
La Mesa.
(i) Subunit 4A/B. Land bounded by
the following UTM NAD27 coordinates
(E,N): 485317, 3645035; 485298,
3645039; 485274, 3645039; 485259,
3645035; 485245, 3645032; 485244,
3645032; 485241, 3645032; 485226,
3645028; 485213, 3645026; 485209,
3645025; 485187, 3645020; 485173,
3645017; 485153, 3645012; 485139,
3645009; 485128, 3645009; 485114,
3645012; 485101, 3645018; 485090,
3645027; 485078, 3645035; 485065,
3645043; 485052, 3645052; 485033,
3645066; 485019, 3645074; 485009,
3645081; 485001, 3645086; 484987,
3645095; 484971, 3645103; 484957,
3645107; 484940, 3645108; 484923,
3645108; 484912, 3645106; 484901,
3645102; 484897, 3645098; 484890,
3645093; 484886, 3645088; 484884,
3645085; 484883, 3645077; 484886,
3645067; 484890, 3645055; 484899,
3645041; 484906, 3645034; 484915,
3645027; 484921, 3645018; 484929,
3645005; 484935, 3644996; 484943,
3644981; 484947, 3644970; 484947,
3644958; 484945, 3644947; 484939,
3644936; 484933, 3644928; 484925,
3644922; 484916, 3644917; 484904,
3644916; 484891, 3644921; 484873,
3644929; 484860, 3644939; 484860,
3644939; 484850, 3644950; 484841,
3644961; 484829, 3644979; 484822,
3644989; 484817, 3644997; 484812,
3645003; 484806, 3645012; 484796,
3645023; 484795, 3645024; 484785,
3645030; 484771, 3645032; 484758,
3645034; 484741, 3645032; 484729,
3645030; 484715, 3645026; 484709,
3645024; 484704, 3645022; 484697,
3645018; 484691, 3645012; 484688,
3645008; 484685, 3645004; 484675,
3644990; 484670, 3644981; 484665,
3644967; 484662, 3644959; 484659,
3644953; 484656, 3644947; 484651,
3644936; 484650, 3644934; 484639,
3644920; 484633, 3644912; 484629,
3644906; 484622, 3644899; 484615,
3644896; 484605, 3644894; 484600,
3644893; 484589, 3644893; 484575,
3644897; 484561, 3644903; 484550,
3644908; 484539, 3644916; 484531,
3644929; 484523, 3644951; 484520,
3644957; 484518, 3644963; 484517,
3644969; 484515, 3644975; 484512,
3644991; 484507, 3645006; 484498,
3645018; 484491, 3645021; 484490,
3645022; 484487, 3645023; 484472,
3645024; 484459, 3645023; 484458,
3645023; 484458, 3645023; 484450,
3645023; 484426, 3645025; 484397,
3645030; 484378, 3645037; 484367,
3645047; 484358, 3645060; 484352,
3645072; 484349, 3645083; 484350,
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3645096; 484357, 3645102; 484368,
3645107; 484379, 3645111; 484393,
3645112; 484410, 3645110; 484414,
3645108; 484414, 3645108; 484429,
3645101; 484441, 3645097; 484451,
3645092; 484460, 3645085; 484472,
3645078; 484486, 3645069; 484498,
3645062; 484498, 3645062; 484512,
3645058; 484515, 3645057; 484520,
3645057; 484529, 3645056; 484544,
3645055; 484564, 3645053; 484586,
3645053; 484600, 3645054; 484618,
3645060; 484632, 3645062; 484634,
3645062; 484634, 3645062; 484636,
3645063; 484646, 3645065; 484649,
3645066; 484650, 3645066; 484665,
3645068; 484691, 3645073; 484704,
3645078; 484714, 3645087; 484718,
3645095; 484720, 3645102; 484721,
3645109; 484721, 3645119; 484721,
3645123; 484720, 3645131; 484715,
3645143; 484708, 3645157; 484701,
3645163; 484691, 3645171; 484683,
3645177; 484669, 3645185; 484662,
3645189; 484651, 3645194; 484650,
3645195; 484649, 3645196; 484647,
3645199; 484637, 3645201; 484622,
3645206; 484621, 3645208; 484620,
3645208; 484620, 3645209; 484607,
3645222; 484602, 3645230; 484598,
3645243; 484595, 3645261; 484592,
3645283; 484589, 3645300; 484589,
3645300; 484588, 3645313; 484587,
3645331; 484582, 3645350; 484578,
3645361; 484573, 3645370; 484564,
3645376; 484555, 3645381; 484543,
3645385; 484531, 3645386; 484523,
3645385; 484510, 3645382; 484502,
3645378; 484487, 3645371; 484478,
3645370; 484465, 3645367; 484449,
3645365; 484440, 3645365; 484429,
3645366; 484419, 3645373; 484412,
3645379; 484409, 3645388; 484406,
3645399; 484406, 3645403; 484406,
3645404; 484406, 3645404; 484406,
3645407; 484408, 3645413; 484413,
3645418; 484416, 3645426; 484423,
3645430; 484427, 3645432; 484432,
3645436; 484440, 3645439; 484451,
3645448; 484458, 3645454; 484465,
3645459; 484471, 3645465; 484476,
3645472; 484479, 3645476; 484483,
3645490; 484483, 3645497; 484481,
3645508; 484476, 3645519; 484470,
3645526; 484459, 3645530; 484447,
3645535; 484422, 3645543; 484412,
3645546; 484406, 3645547; 484389,
3645553; 484377, 3645559; 484367,
3645572; 484363, 3645578; 484362,
3645585; 484363, 3645594; 484368,
3645599; 484368, 3645599; 484369,
3645600; 484372, 3645605; 484377,
3645611; 484380, 3645626; 484382,
3645635; 484386, 3645643; 484386,
3645644; 484387, 3645655; 484387,
3645663; 484387, 3645664; 484385,
3645677; 484382, 3645688; 484371,
3645700; 484363, 3645706; 484348,
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70701
3645713; 484335, 3645718; 484318,
3645720; 484307, 3645718; 484297,
3645717; 484289, 3645713; 484283,
3645711; 484274, 3645709; 484265,
3645712; 484255, 3645715; 484245,
3645723; 484244, 3645723; 484237,
3645728; 484219, 3645734; 484209,
3645732; 484197, 3645729; 484186,
3645724; 484177, 3645720; 484167,
3645715; 484155, 3645708; 484143,
3645699; 484130, 3645694; 484115,
3645691; 484104, 3645693; 484093,
3645702; 484085, 3645711; 484077,
3645718; 484074, 3645730; 484076,
3645740; 484083, 3645747; 484098,
3645753; 484110, 3645754; 484123,
3645755; 484135, 3645754; 484149,
3645752; 484160, 3645755; 484167,
3645758; 484173, 3645761; 484178,
3645765; 484182, 3645769; 484185,
3645774; 484191, 3645785; 484199,
3645795; 484205, 3645802; 484212,
3645811; 484220, 3645818; 484229,
3645823; 484238, 3645822; 484241,
3645821; 484244, 3645820; 484250,
3645816; 484256, 3645810; 484258,
3645804; 484262, 3645801; 484264,
3645799; 484267, 3645796; 484270,
3645794; 484277, 3645788; 484292,
3645778; 484307, 3645773; 484325,
3645771; 484343, 3645773; 484353,
3645775; 484362, 3645778; 484376,
3645781; 484384, 3645782; 484396,
3645780; 484407, 3645778; 484417,
3645773; 484425, 3645770; 484442,
3645764; 484445, 3645762; 484454,
3645753; 484460, 3645744; 484467,
3645739; 484475, 3645734; 484485,
3645731; 484491, 3645730; 484499,
3645727; 484504, 3645722; 484512,
3645718; 484518, 3645714; 484524,
3645705; 484526, 3645693; 484527,
3645686; 484524, 3645666; 484521,
3645660; 484515, 3645649; 484507,
3645632; 484505, 3645617; 484506,
3645610; 484510, 3645602; 484511,
3645600; 484512, 3645600; 484512,
3645600; 484512, 3645600; 484515,
3645597; 484521, 3645593; 484528,
3645590; 484538, 3645589; 484548,
3645583; 484556, 3645574; 484566,
3645563; 484571, 3645552; 484577,
3645534; 484581, 3645520; 484587,
3645507; 484590, 3645496; 484594,
3645482; 484600, 3645459; 484604,
3645442; 484610, 3645431; 484615,
3645423; 484621, 3645410; 484629,
3645399; 484631, 3645397; 484631,
3645397; 484632, 3645396; 484637,
3645392; 484643, 3645387; 484647,
3645382; 484647, 3645382; 484650,
3645378; 484661, 3645369; 484674,
3645356; 484687, 3645347; 484700,
3645335; 484704, 3645332; 484723,
3645320; 484737, 3645313; 484751,
3645305; 484769, 3645292; 484789,
3645285; 484806, 3645275; 484810,
3645274; 484817, 3645270; 484827,
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3645268; 484835, 3645267; 484840,
3645268; 484847, 3645269; 484853,
3645274; 484857, 3645279; 484860,
3645287; 484865, 3645298; 484871,
3645306; 484879, 3645314; 484885,
3645324; 484891, 3645331; 484899,
3645342; 484907, 3645352; 484916,
3645357; 484924, 3645358; 484935,
3645357; 484945, 3645354; 484950,
3645345; 484957, 3645338; 484965,
3645330; 484970, 3645324; 484976,
3645317; 484985, 3645304; 484993,
3645296; 484996, 3645293; 485007,
3645285; 485015, 3645282; 485021,
3645281; 485031, 3645280; 485035,
3645280; 485044, 3645280; 485056,
3645279; 485065, 3645279; 485076,
3645278; 485093, 3645273; 485113,
3645266; 485126, 3645261; 485136,
3645258; 485144, 3645253; 485150,
3645252; 485162, 3645242; 485175,
3645233; 485189, 3645219; 485202,
3645210; 485214, 3645199; 485217,
3645198; 485219, 3645197; 485226,
3645189; 485236, 3645180; 485246,
3645172; 485259, 3645165; 485274,
3645158; 485286, 3645150; 485293,
3645147; 485304, 3645144; 485320,
3645144; 485334, 3645145; 485351,
3645151; 485360, 3645156; 485367,
3645162; 485369, 3645166; 485371,
3645171; 485372, 3645175; 485374,
3645180; 485375, 3645189; 485374,
3645194; 485374, 3645205; 485376,
3645221; 485379, 3645238; 485383,
3645255; 485388, 3645281; 485391,
3645291; 485398, 3645304; 485405,
3645312; 485406, 3645312; 485390,
3645351; 485385, 3645385; 485377,
3645442; 485356, 3645586; 485340,
3645756; 485335, 3645772; 485318,
3645827; 485318, 3645827; 485310,
3645851; 485309, 3645984; 485375,
3646007; 485375, 3646007; 485388,
3646011; 485407, 3646016; 485485,
3646037; 485696, 3646058; 485786,
3646083; 485789, 3646083; 485876,
3646098; 485954, 3646155; 486023,
3646185; 486099, 3646175; 486160,
3646136; 486200, 3646117; 486222,
3646106; 486223, 3646100; 486232,
3646056; 486215, 3645983; 486196,
3645951; 486213, 3645920; 486218,
3645920; 486183, 3645872; 486189,
3645811; 486190, 3645412; 485919,
3645438; 485918, 3645438; 485917,
3645371; 486016, 3645368; 486080,
3645305; 486040, 3645234; 486027,
3645244; 485982, 3645240; 485825,
3645240; 485751, 3645241; 485738,
3645193; 485708, 3645150; 485701,
3645138; 485693, 3645136; 485681,
3645130; 485679, 3645130; 485671,
3645127; 485656, 3645121; 485644,
3645114; 485631, 3645108; 485623,
3645103; 485618, 3645100; 485615,
3645098; 485599, 3645096; 485591,
3645094; 485586, 3645093; 485581,
VerDate Aug<31>2005
16:07 Dec 11, 2007
Jkt 214001
3645092; 485571, 3645092; 485561,
3645095; 485550, 3645099; 485533,
3645100; 485533, 3645100; 485518,
3645103; 485504, 3645104; 485489,
3645102; 485479, 3645100; 485470,
3645097; 485464, 3645092; 485461,
3645088; 485451, 3645078; 485446,
3645072; 485445, 3645070; 485445,
3645069; 485441, 3645060; 485440,
3645059; 485440, 3645058; 485440,
3645052; 485385, 3645047; 485372,
3645046; 485369, 3645046; 485369,
3645044; 485369, 3645023; 485365,
3645017; 485365, 3645016; 485364,
3645016; 485364, 3645016; 485341,
3645027; 485326, 3645032; 485322,
3645033.
(ii) Subunit 4C. Land bounded by the
following UTM NAD27 coordinates
(E,N): 490395, 3629279; 490395,
3629231; 490396, 3629048; 490358,
3628917; 490295, 3628700; 490293,
3628636; 490280, 3628634; 490111,
3628613; 490000, 3628601; 489913,
3628573; 489739, 3628518; 489724,
3628567; 489718, 3628588; 489705,
3628631; 489842, 3628715; 489893,
3628747; 489985, 3628789; 490101,
3628795; 490203, 3628901; 490202,
3628998; 490304, 3629099; 490306,
3629152; 490301, 3629236; 490299,
3629280; 490342, 3629279; 490364,
3629279.
(iii) Subunit 4D. Land bounded by the
following UTM NAD27 coordinates
(E,N): 494410, 3622458; 494410,
3622458; 494415, 3622443; 494429,
3622410; 494425, 3622393; 494409,
3622376; 494394, 3622372; 494374,
3622371; 494341, 3622377; 494327,
3622361; 494325, 3622291; 494300,
3622294; 494300, 3622300; 494250,
3622300; 494226, 3622303; 494227,
3622331; 494234, 3622339; 494242,
3622347; 494240, 3622360; 494228,
3622373; 494210, 3622384; 494200,
3622392; 494200, 3622400; 494192,
3622400; 494186, 3622411; 494180,
3622431; 494100, 3622428; 494102,
3622400; 494100, 3622400; 494100,
3622392; 494093, 3622379; 494071,
3622370; 494044, 3622367; 494024,
3622370; 494006, 3622381; 494000,
3622388; 494000, 3622400; 493991,
3622400; 493979, 3622418; 493969,
3622437; 493839, 3622432; 493839,
3622463; 493839, 3622466; 493839,
3622467; 493839, 3622468; 493867,
3622468; 494023, 3622470; 494092,
3622471; 494099, 3622471; 494417,
3622476; 494417, 3622475; 494417,
3622475. Land bounded by the
following UTM NAD27 coordinates
(E,N): 494403, 3622266; 494430,
3622258; 494439, 3622241; 494444,
3622219; 494433, 3622200; 494400,
3622200; 494400, 3622136; 494399,
3622134; 494389, 3622114; 494300,
3622115; 494300, 3622151; 494308,
PO 00000
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Sfmt 4700
3622175; 494300, 3622214; 494300,
3622265.
(iv) Subunit 4E. Land bounded by the
following UTM NAD27 coordinates
(E,N): 479564, 3643663; 479567,
3643643; 479569, 3643624; 479569,
3643612; 479569, 3643604; 479565,
3643579; 479562, 3643558; 479558,
3643541; 479555, 3643523; 479552,
3643502; 479550, 3643476; 479551,
3643456; 479560, 3643436; 479574,
3643422; 479580, 3643414; 479580,
3643414; 479590, 3643399; 479596,
3643380; 479600, 3643346; 479600,
3643346; 479600, 3643346; 479596,
3643219; 479596, 3643164; 479605,
3643123; 479608, 3643108; 479611,
3643082; 479612, 3643060; 479610,
3643042; 479611, 3643020; 479606,
3643005; 479602, 3642994; 479597,
3642980; 479594, 3642970; 479593,
3642966; 479590, 3642954; 479589,
3642951; 479582, 3642943; 479575,
3642938; 479567, 3642936; 479565,
3642937; 479564, 3642936; 479541,
3642932; 479537, 3642904; 479500,
3642905; 479500, 3643000; 479400,
3643000; 479400, 3643055; 479400,
3643061; 479400, 3643100; 479386,
3643100; 479377, 3643100; 479308,
3643100; 479308, 3643103; 479252,
3643201; 479259, 3643248; 479330,
3643265; 479376, 3643287; 479381,
3643289; 479403, 3643300; 479415,
3643362; 479424, 3643410; 479428,
3643412; 479432, 3643426; 479443,
3643437; 479443, 3643437; 479490,
3643487; 479502, 3643499; 479503,
3643651; 479504, 3643652; 479511,
3643660; 479524, 3643673; 479548,
3643698; 479553, 3643685; 479556,
3643684; 479559, 3643677; 479561,
3643673.
(v) Subunit 4F. Land bounded by the
following UTM NAD27 coordinates
(E,N): 479996, 3643593; 479997,
3643543; 479997, 3643513; 479913,
3643503; 479900, 3643503; 479900,
3643577; 479900, 3643683; 479998,
3643682.
(vi) Subunit 4G. Land bounded by the
following UTM NAD27 coordinates
(E,N): 484021, 3642526; 484021,
3642515; 484019, 3642503; 484019,
3642503; 484015, 3642495; 484008,
3642489; 484005, 3642487; 483999,
3642483; 483988, 3642477; 483978,
3642473; 483969, 3642470; 483965,
3642469; 483952, 3642466; 483943,
3642465; 483931, 3642465; 483921,
3642466; 483909, 3642470; 483898,
3642470; 483891, 3642472; 483881,
3642475; 483862, 3642479; 483847,
3642484; 483832, 3642490; 483823,
3642494; 483823, 3642494; 483814,
3642497; 483795, 3642503; 483778,
3642505; 483756, 3642504; 483742,
3642499; 483727, 3642491; 483712,
3642484; 483696, 3642476; 483682,
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Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
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3642473; 483669, 3642475; 483662,
3642480; 483659, 3642490; 483659,
3642502; 483664, 3642514; 483682,
3642533; 483690, 3642536; 483703,
3642538; 483721, 3642540; 483740,
3642541; 483760, 3642541; 483777,
3642538; 483788, 3642540; 483790,
3642540; 483805, 3642537; 483826,
3642531; 483846, 3642527; 483865,
3642528; 483880, 3642532; 483882,
3642532; 483898, 3642540; 483912,
3642548; 483927, 3642557; 483943,
3642565; 483955, 3642571; 483968,
3642573; 483978, 3642570; 483988,
3642566; 484001, 3642560; 484008,
3642553; 484016, 3642542; 484020,
3642535.
(vii) Subunit 4H. Land bounded by
the following UTM NAD27 coordinates
(E,N): 483842, 3642261; 483853,
3642265; 483867, 3642269; 483879,
3642272; 483892, 3642272; 483905,
3642274; 483912, 3642274; 483917,
3642275; 483933, 3642275; 483948,
3642277; 483964, 3642279; 483976,
3642280; 483993, 3642281; 484005,
3642281; 484013, 3642279; 484023,
3642276; 484028, 3642270; 484030,
3642263; 484030, 3642255; 484029,
3642248; 484025, 3642241; 484020,
3642233; 484014, 3642224; 484002,
3642214; 483985, 3642202; 483972,
3642193; 483953, 3642177; 483939,
3642167; 483933, 3642159; 483933,
3642146; 483939, 3642132; 483948,
3642118; 483954, 3642108; 483955,
3642106; 483955, 3642105; 483934,
3642094; 483873, 3642068; 483839,
3642059; 483835, 3642058; 483834,
3642058; 483819, 3642055; 483809,
3642053; 483796, 3642052; 483747,
3642050; 483677, 3642050; 483628,
3642051; 483601, 3642056; 483596,
3642059; 483549, 3642079; 483543,
3642082; 483549, 3642088; 483558,
3642093; 483570, 3642095; 483580,
3642095; 483589, 3642094; 483597,
3642092; 483606, 3642090; 483607,
3642090; 483607, 3642090; 483635,
3642088; 483682, 3642088; 483719,
3642094; 483754, 3642105; 483783,
3642129; 483796, 3642147; 483797,
3642148; 483803, 3642165; 483806,
3642181; 483810, 3642198; 483814,
3642219; 483818, 3642238; 483823,
3642249; 483824, 3642251; 483832,
3642258; 483841, 3642261.
(viii) Subunit 4I. Land bounded by the
following UTM NAD27 coordinates
VerDate Aug<31>2005
16:07 Dec 11, 2007
Jkt 214001
(E,N): 485100, 3641415; 485231,
3641411; 485237, 3641411; 485445,
3641409; 485450, 3641409; 485450,
3641400; 485444, 3641310; 485444,
3641310; 485438, 3641220; 485369,
3641214; 485290, 3641219; 485258,
3641235; 485211, 3641234; 485143,
3641234; 485111, 3641262; 485101,
3641270; 485069, 3641328; 485056,
3641340; 485041, 3641355; 485022,
3641356; 485015, 3641375; 485004,
3641397; 485000, 3641419; 485019,
3641424; 485035, 3641417; 485036,
3641417; 485039, 3641417.
(ix) Subunit 4J. Land bounded by the
following UTM NAD27 coordinates
(E,N): 485600, 3639788; 485601,
3639788; 485612, 3639787; 485615,
3639782; 485615, 3639781; 485609,
3639777; 485604, 3639774; 485600,
3639771; 485595, 3639769; 485578,
3639758; 485558, 3639749; 485534,
3639741; 485503, 3639730; 485490,
3639724; 485478, 3639714; 485466,
3639709; 485445, 3639701; 485441,
3639700; 485417, 3639692; 485400,
3639687; 485385, 3639682; 485363,
3639673; 485322, 3639658; 485308,
3639654; 485285, 3639648; 485267,
3639644; 485247, 3639637; 485195,
3639619; 485173, 3639614; 485170,
3639614; 485153, 3639615; 485139,
3639618; 485125, 3639622; 485114,
3639632; 485106, 3639643; 485100,
3639655; 485097, 3639660; 485095,
3639672; 485099, 3639680; 485100,
3639681; 485102, 3639685; 485107,
3639693; 485112, 3639703; 485114,
3639705; 485123, 3639716; 485131,
3639722; 485136, 3639730; 485134,
3639744; 485125, 3639756; 485115,
3639770; 485104, 3639781; 485104,
3639787; 485105, 3639787; 485104,
3639797; 485600, 3639797.
(x) Subunit 4K. Land bounded by the
following UTM NAD27 coordinates
(E,N): 486900, 3633200; 486911,
3633200; 486913, 3633170; 486914,
3633158; 486917, 3633125; 486934,
3632893; 486937, 3632893; 486941,
3632892; 486943, 3632892; 486942,
3632891; 486940, 3632890; 486995,
3632852; 486996, 3632831; 486996,
3632805; 486971, 3632804; 486964,
3632804; 486964, 3632819; 486948,
3632822; 486941, 3632873; 486939,
3632873; 486916, 3632876; 486915,
3632877; 486915, 3632877; 486909,
3632877; 486903, 3632877; 486900,
PO 00000
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3632877; 486895, 3632877; 486859,
3632877; 486791, 3632884; 486731,
3632895; 486720, 3632900; 486693,
3632912; 486682, 3632917; 486674,
3632921; 486668, 3632923; 486627,
3632941; 486618, 3632944; 486596,
3632950; 486580, 3632937; 486579,
3632937; 486400, 3632968; 486192,
3633005; 486136, 3633015; 486136,
3633015; 486135, 3633139; 486200,
3633155; 486220, 3633160; 486220,
3633161; 486331, 3633188; 486332,
3633188; 486332, 3633189; 486381,
3633201; 486402, 3633206; 486482,
3633225; 486603, 3633253; 486689,
3633272; 486690, 3633272; 486700,
3633274; 486771, 3633284; 486775,
3633284; 486786, 3633284; 486900,
3633299.
(xi) Subunit 4L. Land bounded by the
following UTM NAD27 coordinates
(E,N): 487340, 3633277; 487340,
3633277; 487361, 3633261; 487346,
3633241; 487346, 3633241; 487346,
3633241; 487298, 3633197; 487280,
3633208; 487280, 3633208; 487280,
3633209; 487268, 3633218; 487200,
3633269; 487196, 3633272; 487160,
3633234; 487100, 3633264; 487073,
3633277; 487065, 3633300; 487062,
3633309; 487053, 3633340; 487147,
3633365; 487147, 3633366; 487152,
3633366; 487204, 3633380.
(xii) Subunit 4M. Land bounded by
the following UTM NAD27 coordinates
(E,N): 487669, 3631049; 487669,
3631036; 487667, 3630972; 487660,
3630780; 487672, 3630772; 487816,
3630687; 487818, 3630675; 487828,
3630556; 487829, 3630556; 488292,
3630338; 488292, 3630320; 488294,
3630143; 488295, 3630029; 488260,
3630028; 488195, 3630027; 488076,
3630043; 487879, 3630039; 487830,
3630081; 487805, 3630102; 487714,
3630177; 487798, 3630210; 487829,
3630273; 487830, 3630336; 487830,
3630388; 487516, 3630559; 487501,
3630568; 487340, 3630655; 487335,
3630674; 487313, 3630766; 487384,
3630777; 487428, 3630783; 487503,
3630920; 487508, 3631141; 487677,
3631228; 487672, 3631125; 487670,
3631078.
(xiii) Note: Map of Unit 4, Subunits
4A/B, 4G, 4H, 4I, and 4J (Map 6)
follows:
BILLING CODE 4310–55–P
E:\FR\FM\12DER2.SGM
12DER2
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
(xiv) Note: Map of Unit 4, Subunits
4C, 4K, 4L and 4M (Map 7) follows:
VerDate Aug<31>2005
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(xv) Note: Map of Unit 4, Subunit 4D
(Map 8) follows:
VerDate Aug<31>2005
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70705
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Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
(xvi) Note: Map of Unit 4, Subunits 4E
and 4F (Map 9) follows:
VerDate Aug<31>2005
16:07 Dec 11, 2007
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70707
BILLING CODE 4310–55–C
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Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
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70708
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
(10) Unit 5: San Diego County,
California. From USGS 1:24, 000
quadrangle maps Imperial Beach, Jamul
Mountains, Otay Mesa, and Otay
Mountain.
(i) Subunit 5A. Land bounded by the
following UTM NAD27 coordinates
(E,N): 506870, 3606405; 506878,
3606405; 506888, 3606405; 506887,
3606404; 506881, 3606394; 506880,
3606392; 506879, 3606390; 506882,
3606388; 506874, 3606348; 506856,
3606282; 506837, 3606194; 506847,
3606090; 506880, 3606025; 506858,
3606009; 506843, 3605998; 506802,
3605981; 506795, 3605978; 506749,
3605974; 506739, 3605981; 506713,
3605998; 506692, 3606035; 506675,
3606077; 506660, 3606147; 506656,
3606157; 506647, 3606180; 506644,
3606186; 506636, 3606200; 506625,
3606220; 506593, 3606288; 506586,
3606303; 506555, 3606368; 506541,
3606400; 506539, 3606405; 506528,
3606429; 506522, 3606487; 506609,
3606517; 506609, 3606518; 506613,
3606522; 506620, 3606526; 506631,
3606530; 506657, 3606530; 506685,
3606523; 506688, 3606523; 506691,
3606524; 506702, 3606526; 506707,
3606529; 506719, 3606537; 506724,
3606543; 506728, 3606550; 506732,
3606567; 506733, 3606573; 506734,
3606582; 506753, 3606589; 506741,
3606620; 506742, 3606626; 506744,
3606633; 506745, 3606642; 506748,
3606650; 506754, 3606656; 506760,
3606661; 506766, 3606664; 506773,
3606667; 506780, 3606666; 506788,
3606665; 506793, 3606660; 506801,
3606654; 506806, 3606648; 506813,
3606638; 506819, 3606631; 506827,
3606625; 506837, 3606621; 506844,
3606619; 506846, 3606618; 506853,
3606616; 506857, 3606614; 506858,
3606461; 506858, 3606449; 506858,
3606449; 506858, 3606436; 506858,
3606427; 506858, 3606405; 506858,
3606405. Excluding land bounded by
the following UTM NAD27 coordinates
(E,N): 506704, 3606405; 506655,
3606405; 506655, 3606405; 506655,
3606400; 506656, 3606300; 506656,
3606200; 506656, 3606186; 506656,
3606186; 506706, 3606186; 506831,
3606187; 506831, 3606252; 506847,
3606275; 506858, 3606290; 506858,
3606290; 506858, 3606372; 506858,
3606392; 506858, 3606405. Land
bounded by the following UTM NAD27
coordinates (E,N): 505791, 3606031;
505841, 3605966; 505884, 3605895;
505914, 3605830; 505935, 3605785;
505950, 3605753; 505951, 3605750;
505964, 3605715; 505973, 3605708;
505983, 3605665; 505863, 3605614;
505847, 3605635; 505834, 3605651;
505825, 3605658; 505797, 3605677;
VerDate Aug<31>2005
16:07 Dec 11, 2007
Jkt 214001
505774, 3605686; 505774, 3605767;
505774, 3605767; 505774, 3605807;
505774, 3606046; 505774, 3606046.
(ii) Subunit 5B. Land bounded by the
following UTM NAD27 coordinates
(E,N): 504332, 3605189; 504347,
3605165; 504372, 3605163; 504405,
3605173; 504429, 3605160; 504432,
3605139; 504454, 3605119; 504474,
3605134; 504505, 3605127; 504533,
3605097; 504559, 3605077; 504597,
3605074; 504629, 3605076; 504630,
3604936; 504630, 3604918; 504629,
3604782; 504627, 3604782; 504627,
3604746; 504626, 3604744; 504627,
3604742; 504626, 3604631; 504603,
3604604; 504587, 3604590; 504573,
3604589; 503692, 3604599; 503641,
3604600; 503620, 3604621; 503508,
3604831; 503453, 3604971; 503470,
3604979; 503500, 3604973; 503517,
3604970; 503525, 3604977; 503534,
3604982; 503556, 3604994; 503626,
3604992; 503626, 3605008; 503626,
3605032; 503628, 3605033; 503628,
3605033; 503705, 3605099; 503742,
3605171; 503743, 3605172; 503754,
3605194. Land bounded by the
following UTM NAD27 coordinates
(E,N): 503241, 3604951; 503260,
3604945; 503260, 3604964; 503275,
3604981; 503314, 3604988; 503319,
3604989; 503389, 3604822; 503508,
3604612; 503537, 3604561; 503567,
3604506; 503620, 3604411; 503620,
3604400; 503619, 3604330; 503617,
3604074; 503617, 3603990; 503609,
3603990; 503569, 3603990; 503464,
3603991; 502923, 3603996; 502813,
3603997; 502813, 3603997; 502800,
3604601; 502800, 3604620; 502799,
3604653; 502800, 3604654; 502820,
3604686; 502830, 3604730; 502835,
3604781; 502836, 3604804; 502994,
3604803; 502991, 3604794; 503003,
3604742; 503041, 3604705; 503064,
3604692; 503074, 3604694; 503104,
3604726; 503111, 3604741; 503137,
3604801; 503208, 3604801; 503208,
3604953.
(iii) Subunit 5C. Land bounded by the
following UTM NAD27 coordinates
(E,N): 505948, 3603807; 505970,
3603764; 505991, 3603750; 506009,
3603736; 505983, 3603699; 505954,
3603652; 505908, 3603585; 505841,
3603550; 505808, 3603538; 505522,
3603537; 505458, 3603536; 505450,
3603546; 505435, 3603553; 505408,
3603570; 505401, 3603574; 505369,
3603601; 505358, 3603624; 505365,
3603650; 505375, 3603667; 505374,
3603667; 505390, 3603794; 505391,
3603794; 505416, 3603798; 505467,
3603821; 505484, 3603845; 505500,
3603876; 505487, 3603903; 505566,
3604008; 505566, 3604011; 505568,
3604010; 505578, 3604030; 505600,
3604057; 505623, 3604065; 505623,
PO 00000
Frm 00062
Fmt 4701
Sfmt 4700
3604065; 505622, 3604070; 505617,
3604088; 505625, 3604130; 505632,
3604141; 505633, 3604141; 505633,
3604141; 505641, 3604152; 505675,
3604184; 505720, 3604211; 505732,
3604218; 505732, 3604218; 505732,
3604218; 505785, 3604243; 505820,
3604252; 505844, 3604235; 505902,
3604197; 505948, 3604161; 505958,
3604137; 505958, 3604117; 505946,
3604091; 505926, 3604057; 505920,
3604041; 505929, 3604037; 505942,
3604028; 505949, 3604021; 505955,
3604011; 505961, 3603997; 505959,
3603982; 505951, 3603973; 505948,
3603966; 505942, 3603961; 505929,
3603951; 505914, 3603946; 505912,
3603945; 505912, 3603928; 505926,
3603866; 505936, 3603840.
(iv) Subunit 5D. Land bounded by the
following UTM NAD27 coordinates
(E,N): 509019, 3602417; 509019,
3602284; 509015, 3602132; 509048,
3602002; 509135, 3601973; 509203,
3602071; 509235, 3602133; 509236,
3602136; 509268, 3602255; 509270,
3602335; 509272, 3602407; 509308,
3602461; 509348, 3602490; 509438,
3602540; 509604, 3602573; 509727,
3602641; 509821, 3602670; 509926,
3602613; 510009, 3602537; 510009,
3602450; 509976, 3602327; 509915,
3602212; 509832, 3602096; 509727,
3601865; 509712, 3601746; 509692,
3601743; 509659, 3601737; 509628,
3601732; 509604, 3601726; 509576,
3601713; 509533, 3601697; 509504,
3601687; 509419, 3601669; 509357,
3601654; 509354, 3601654; 509315,
3601643; 509277, 3601623; 509010,
3601592; 508505, 3601541; 508494,
3601540; 508266, 3601517; 508266,
3601517; 508266, 3601517; 508265,
3601517; 507688, 3601459; 507688,
3601459; 507534, 3601443; 507508,
3601733; 507507, 3601736; 507509,
3601735; 507571, 3601753; 507517,
3601850; 507484, 3601937; 507560,
3601995; 507589, 3602056; 507582,
3602147; 507614, 3602241; 507654,
3602208; 507690, 3602147; 507719,
3602172; 507730, 3602248; 507737,
3602331; 507748, 3602410; 507787,
3602450; 507813, 3602403; 507860,
3602320; 507921, 3602190; 507983,
3602049; 508003, 3602033; 508113,
3601944; 508141, 3601999; 508161,
3602070; 508181, 3602147; 508217,
3602168; 508243, 3602118; 508279,
3602013; 508394, 3601901; 508524,
3601901; 508554, 3601918; 508651,
3601973; 508712, 3602061; 508719,
3602071; 508719, 3602165; 508719,
3602255; 508745, 3602302; 508795,
3602414; 508819, 3602464; 508839,
3602504; 508867, 3602504; 508887,
3602499; 508907, 3602494; 508936,
3602486; 509019, 3602425.
E:\FR\FM\12DER2.SGM
12DER2
mstockstill on PROD1PC66 with RULES2
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
(v) Subunit 5F. Land bounded by the
following UTM NAD27 coordinates
(E,N): 500168, 3603213; 500175,
3603212; 500176, 3603212; 500176,
3603205; 500175, 3603200; 500174,
3603154; 500170, 3603022; 500168,
3602973; 500167, 3602921; 500166,
3602890; 500165, 3602890; 500150,
3602901; 500145, 3602889; 500144,
3602888; 500084, 3602881; 500029,
3602874; 500047, 3602855; 500052,
3602849; 500042, 3602844; 500028,
3602840; 500014, 3602839; 500000,
3602840; 499992, 3602842; 499987,
3602844; 499974, 3602850; 499969,
3602853; 499961, 3602857; 499950,
3602865; 499940, 3602875; 499933,
3602885; 499942, 3602885; 499947,
3602885; 499952, 3602885; 499956,
3602890; 499956, 3602971; 499956,
3602974; 499956, 3602992; 499956,
3603141; 499964, 3603142; 500014,
3603147; 500048, 3603151; 500046,
3603200; 500046, 3603215; 500046,
3603220; 500164, 3603213. Land
bounded by the following UTM NAD27
coordinates (E,N): 499760, 3602958;
499763, 3602950; 499763, 3602887;
499792, 3602887; 499808, 3602860;
499825, 3602835; 499861, 3602824;
499904, 3602816; 499951, 3602808;
499986, 3602804; 500000, 3602800;
500003, 3602796; 500004, 3602796;
500018, 3602793; 500030, 3602787;
500042, 3602779; 500052, 3602769;
500060, 3602758; 500066, 3602745;
500069, 3602731; 500069, 3602728;
500070, 3602718; 500070, 3602716;
500076, 3602703; 500080, 3602689;
500081, 3602676; 500080, 3602662;
500076, 3602648; 500070, 3602636;
500062, 3602624; 500052, 3602614;
500041, 3602606; 500028, 3602600;
500026, 3602600; 500025, 3602597;
500019, 3602585; 500011, 3602573;
500001, 3602564; 500000, 3602563;
499990, 3602556; 499977, 3602550;
499965, 3602546; 499963, 3602527;
499972, 3602500; 499975, 3602477;
499969, 3602456; 499952, 3602435;
499929, 3602421; 499913, 3602434;
499909, 3602430; 499897, 3602422;
499895, 3602421; 499891, 3602411;
499891, 3602373; 499888, 3602336;
499887, 3602329; 499876, 3602304;
499862, 3602296; 499828, 3602282;
499813, 3602276; 499788, 3602265;
499750, 3602262; 499728, 3602264;
499717, 3602275; 499710, 3602283;
499706, 3602313; 499684, 3602337;
499685, 3602340; 499698, 3602361;
499703, 3602395; 499702, 3602396;
499696, 3602408; 499695, 3602410;
499692, 3602422; 499692, 3602436;
499692, 3602444; 499691, 3602448;
499675, 3602476; 499694, 3602512;
499724, 3602552; 499748, 3602585;
499763, 3602614; 499765, 3602639;
VerDate Aug<31>2005
16:07 Dec 11, 2007
Jkt 214001
499763, 3602641; 499745, 3602636;
499706, 3602616; 499662, 3602599;
499641, 3602608; 499629, 3602639;
499623, 3602686; 499599, 3602723;
499595, 3602715; 499598, 3602705;
499600, 3602690; 499598, 3602677;
499594, 3602663; 499592, 3602659;
499591, 3602656; 499588, 3602651;
499580, 3602639; 499577, 3602636;
499577, 3602589; 499586, 3602524;
499588, 3602463; 499563, 3602456;
499538, 3602479; 499502, 3602507;
499483, 3602555; 499471, 3602590;
499437, 3602611; 499431, 3602650;
499429, 3602688; 499407, 3602712;
499395, 3602747; 499389, 3602793;
499385, 3602832; 499373, 3602870;
499351, 3602865; 499347, 3602855;
499328, 3602823; 499318, 3602784;
499302, 3602767; 499276, 3602768;
499254, 3602783; 499225, 3602803;
499224, 3602803; 499224, 3602802;
499232, 3602791; 499238, 3602778;
499242, 3602764; 499247, 3602766;
499260, 3602767; 499267, 3602766;
499274, 3602766; 499278, 3602765;
499281, 3602764; 499288, 3602763;
499292, 3602761; 499294, 3602761;
499306, 3602759; 499318, 3602753;
499330, 3602745; 499340, 3602735;
499348, 3602724; 499353, 3602711;
499357, 3602698; 499358, 3602684;
499358, 3602681; 499358, 3602680;
499360, 3602666; 499358, 3602652;
499355, 3602638; 499350, 3602629;
499361, 3602628; 499374, 3602624;
499387, 3602618; 499398, 3602610;
499407, 3602602; 499409, 3602601;
499416, 3602589; 499422, 3602576;
499425, 3602567; 499426, 3602563;
499427, 3602549; 499426, 3602535;
499422, 3602522; 499416, 3602509;
499411, 3602501; 499417, 3602494;
499425, 3602483; 499428, 3602477;
499431, 3602474; 499441, 3602465;
499449, 3602453; 499455, 3602440;
499458, 3602431; 499459, 3602427;
499460, 3602413; 499459, 3602399;
499455, 3602386; 499449, 3602373;
499441, 3602362; 499431, 3602352;
499424, 3602347; 499425, 3602346;
499460, 3602319; 499485, 3602289;
499501, 3602264; 499532, 3602246;
499549, 3602226; 499553, 3602205;
499550, 3602183; 499555, 3602176;
499555, 3602176; 499559, 3602169;
499561, 3602164; 499565, 3602150;
499566, 3602136; 499565, 3602122;
499561, 3602109; 499558, 3602104;
499555, 3602097; 499547, 3602085;
499537, 3602075; 499526, 3602067;
499513, 3602061; 499500, 3602057;
499486, 3602056; 499472, 3602057;
499459, 3602061; 499446, 3602067;
499434, 3602075; 499429, 3602080;
499422, 3602079; 499408, 3602081;
499395, 3602084; 499382, 3602090;
499371, 3602098; 499361, 3602108;
PO 00000
Frm 00063
Fmt 4701
Sfmt 4700
70709
499353, 3602119; 499347, 3602132;
499346, 3602136; 499343, 3602145;
499342, 3602159; 499343, 3602170;
499343, 3602173; 499347, 3602187;
499353, 3602199; 499360, 3602210;
499359, 3602212; 499351, 3602245;
499356, 3602271; 499347, 3602291;
499323, 3602295; 499298, 3602298;
499278, 3602309; 499269, 3602305;
499256, 3602301; 499242, 3602300;
499228, 3602301; 499215, 3602305;
499202, 3602311; 499190, 3602319;
499181, 3602329; 499176, 3602335;
499184, 3602299; 499187, 3602288;
499176, 3602307; 499174, 3602310;
499156, 3602340; 499154, 3602344;
499137, 3602396; 499134, 3602404;
499133, 3602407; 499113, 3602496;
499110, 3602510; 499107, 3602523;
499106, 3602527; 499105, 3602531;
499082, 3602625; 499077, 3602646;
499075, 3602652; 499075, 3602668;
499072, 3602728; 499072, 3602735;
499071, 3602748; 499075, 3602763;
499088, 3602809; 499090, 3602814;
499096, 3602835; 499115, 3602853;
499119, 3602857; 499137, 3602874;
499163, 3602885; 499198, 3602900;
499200, 3602901; 499215, 3602907;
499243, 3602919; 499245, 3602920;
499251, 3602920; 499308, 3602924;
499316, 3602925; 499327, 3602922;
499373, 3602911; 499437, 3602860;
499440, 3602857; 499457, 3602838;
499463, 3602838; 499558, 3602840;
499558, 3602990; 499661, 3602989;
499737, 3602987. Land bounded by the
following UTM NAD27 coordinates
(E,N): 498628, 3602069; 498638,
3602063; 498692, 3602024; 498727,
3601981; 498745, 3601957; 498752,
3601948; 498759, 3601937; 498766,
3601929; 498767, 3601929; 498780,
3601925; 498793, 3601919; 498804,
3601911; 498814, 3601901; 498822,
3601890; 498828, 3601877; 498832,
3601864; 498832, 3601863; 498832,
3601855; 498868, 3601832; 498873,
3601829; 498923, 3601788; 498966,
3601760; 498973, 3601760; 499043,
3601753; 499149, 3601715; 499155,
3601713; 499221, 3601690; 499266,
3601661; 499266, 3601661; 499307,
3601634; 499343, 3601618; 499343,
3601618; 499325, 3601653; 499324,
3601659; 499324, 3601659; 499320,
3601682; 499346, 3601698; 499389,
3601697; 499424, 3601689; 499449,
3601704; 499483, 3601715; 499517,
3601715; 499532, 3601732; 499547,
3601770; 499559, 3601784; 499585,
3601800; 499608, 3601782; 499633,
3601747; 499659, 3601712; 499714,
3601684; 499763, 3601668; 499792,
3601630; 499824, 3601610; 499838,
3601603; 499848, 3601619; 499896,
3601624; 499940, 3601606; 499958,
3601597; 499984, 3601634; 500021,
E:\FR\FM\12DER2.SGM
12DER2
mstockstill on PROD1PC66 with RULES2
70710
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
3601684; 500044, 3601716; 500045,
3601719; 500045, 3601719; 500089,
3601730; 500190, 3601721; 500242,
3601714; 500245, 3601710; 500249,
3601711; 500249, 3601709; 500267,
3601635; 500267, 3601634; 500274,
3601604; 500294, 3601588; 500303,
3601557; 500308, 3601530; 500323,
3601507; 500342, 3601488; 500340,
3601466; 500334, 3601439; 500341,
3601411; 500350, 3601380; 500375,
3601350; 500380, 3601319; 500372,
3601300; 500372, 3601299; 500369,
3601300; 500352, 3601304; 500322,
3601311; 500298, 3601309; 500279,
3601300; 500274, 3601298; 500267,
3601300; 500248, 3601308; 500211,
3601326; 500184, 3601327; 500163,
3601321; 500163, 3601320; 500154,
3601304; 500152, 3601300; 500149,
3601296; 500133, 3601264; 500120,
3601254; 500108, 3601231; 500107,
3601230; 500107, 3601229; 500104,
3601204; 500064, 3601189; 500030,
3601181; 500003, 3601183; 499982,
3601184; 499924, 3601177; 499905,
3601168; 499878, 3601149; 499852,
3601133; 499822, 3601134; 499757,
3601145; 499711, 3601147; 499651,
3601146; 499590, 3601148; 499557,
3601151; 499556, 3601151; 499540,
3601152; 499512, 3601153; 499500,
3601152; 499471, 3601148; 499429,
3601140; 499380, 3601146; 499345,
3601135; 499317, 3601110; 499269,
3601093; 499249, 3601100; 499239,
3601146; 499227, 3601146; 499194,
3601145; 499158, 3601143; 499137,
3601133; 499129, 3601107; 499124,
3601078; 499098, 3601074; 499074,
3601079; 499061, 3601055; 499065,
3601024; 499064, 3600987; 499049,
3600935; 499018, 3600891; 498982,
3600880; 498970, 3600869; 498914,
3600841; 498851, 3600818; 498757,
3600792; 498667, 3600774; 498571,
3600766; 498528, 3600778; 498484,
3600804; 498435, 3600849; 498407,
3600889; 498376, 3600936; 498349,
3600957; 498309, 3600976; 498270,
3600995; 498249, 3600977; 498217,
3600951; 498210, 3600920; 498202,
3600891; 498203, 3600889; 498204,
3600704; 498208, 3600700; 498208,
3600700; 498208, 3600699; 498221,
3600669; 498234, 3600637; 498233,
3600631; 497938, 3600602; 497938,
3600539; 497930, 3600538; 497768,
3600522; 497762, 3600531; 497744,
3600568; 497727, 3600599; 497726,
3600600; 497711, 3600627; 497687,
3600650; 497647, 3600666; 497616,
3600687; 497606, 3600714; 497602,
3600738; 497622, 3600756; 497656,
3600760; 497697, 3600761; 497738,
3600776; 497761, 3600802; 497790,
3600834; 497827, 3600868; 497842,
3600880; 497864, 3600920; 497917,
VerDate Aug<31>2005
16:07 Dec 11, 2007
Jkt 214001
3601050; 497926, 3601090; 497924,
3601089; 497922, 3601094; 497923,
3601094; 497923, 3601099; 497923,
3601136; 497924, 3601169; 497924,
3601201; 497924, 3601264; 497924,
3601265; 497925, 3601391; 497925,
3601442; 497926, 3601682; 497926,
3601686; 497940, 3601685; 497983,
3601684; 498048, 3601683; 498275,
3601679; 498282, 3601678; 498285,
3601725; 498295, 3601889; 498304,
3602048; 498306, 3602073; 498614,
3602069; 498615, 3602069.
(vi) Subunit 5G. Land bounded by the
following UTM NAD27 coordinates
(E,N): 499163, 3604679; 499168,
3604677; 499169, 3604676; 499169,
3604671; 499174, 3604638; 499175,
3604631; 499177, 3604618; 499175,
3604601; 499173, 3604575; 499176,
3604567; 499190, 3604533; 499200,
3604524; 499227, 3604500; 499242,
3604487; 499250, 3604456; 499251,
3604452; 499286, 3604445; 499299,
3604469; 499543, 3604452; 499556,
3604416; 499565, 3604389; 499629,
3604368; 499699, 3604386; 499700,
3604385; 499744, 3604322; 499744,
3604300; 499745, 3604266; 499747,
3604175; 499748, 3604122; 499748,
3604122; 499749, 3604100; 499750,
3604061; 499739, 3604057; 499700,
3604042; 499648, 3604021; 499618,
3604022; 499549, 3604024; 499533,
3604008; 499525, 3604000; 499500,
3603974; 499440, 3603913; 499439,
3603900; 499431, 3603830; 499429,
3603817; 499404, 3603839; 499398,
3603849; 499369, 3603891; 499356,
3603915; 499337, 3603927; 499328,
3603924; 499305, 3603918; 499263,
3603904; 499237, 3603929; 499238,
3603972; 499247, 3604004; 499245,
3604008; 499242, 3604014; 499239,
3604020; 499237, 3604027; 499236,
3604034; 499235, 3604041; 499235,
3604048; 499236, 3604055; 499237,
3604058; 499228, 3604075; 499190,
3604094; 499200, 3604109; 499218,
3604140; 499258, 3604151; 499259,
3604151; 499270, 3604156; 499292,
3604156; 499325, 3604156; 499377,
3604142; 499427, 3604118; 499460,
3604091; 499487, 3604114; 499517,
3604142; 499557, 3604141; 499570,
3604141; 499593, 3604115; 499622,
3604098; 499646, 3604112; 499648,
3604135; 499644, 3604167; 499640,
3604175; 499620, 3604210; 499579,
3604252; 499575, 3604255; 499557,
3604274; 499551, 3604279; 499533,
3604297; 499474, 3604333; 499452,
3604342; 499412, 3604360; 499376,
3604370; 499328, 3604385; 499258,
3604401; 499240, 3604407; 499213,
3604414; 499162, 3604442; 499150,
3604454; 499138, 3604466; 499124,
3604500; 499124, 3604501; 499123,
PO 00000
Frm 00064
Fmt 4701
Sfmt 4700
3604508; 499118, 3604536; 499111,
3604581; 499110, 3604584; 499109,
3604607; 499108, 3604623; 499108,
3604623; 499107, 3604623; 499106,
3604640; 499103, 3604677; 499103,
3604682; 499120, 3604694; 499120,
3604695; 499121, 3604695. Land
bounded by the following UTM NAD27
coordinates (E,N): 498823, 3603831;
498873, 3603865; 498928, 3603903;
498930, 3603895; 498938, 3603850;
498912, 3603794; 498870, 3603746;
498833, 3603700; 498795, 3603670;
498762, 3603651; 498719, 3603629;
498670, 3603600; 498663, 3603579;
498678, 3603566; 498669, 3603545;
498651, 3603535; 498622, 3603534;
498625, 3603525; 498634, 3603530;
498648, 3603533; 498661, 3603535;
498675, 3603533; 498689, 3603530;
498701, 3603524; 498713, 3603516;
498723, 3603506; 498731, 3603495;
498737, 3603482; 498740, 3603468;
498741, 3603463; 498747, 3603476;
498755, 3603484; 498773, 3603507;
498810, 3603545; 498859, 3603574;
498901, 3603605; 498943, 3603631;
498976, 3603632; 499011, 3603645;
499027, 3603658; 499026, 3603657;
499024, 3603656; 499010, 3603652;
498996, 3603651; 498983, 3603652;
498969, 3603656; 498960, 3603660;
498956, 3603662; 498945, 3603670;
498935, 3603680; 498927, 3603691;
498921, 3603704; 498918, 3603717;
498916, 3603731; 498916, 3603732;
498918, 3603745; 498921, 3603759;
498927, 3603771; 498935, 3603783;
498945, 3603792; 498956, 3603800;
498969, 3603806; 498983, 3603810;
498988, 3603810; 498996, 3603811;
499010, 3603810; 499024, 3603806;
499036, 3603800; 499048, 3603792;
499058, 3603783; 499066, 3603771;
499072, 3603759; 499075, 3603745;
499076, 3603731; 499075, 3603717;
499072, 3603704; 499066, 3603691;
499058, 3603680; 499056, 3603679;
499082, 3603687; 499082, 3603687;
499088, 3603650; 499088, 3603612;
499094, 3603574; 499107, 3603535;
499120, 3603511; 499139, 3603492;
499127, 3603448; 499102, 3603430;
499075, 3603416; 499056, 3603387;
499061, 3603365; 499101, 3603365;
499143, 3603379; 499174, 3603384;
499205, 3603385; 499211, 3603370;
499223, 3603341; 499229, 3603313;
499237, 3603306; 499241, 3603296;
499242, 3603293; 499246, 3603283;
499249, 3603265; 499248, 3603257;
499248, 3603254; 499247, 3603250;
499247, 3603249; 499244, 3603249;
499218, 3603250; 499214, 3603250;
499024, 3603257; 499021, 3603257;
499021, 3603258; 499023, 3603301;
499025, 3603366; 499026, 3603409;
499067, 3603488; 499062, 3603580;
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499036, 3603611; 499033, 3603608;
499030, 3603605; 498978, 3603558;
498955, 3603537; 498939, 3603507;
498935, 3603498; 498891, 3603486;
498787, 3603476; 498783, 3603476;
498784, 3603469; 498796, 3603264;
498780, 3603265; 498746, 3603266;
498638, 3603269; 498631, 3603269;
498450, 3603275; 498389, 3603277;
498348, 3603279; 498341, 3603279;
498341, 3603310; 498341, 3603354;
498340, 3603460; 498340, 3603493;
498339, 3603675; 498466, 3603673;
498564, 3603672; 498745, 3603667;
498786, 3603788; 498788, 3603795;
498793, 3603800; 498800, 3603808;
498818, 3603827. Land bounded by the
following UTM NAD27 coordinates
(E,N): 499520, 3603710; 499537,
3603690; 499502, 3603686; 499500,
3603686; 499465, 3603682; 499465,
3603676; 499467, 3603527; 499468,
3603437; 499470, 3603335; 499470,
3603331; 499475, 3603330; 499515,
3603321; 499527, 3603292; 499528,
3603290; 499542, 3603257; 499546,
3603249; 499537, 3603249; 499468,
3603247; 499445, 3603247; 499443,
3603247; 499367, 3603246; 499358,
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3603246; 499295, 3603248; 499267,
3603249; 499267, 3603249; 499267,
3603250; 499268, 3603254; 499276,
3603292; 499277, 3603296; 499285,
3603334; 499289, 3603354; 499297,
3603389; 499309, 3603417; 499330,
3603436; 499349, 3603447; 499351,
3603462; 499353, 3603474; 499347,
3603487; 499328, 3603492; 499281,
3603507; 499260, 3603569; 499265,
3603615; 499261, 3603624; 499258,
3603652; 499257, 3603663; 499255,
3603681; 499265, 3603698; 499283,
3603709; 499294, 3603710; 499300,
3603714; 499312, 3603709; 499313,
3603709; 499328, 3603706; 499332,
3603704; 499348, 3603695; 499382,
3603690; 499383, 3603690; 499430,
3603695; 499486, 3603704; 499497,
3603706.
(vii) Subunit 5H. Land bounded by
the following UTM NAD27 coordinates
(E,N): 507788, 3609712; 507858,
3609742; 507950, 3609771; 508044,
3609778; 508178, 3609744; 508218,
3609710; 508262, 3609710; 508280,
3609740; 508330, 3609757; 508397,
3609740; 508403, 3609790; 508604,
3609787; 508699, 3609699; 508787,
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3609559; 508746, 3609407; 508557,
3609308; 508392, 3609308; 508090,
3609118; 507643, 3609056; 507269,
3609054; 507257, 3609091; 507269,
3609148; 507269, 3609191; 507290,
3609251; 507329, 3609280; 507389,
3609280; 507367, 3609319; 507310,
3609369; 507310, 3609419; 507338,
3609448; 507401, 3609470; 507382,
3609518; 507394, 3609547; 507391,
3609636; 507388, 3609713.
(viii) Subunit 5I. Land bounded by the
following UTM NAD27 coordinates
(E,N): 522790, 3603588; 522715,
3603505; 522712, 3603500; 522700,
3603500; 522700, 3603479; 522699,
3603478; 522663, 3603371; 522692,
3603132; 522639, 3603116; 522566,
3603131; 522529, 3603165; 522517,
3603225; 522514, 3603355; 522496,
3603446; 522488, 3603478; 522497,
3603494; 522563, 3603563; 522641,
3603627; 522720, 3603689; 522759,
3603708; 522791, 3603699; 522800,
3603685; 522800, 3603617.
(ix) Note: Map of Unit 5, Subunits 5A,
5B, 5C, 5D, and 5H (Map 10) follows:
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(Map 12) follows:
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Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 / Rules and Regulations
*
*
*
*
Dated: November 30, 2007.
Mitch Butler,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 07–5972 Filed 12–11–07; 8:45 am]
*
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70714
Agencies
[Federal Register Volume 72, Number 238 (Wednesday, December 12, 2007)]
[Rules and Regulations]
[Pages 70648-70714]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5972]
[[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
Federal Register / Vol. 72, No. 238 / Wednesday, December 12, 2007 /
Rules and Regulations
[[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 https://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
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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 impa