Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon
Federal RegisterAug 6, 2003
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AI26
Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon
AGENCY:
Fish and Wildlife Service, Interior.
ACTION:
Final rule.
SUMMARY:
We, the Fish and Wildlife Service (Service), designate critical habitat pursuant to the Endangered Species Act of 1973, as amended (Act), for 4 vernal pool crustaceans and 11 vernal pool plants. A total of approximately 1,184,513 ac (417,989 ha) of land falls within the boundaries of designated critical habitat. This estimate reflects the exclusion of National Wildlife Refuge lands and National fish hatchery lands (33,097 ac (13,238 ha)), and State lands within ecological reserves and wildlife management areas (20,933 ac (8,373 ha)) from the final designation. However, the area estimate does not reflect the exclusion of lands within the following California counties: Butte, Madera, Merced, Sacramento, and Solano from the final designation pursuant to section 4(b)(2) of the Act.
This critical habitat designation requires us to consult under section 7 of the Act with regard to actions authorized, funded, or carried out by a Federal agency. Section 4 of the Act requires us to consider economic and other relevant impacts when specifying any particular area as critical habitat. We solicited data and comments from the public on all aspects of the proposed rule, including data on economic and other impacts of the designation.
DATES:
This final rule is effective September 5, 2003.
ADDRESSES:
Comments and materials received, as well as supporting documentation used in the preparation of this final rule, will be available for public inspection, by appointment, during normal business hours at the Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage, Room W-2605, Sacramento, CA 95825.
FOR FURTHER INFORMATION CONTACT:
Arnold Roessler or Jan Knight, at the Sacramento Fish and Wildlife Office address above (telephone 916/414-6600; facsimile 916/414-6710).
SUPPLEMENTARY INFORMATION:
Preamble
Designation of Critical Habitat Provides Little Additional Protection to Species
In 30 years of implementing the ESA, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of conservation resources. The Service's present system for designating critical habitat is driven by litigation rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and Implementing the Act
While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the ESA can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.”
Currently, only 306 species or 25 percent of the 1,211 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,211 listed species through conservation mechanisms such as listing, section 7 consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the States, and the Section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits regarding critical habitat designation, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits and to comply with the growing number of adverse court orders. As a result, the Service's own proposals to undertake conservation actions based on biological priorities are significantly delayed.
The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for additional public participation beyond those minimally required by the APA, the Act, and the Service's implementing regulations, or to take additional time for review of comments and information to ensure the rule has addressed all the pertinent issues before making decisions on listing and critical habitat proposals, due to the risks associated with noncompliance with judicially imposed. This in turn fosters a second round of litigation in which those who will suffer adverse impacts from these decisions challenge them. The cycle of litigation appears endless, is very expensive, and in the final analysis provides little additional protection to listed species.
The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with NEPA, all are part of the cost of critical habitat designation. These costs result in minimal benefits to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.
Background
On the basis of the final economic analysis and other relevant impacts, as outlined under section 4(b)(2) of the Act, certain exclusions have been made, as detailed below. Because of the settlement agreement that requires us to deliver this rule to the
Federal Register
by July 15, 2003, there was insufficient time to revise the rule to fully reflect these exclusions. A technical amendment to the rule to take these areas out of the maps and legal descriptions, as well to change all the
appropriate references in the text of this preamble will be completed as soon as funding allows.
The following counties are excluded from this rule under Section 4(b)(2): Butte, Madera, Merced, Solano, and Sacramento. We find that the benefits of excluding these areas from critical habitat outweigh the benefits of including them. See further discussion under the Section 4(B)(2) analysis subheading below.
Vernal pool crustaceans and plants live in vernal pools (shallow depressions that hold water seasonally), swales (shallow drainages that carry water seasonally), and ephemeral (short-lived) freshwater habitats. None are known to occur in riverine waters, marine waters, or other permanent bodies of water. The vernal pool habitats of the 4 vernal pool crustaceans and 11 plants addressed in this final rule have a discontinuous distribution west of the Sierra Nevada that extends from southern Oregon through California into northern Baja California, Mexico (Holland and Jain 1978, 1988; Eriksen and Belk 1999).
Vernal pools are a unique kind of wetland ecosystem. Central to their distinctive ecology is that they are vernal or ephemeral, occurring temporarily—typically during the spring following fall and winter rains—and then disappearing until the next year. They are wet long enough to be different in character and species composition from the surrounding upland habitats, and yet their prolonged annual dry phase prevents the establishment of species typical of more permanent wetlands. In California, where extensive areas of vernal pool habitat developed over long periods of time, unique suites of species specially adapted to the unusual conditions of vernal pools have evolved. Fish and other predators are among the species excluded by vernal pools' annual drying, so vernal pool communities have developed and flourished in the absence of many predators. California vernal pools are also renowned for their showy displays of wildflowers, blooming in concentric rings about the pools in spring.
Many areas in California and portions of southern Oregon have the combination of environmental conditions that favor the development of vernal pools (Keeley and Zedler 1998). The climate is of a type classified as Mediterranean, with a wet season when rainfall exceeds evaporation, filling the pools, and a dry season when evaporation is greater, drying the pools. Rainfall is relatively meager even in most wet seasons, so erosion by overflowing waters does not dissect the topographic irregularities that form vernal pool basins. Temperatures during the fall and winter wet season are mild, so plants and animals can grow, mature, and reproduce.
A second major factor in the development of vernal pools is soil. Vernal pools form where there is a soil layer below or at the surface that is impermeable or nearly impermeable to water (Smith and Verrill 1998). Precipitation and surface runoff become trapped or “perched” above this layer. In California, the restrictive soil layers underlying vernal pools are of four main types: hardpans, claypans, volcanic flows, and non-volcanic rock. Hardpans are formed by leaching, redeposition, and cementing of silica minerals from high in the soil profile to a lower (“B”) horizon (Hobson and Dahlgren 1998; Smith and Verrill 1998). Claypans are formed by another redeposition process—fine clay particles are transported to the B horizon and accumulate there. Claypans may also be augmented by redeposition of saline or alkaline compounds. Hardpans and claypans both develop gradually over thousands of years, and can be a yard (meter) or more thick. Smith and Verrill (1998) list many of the soil series associated with vernal pools in the Central Valley. Volcanic flows include basaltic lavas and cemented mudflows, and are most common along the lower western slope of the Sierra Nevada. The soil parent material underlying vernal pools greatly influences species composition and hydrologic functioning of the vernal pool (Hanes and Stromberg 1998; Smith and Verrill 1998). Soils beneath vernal pools are extremely variable and may not be the same as soils mapped by soil surveys (Holland and Dain 1990).
A third factor, related to soil and climate, is topography or relief. Vernal pools typically occur in landscapes that, on a broad scale, are shallowly sloping or nearly level, but on a fine scale may be quite bumpy. Complex microrelief results in shallow, undrained depressions that form vernal pools. Some vernal pool landscapes are dotted with numerous rounded soil mounds known as mima mounds (Scheffer 1947). From the air, vernal pool landscapes often show characteristic patterning, produced by plant responses to mound and trough microrelief. This patterning has allowed mapping of vernal pool habitats throughout California's Central Valley and adjacent coastal foothill areas to a scale between 10 and 40 acre units (Holland 1998, 2003).
Vernal pools come in a variety of shapes and sizes, from less than a square yard (1 meter) to 2.5 ac (1 ha) or more. Some larger vernal wetlands, such as the 90 ac (36 ha) Olcott Lake in the Jepson Prairie Preserve in Solano County, are also referred to as playa pools or lakes. Playa pools with high alkalinity are termed alkali sinks. These larger wetlands contain many of the same animals and plants of smaller vernal pools, including many rare, threatened, and endangered species.
Since appropriate combinations of climate, soil, and topography often occur over continuous areas rather than in isolated spots, vernal pools in California, particularly in the Central Valley, tend to occur in clusters called “complexes.” A landscape that supports a vernal pool complex is typically a grassland, with areas of obstructed drainage that form the pools. Vernal pools can also be found in a variety of other habitats, including woodland, desert, chaparral, or pine forest. The pools may be fed or connected by low drainage pathways called “swales.” Swales are often themselves seasonal wetlands that remain saturated for much of the wet season, but may not be inundated long enough to develop strong vernal pool characteristics. Swales, due to their connection to adjacent pools, are considered part of the vernal pool complex.
Vernal pools begin to fill with the fall and winter rains. Before ponding occurs, there is a period during which the soil is wetted and the local water table may rise. Some pools have a substantial watershed that contributes to their water inputs; others may fill almost entirely from rain falling directly into the pool (Hanes and Stromberg 1998). Although exceptions are not uncommon, the watershed generally contributes more to the filling of larger or deeper pools, especially playa pools. Even in pools filled primarily by direct precipitation, Hanes and Stromberg (1998) report that subsurface inflows from surrounding soils can help dampen water level fluctuations during late winter and early spring. Vernal pools exhibit four major phases: (1) The wetting phase, when vernal pool soils become saturated; (2) the aquatic phase, when a perched water table develops and the vernal pool contains water; (3) a water-logged drying phase, when the vernal pool begins losing water as a result of evaporation and loss to the surrounding soils but soil moisture remains high; and (4) the dry phase, when the vernal pool and underlying soils are completely dry (Keeley and Zedler 1998). Upland areas associated with vernal pools are also an important source of nutrients to vernal pool organisms (Wetzel 1975). Vernal pool
habitats derive most of their nutrients from detritus (decaying matter) washed into pools from adjacent uplands, and these nutrients provide the foundation for a vernal pool aquatic community's food chain. Detritus is a primary food source for the vernal pool crustaceans addressed in this rule (Eriksen and Belk 1999). Because vernal pools are mostly rain-fed, they tend to have low nutrient levels and dramatic daily fluctuations in pH, dissolved oxygen, and carbon dioxide (Keeley and Zedler 1998).
Both the amount and timing of rainfall in California and Oregon vary greatly from year to year. As a result, pools may fill to different extents at different times. The duration of ponding of vernal pools also varies, and in certain years some pools may not fill at all. Many characteristics of vernal pool plants and animals result from these organisms' adaptations to the highly variable and unpredictable nature of vernal pools (Holland 1976; Holland and Dains 1990; King
et al.
1996; Hanes and Stromberg 1998).
Compared to vernal pools worldwide, vernal pools in California and Oregon are rich in species composition and contain many species that are endemic to the region (found nowhere else). In addition, while most of California's grasslands are now dominated by nonnative grasses and other introduced plants, vernal pools remain a haven for native species. Invasive nonnative plants have been introduced into California and have spread and reproduced in upland habitats so successfully that it is not unusual for nonnatives to account for a third of the species and more than 90 percent of the biomass in a California grassland. Vernal pools have dramatically resisted this invasion: 75 to 95 percent of plant species found in vernal pools are native, and natives dominate in biomass as well as in number (Holland and Jain 1978; Jokerst 1990; Spencer and Rieseberg 1998). Vernal pool plant communities are able to resist invasion of upland species because of the severe ecological constraints on plants living in vernal pool environments.
The animal communities that live in vernal pools also contain diverse groups of highly specialized species. The freshwater crustacean communities of vernal pools are particularly well developed (Simovich 1998). The most visible crustaceans in vernal pools are the large branchiopods (literally, “gill-foots”), about 27 species in California, of which perhaps 10 are endemic (Helm 1998; Belk and Fugate 2000) and 6 are federally listed as threatened or endangered. The large branchiopods are easily visible to the naked eye, ranging up to 2 inches (in) (5 centimeters (cm)) in length, depending on the species. They include the fairy shrimps (Anostraca), tadpole shrimps (Notostraca), and clam shrimps (Spinicaudata and Laevicaudata). Smaller crustaceans that are common in California vernal pools, many large enough to see without magnification, are water fleas (Branchiopoda-Cladocera), copepods (Copepoda), and seed shrimp (Ostracoda).
Amphibians and many insect species also live in vernal pools. The Pacific tree frog (
Hyla
(
Pseudacris
)
regilla
) and western toad (
Bufo boreas
) are common and abundant in and around vernal pools. Two rarer amphibians native to vernal pools are the California tiger salamander (
Ambystoma californiense
) and the western spadefoot toad (
Scaphiopus
(
Spea
)
hammondii
) (Morey 1998). While dispersing bullfrogs (Rana
catesbeiana
), which are not native to California, are sometimes found in vernal pools, they do not successfully breed there because bullfrog tadpoles require 2 years to mature and cannot survive the dry season. These voracious introduced predators will sometimes be found resting and feeding in vernal pools close to more permanent water, frequently associated with human modifications of the landscape. Fish likewise do not inhabit vernal pools, except where temporarily introduced by humans (
e.g.
, mosquitofish (Gambusia sp.)) or by flooding of permanent waters.
The insect fauna of vernal pools is numerous, varied, and primarily native, including aquatic beetles (Coleoptera-Dytiscidae, Hydrophilidae, Gyrinidae, Halipidae, Hydraenidae); aquatic bugs, including backswimmers (Hemiptera-Notonectidae), water boatmen (Corixidae), water striders (Gerridae), springtails (Collembola), mayflies (Ephemeroptera), dragonflies, and damselflies (Odonata); and various flies with aquatic larvae, including midges (Diptera-Chironomidae), crane flies (Tipulidae) and mosquitoes (Culicidae). Rogers (1998) found that mosquitoes made up less than 2 percent of the total macroscopic invertebrate population in natural and 2-year-old constructed pools, perhaps because many of the other insects listed above are predators. Vernal pool crustaceans are an important food source for a number of aquatic and terrestrial species. Aquatic predators include insects such as backswimmers (Family Notonectidae) (Woodward and Kiesecker 1994), predaceous diving beetles and their larvae (Family Dystictidae), and dragonflies and damselfly larvae (Order Odonate). Vernal pool tadpole shrimp are another significant predator of fairy shrimp (
Branchinecta
spp.).
The plants, invertebrate and vertebrate animals of vernal pools, and vernal pool landscapes in general are important providers of food and habitat for waterfowl, shorebirds, wading birds, toads, frogs, and salamanders (Proctor
et al.
1967; Krapu 1974; Swanson 1974; Morin 1987; Simovich
et al.
1991; Silveira 1996). During the spring, waterfowl feed on vernal pool crustaceans and other invertebrates, which are sources of protein and calcium needed for migration and egg-laying (Proctor
et al.
1967; Silveira 1998). Vernal pool complexes contribute to continuity of wetland habitats along the Pacific Flyway (a major bird migration route). Many species feed or nest near vernal pools; for example, cliff swallows (
Hirundo fulva
) glean mud from vernal pool beds for their nests, lesser nighthawks (
Chordeiles acutipennis
) nest in dry vernal pool beds, burrowing owl (
Athene cunicularia
) and gopher (
Thomomys
spp.) burrows are found in mima mounds, and many species graze or hunt along vernal pool shorelines. Before their populations were nearly eliminated by hunting and habitat alteration, elk (Cervus spp.) and pronghorn antelope (
Antilocarpa americana
) undoubtedly grazed vernal pool landscapes, and have been replaced by cattle. There is additionally evidence that Native Americans in California's Central Valley used vernal pool crustaceans as a food source (Silveira 1998). Fishing net weights found near vernal pools suggest that California's first human populations also made use of vernal pool resources, as do hunters today (Silveira 1998).
Classification of Vernal Pools
The variability of vernal pool types has led many researchers to try and classify these ephemeral habitats. (Holland 1986; Sawyer and Keeler-Wolf 1995; Ferren
et al.
1996; Smith and Verrill 1998). Most of these efforts have focused on classifying vernal pools based on the factors that influence variation in their physical features. Primary physical features that influence vernal pool size, depth, and soil and water chemistry include soil type, geologic formation, and landform. Landforms are physical attributes of the landscape resulting from geomorphological processes such as erosion and deposition, and include features such as alluvial terraces and basins and volcanic mudflows and lava flows.
The types and kinds of species that are found in vernal pools are largely
determined by these physical factors (Holland and Griggs 1976; Zedler 1987; Eng
et al.
1990; Holland and Dains 1990; Simovich 1998). The physical characteristics of the vernal pool influence the life history characteristics of vernal pool species, such as the speed with which a species can mature and reproduce, the amount of soil moisture required for germination of plant seeds or hatching of invertebrate eggs or cysts, as well as tolerance to turbidity, total dissolved solids, and other aspects of vernal pool water chemistry.
Sawyer and Keeler-Wolf (1995) classified vernal pools according to a number of physical, geographic, and biological characteristics. They identified several general vernal pool types , each of which corresponds to the nature of the impermeable layer that underlies the particular vernal pool and assisted that pool to form. The vernal pool types were identified as Northern Hardpan, Northern Claypan, Northern Basalt Flow, Northern Volcanic Mudflow, and Northern Ashflow vernal pools. Northern Hardpan vernal pools are formed on alluvial terraces with silicate-cement soil layers. These pool types are on acidic soils and exhibit well-developed mima mound topography found on the eastern margins of the Central Valley. Northern Claypan vernal pools are formed on impermeable surfaces created by an accumulation of clay particles. These pool types are often found on basin and basin rim landforms and tend to occur in the central portion of the Central Valley and tend to be alkaline. Vernal pools identified as Northern Volcanic Mudflow, Northern Basalt Flow, and Northern Volcanic Ashflow are formed by an impervious bedrock layer of volcanic origin. These pool types are found on the eastern and coastal portions of the Central Valley, and tend to be small and restricted in distribution. Northern Basalt Flow vernal pools occur at greater elevations than other vernal pool types.
The vernal pools in Southern California are associated with several soil series types including but not limited to Huerheuero, Olivenhain, Placentia, Redding, and Stockpen (Bauder and McMillan 1998). These soil types and other similar soil series like other vernal pool bearing soils and geologic formations have a nearly impermeable surface or subsurface soil layer with a flat or gently sloping topography (Service 1998). Due to local topography and geology, the pools are usually clustered into pool complexes (Bauder 1986; Holland and Jain 1988). Pools within a complex are typically separated by distances on the order of meters, and may form dense, interconnected mosaics of small pools or a more sparse scattering of larger pools. The pools within the Santa Rosa Plateau in Riverside County, California are the only known locality for the Southern Basalt Flow Vernal Pools. Other vernal pools and pool complexes within the region, such as those at Skunk Hollow are not currently classified, but some of these pools converge on vernal lakes and others are associated with vernal alkali plains (Keeler-Wolf
et al.
1998).
The vernal pools in the Agate Desert in Southern Oregon are located on alluvial fans capped with a shallow layer of clay loam over cemented hardpan. Other vernal pools within the area include those formed on older basaltic andesite formations such as those found on Table Rock. The vernal pool complexes are characterized by patterned ground with mounds and vernal pools. These pools vary in size from 1 to 30 m (3 to 100 ft) across, and attain a maximum depth of about 30 cm (12 in) (ONHP 1998). This landform is not true desert as it receives 48 cm (19 in) of precipitation annually. The pools within the area support the vernal pool fairy shrimp and other listed vernal pool species such as the endangered Cook's lomatium (
Lomatium cookii
) and large-flowered woolly meadowfoam (
Limnanthes floccosa
ssp.
grandiflora
) (Service 2002).
Vernal Pool Crustacean Background
All of the vernal pool crustacean species addressed in this critical habitat designation have evolved unique physical adaptations to survive in vernal pools. The timing and duration of wet and dry phases can vary significantly from year to year, and in some years, vernal pools may not inundate at all. In order to take advantage of the short inundation phase, vernal pool crustaceans have evolved short reproduction times and high reproductive rates. Most of the crustacean species addressed in this rule hatch within a few days after their habitats fill with water, and can start reproducing within a few weeks (Eng
et al.
1990; Helm 1998; Eriksen and Belk 1999). Vernal pool crustaceans can complete their entire life cycle in a single season, and some species may complete several life cycles. Vernal pool crustaceans can also produce thousands of viable cysts when environmental conditions are favorable.
To survive the prolonged heat and dessication of the vernal pool dry phase, vernal pool crustaceans have developed a dormant stage. After vernal pool crustacean eggs are fertilized in the female's brood pouch, the embryos develop a thick, usually multilayered shell. When embryonic development reaches a late stage, further maturation stops, metabolism is drastically slowed, and the egg, now referred to as a cyst, enters a dormant state called diapause. The cyst is then either dropped to the pool bottom or remains in the brood sac until the female dies and sinks. Once the cyst is desiccated, it can withstand temperatures near boiling (Carlisle 1968), fire (Wells
et al.
1997), freezing, and anoxic (deprived of oxygen) conditions without damage to the embryo. The cyst wall cannot be affected by digestive enzymes, and can be transported in the digestive tracts of animals without harm (Horne 1967). Most fairy shrimp cysts can remain viable in the soil for a decade or longer (Belk 1998).
Although the exact signals that cause crustacean cysts to hatch are unknown, factors such as soil moisture, temperature, light, oxygen, and osmotic pressure may trigger the embryo's emergence from the cyst (Brendonck 1996). Because the cyst contains a well-developed embryo, the animal can quickly develop into a fully mature adult. This allows vernal pool crustaceans to reproduce before the vernal pool enters the dry phase, sometimes within only a few weeks (Helm 1998; Eriksen and Belk 1999). In some species (
e.g.,
vernal pool tadpole shrimp), cysts may hatch immediately without going through a dormant stage, if they are deposited while the vernal pool still contains water. These cysts are referred to as quiescent, and their presence allows the vernal pool crustacean to produce multiple generations in a single wet season as long as their habitat remains inundated.
Another important adaptation of vernal pool crustaceans to the unpredictable conditions of vernal pools is the fact that not all of the dormant cysts hatch in every season. Simovich and Hathaway (1997) found that only 6 percent of San Diego fairy shrimp (
Branchinecta sandiegonensis
) cysts hatched after initial hydration, and only 0.18 percent of Riverside fairy shrimp (
Streptocephalus woottoni
) cysts hatched. The cysts that do not hatch remain dormant and viable in the soil. These cysts may hatch in a subsequent year and form a cyst bank much like the seed bank of annual plants. Based on a review of other studies (Belk 1977; Gallagher 1996; Brendonck 1996), Simovich and Hathaway (1997) concluded that species inhabiting more unpredictable environments, such as smaller or shorter lived pools, are more likely to have a smaller percent of their
cysts hatch after their vernal pool habitats fill with water. This strategy reduces the probability of complete reproductive failure if a vernal pool dries up prematurely. This strategy has been suggested as a mechanism by which rare species may persist in unpredictable environments (Chesson and Warner 1981; Chesson and Huntly 1989; Ellner and Hairston 1994).
Although the vernal pool crustaceans, and particularly the fairy shrimp, addressed in this rule are not often found in the same vernal pool at the same time, when coexistence does occur, it is generally in deeper, longer lived pools (Eng
et al.
1990; Thiery 1991; Gallagher 1996; Simovich 1998). In larger pools, closely related species of fairy shrimp may coexist by hatching at different temperatures, and by developing at different rates (Thiery 1991; Hathaway and Simovich 1996). Vernal pool crustacean species may also be able to coexist by utilizing different physical portions of the vernal pool, or by eating different food sources (Daborn 1978; Hamer and Appleton 1991; Mura 1991; Thiery 1991).
The primary historic dispersal mechanisms for the vernal pool crustaceans probably consisted of large-scale flooding resulting from winter and spring rains and dispersal by migratory birds. As a result of widespread flood control and agricultural water diversion projects developed during the twentieth century, large scale flooding is no longer a major form of dispersal for the vernal pool crustaceans. When being dispersed by migratory birds, the eggs of these crustaceans are either ingested (Krapu 1974; Swanson 1974; Driver 1981; Ahl 1991) and/or they adhere to the bird's legs and feathers and are thereby transported to new habitats. Cysts may also be dispersed by a number of other species, such as salamanders, toads, cattle, and humans (Eriksen and Belk 1999).
The vernal pool crustaceans addressed in this rule are generally confined to habitats that are low to moderate in alkalinity and dissolved salts when compared with other aquatic systems (Eriksen and Belk 1999). Although potentially moderated by soil type, vernal pools are generally unbuffered and exhibit wide fluctuations in pH and dissolved oxygen (Keeley and Zedler 1998). Vernal pool water ion concentrations, such as sodium, potassium, calcium, chlorine, and magnesium, also experience large daily and seasonal variations. These variations are due to the concentration of ions as a result of evaporation, and the dilution of ions with additional rainfall throughout the wet season (Barclay and Knight 1981). How vernal pool crustacean species adapt to these fluctuations in water chemistry varies. Definitive conclusions on why the species has certain water chemistry habitat preferences is unknown due to the anecdotal nature of observations.
This final rule addresses four vernal pool crustaceans: the Conservancy fairy shrimp (
Branchinecta conservatio
), longhorn fairy shrimp (
Branchinecta longiantenna
), vernal pool fairy shrimp (
Branchinecta lynchi
) and the (
Lepidurus packardi
). Conservancy fairy shrimp , longhorn fairy shrimp, and vernal pool fairy shrimp are members of the aquatic crustacean order Anostraca, while the vernal pool tadpole shrimp is a member of the aquatic crustacean order Notostraca. Vernal pool fairy shrimp are found in California and southern Oregon, while the other three shrimp species are found only in California. These species have all evolved similar adaptations to the unique habitat conditions of their vernal pool habitats. The general appearance and life history characteristics of these four species will be described in combination below.
Conservancy fairy shrimp, longhorn fairy shrimp, and vernal pool fairy shrimp (fairy shrimp) have delicate elongate bodies, large stalked compound eyes, and 11 pairs of phyllopods, which are swimming appendages that also function as gills. They swim or glide gracefully upside down by means of complex beating movements that pass in a wavelike anterior-to-posterior direction. Fairy shrimp are filter feeders, and consume algae, bacteria, protozoa, rotifers, and bits of detritus as they move through the water. The second pair of antennae in fairy shrimp adult males are greatly enlarged and specialized for clasping the females during copulation. The females carry eggs in an oval or elongate ventral sac (brood pouch). Once fertilized, the eggs are coated (encysted) with a protective protein layer that allows them to withstand heat, cold, and prolonged dehydration. These dormant embryos are known as cysts. The cysts are either dropped to the pool bottom or remain in the brood pouch until the female dies and sinks. The cysts can remain viable in the soil for decades after deposition (Eriksen and Belk 1999). When the pools refill in the same or subsequent seasons, some but not all of the cysts may hatch (Eriksen and Belk 1999). The cyst bank in the soil may consist of cysts from several years of breeding. The cysts that hatch may do so within days after the vernal pools fill, and the hatchlings rapidly develop into adults within weeks. In pools that persist for several weeks to a few months, fairy shrimp may have multiple hatches during a single season.
Vernal pool tadpole shrimp have dorsal compound eyes, a large shieldlike carapace (shell) that covers most of their body, and a pair of long cercopods or appendages at the end of the last abdominal segment. They are primarily benthic (living on the bottoms of the pools) animals that swim with their legs down. Vernal pool tadpole shrimp climb or scramble over objects, and plow along bottom sediments as they forage for food. Their diet consists of organic detritus and living organisms, such as fairy shrimp and other invertebrates (Fryer 1987). The females disperse their fully developed cysts into the pool, where the cysts are then deposited into the sediment. Like fairy shrimp, vernal pool tadpole shrimp pass the summer months as dormant cysts in the soil. Some of the cysts hatch as the vernal pools are filled with rainwater in the next or subsequent seasons, while other cysts may remain dormant in the soil for many years. When winter rains refill inhabited pools, tadpole shrimp reestablish from dormant cysts and may become sexually mature within 3 to 4 weeks after hatching (Ahl 1991; Helm 1998). Mature adults may be present in pools until the habitats dry up in the spring (Ahl 1991; Gallagher 1996).
Additional information specific to each of the four individual vernal pool crustacean species described in this rule is provided below.
Conservancy Fairy Shrimp
Conservancy fairy shrimp were first described in 1990 by Eng, Belk, and Eriksen. The type specimens were collected in 1982 at Olcott Lake, Solano County, California. Conservancy fairy shrimp are currently known from only eight disjunct areas: Vina Plains and vicinity in southern Tehama and northern Butte County, Jepson Prairie in Solano County, Suisun Slough in southern Solano County, Sacramento National Wildlife Refuge in Glenn County, near Caswell Memorial State Park in Stanislaus County; Haystack Mountain Area in eastern Merced County, San Luis National Wildlife Refuge Complex in central Merced County, and the Mutau Flat area in the Los Padres National Forest area of northern Ventura County. Conservancy fairy shrimp are known from 18 occurrences (California Natural Diversity Database (CNDDB) 2002).
Conservancy fairy shrimp look similar to other fairy shrimp species, but can be distinguished by characteristics of the male second antenna. The second antennae of Conservancy fairy shrimp
males have a distal segment which is about 30 percent shorter than the basal segment, and has a tip bent medially about 90 degrees (Eng et al. 1990). The female brood pouch is tapered at each end, typically extends to abdominal segment 8, and has a terminal opening (Eng et al. 1990). Males may be from 0.6 to 1.0 in (14 to 27 millimeters (mm)) in length, and females have been measured between 0.6 and 1.0 in (14.5 and 23 mm) long.
Further discussion on the life history and habitat requirements of Conservancy fairy shrimp can be found in the final rule to list this species (59 FR 48136).
Longhorn Fairy Shrimp
Longhorn fairy shrimp were first collected in 1937, but were not formally described until 1990 by Eng, Belk, and Eriksen. The type specimen was collected from a sandstone outcrop pool on the Souza Ranch in Contra Costa County, California. Longhorn fairy shrimp are extremely rare, and are only known from three widely separated locations: the Altamont Pass area in Contra Costa and Alameda Counties, the western and northern boundaries of Soda Lake on the Carrizo Plain in San Luis Obispo County, and Kesterson National Wildlife Refuge in the San Joaquin Valley in Merced County. Vernal pool crustacean surveys conducted by Sugnet (1993) found only 3 occurrences of longhorn fairy shrimp out of 3,092 locations surveyed, and Helm (1998) found occurrences of longhorn fairy shrimp in only 9 of 4,008 wetlands sampled.
Longhorn fairy shrimp are distinguished from other fairy shrimp by the male's very long second antenna, which is about twice as long, relative to its body, as the second antenna of other species of
Branchinecta.
Longhorn fairy shrimp antennae range from 0.3 to 0.4 in (6.7 to 10.4 mm) in length (Eriksen and Belk 1999). Females can be recognized by their cylindrical brood pouch, which extends to below abdominal segments 6 or 7. Mature males have been measured between 0.5 to 0.8 in (12 and 21 mm) in length, and females range from 0.5 to 0.8 in (13.3 to 19.8 mm) in length (Eng et al. 1990).
Further discussion of the life history and habitat requirements of longhorn fairy shrimp can be found in the final rule to list this species (59 FR 48136).
Vernal Pool Fairy Shrimp
Vernal pool fairy shrimp were first described by Eng et al. in 1990 from a type specimen that was collected in 1982 at Souza Ranch, Contra Costa County, California. The species occurs in disjunct fragmented habitats distributed across the Central Valley of California from Shasta County to Tulare County and the central and southern coast ranges from northern Solano County to Ventura County, California. Additional disjunct occurrences have been identified in southern California and in Oregon. In Oregon, the species' distribution is limited to the vicinity of an approximately 32 square mile (mi2) 82.9 square kilometer (km2)) area known as the Agate Desert in Jackson County, north of Medford. In southern California, the distribution is equally limited, with populations occurring in three areas in Riverside County.
Vernal pool fairy shrimp are characterized by the presence and size of several bulges on the male's antenna, and by the female's short, pyriform or pear shaped brood pouch. Vernal pool fairy shrimp vary in size, ranging from 0.4 to 1.0 in (11 to 25 mm) in length (Eng et al. 1990).
Vernal pool fairy shrimp are currently found in 27 counties across the Central Valley and coast ranges of California, inland valleys of southern California, and southern Oregon. Although vernal pool fairy shrimp are distributed more widely than most other fairy shrimp species, they are generally uncommon throughout their range and rarely abundant where they do occur (Eng et al. 1990; Eriksen and Belk 1999).
Further discussion of the life history and habitat requirements of vernal pool fairy shrimp can be found in the final rule to list this species (59 FR 48136).
Vernal Pool Tadpole Shrimp
Vernal pool tadpole shrimp were initially described by Simon in 1886 and named
Lepidurus packardi.
After subsequent reclassification by Longhurst (1955), the species was given a subspecies status based primarily on the lack of apparent geographic boundaries between
L. apus
and
L. packardi
populations. Lynch (1972) resurrected
L. packardi
to full species status based on further examination of specimens, and this is the currently accepted taxonomic status of vernal pool tadpole shrimp. Vernal pool tadpole shrimp inhabit sites in California's Central Valley and San Francisco Bay area. The geographic range of this species includes disjunct occurrences found in the Central Valley from Shasta County to northern Tulare County, and in the central coast range from Solano County to Alameda County. Vernal pool tadpole shrimp are known from 160 occurrences (CNDDB 2001).
Vernal pool tadpole shrimp are distinguished by a large, shieldlike carapace, or shell, that covers the anterior half of their body. Vernal pool tadpole shrimp have 30 to 35 pairs of phyllopods, a segmented abdomen, paired cercopods or tail-like appendages, and fused eyes. Vernal pool tadpole shrimp will continue to grow as long as their vernal pool habitats remain inundated, in some cases for 6 months or longer. They periodically shed their shells, which can often be found along the edges of vernal pools where vernal pool tadpole shrimp occur. Mature vernal pool tadpole shrimp range in size from 0.6 to 3.4 in (15 to 86 mm) in length.
Vernal pool tadpole shrimp have relatively high reproductive rates. Ahl (1991) found that fecundity increases with body size. A large female greater than 0.8 in (20 mm) in carapace length could deposit as many as 6 clutches, averaging 32 to 61 eggs per clutch, in a single wet season.
Further discussion of the life history and habitat requirements of vernal pool tadpole shrimp can be found in the final rule to list this species (59 FR 48136).
Vernal Pool Plants Background
The 11 vernal pool plants described in this rule have developed a suite of highly specialized adaptations that allow them to survive in vernal pool habitats. All 11 species are annuals, meaning they germinate, grow, reproduce, and die within a single year. This allows the vernal pool plants to complete their life cycles during the relatively short inundation and drying periods of their vernal pool habitat.
Another adaptation of vernal pool plants is production of dormant seeds. This adaptation allows vernal pool plants to survive the hot summer months in the soil. The seeds may remain viable in the soil for many years. The number of plants present above ground may fluctuate dramatically from year to year. However, much of the population of these species exists as seeds in the soil. Vernal pool plant seeds germinate after winter rains in response to a complex set of environmental cues that are not well understood, but generally include various temperature and soil moisture. Not all of the dormant seeds will germinate in any given year. This strategy reduces the probability of local extirpation if environmental conditions change—for example, if a vernal pool dries up prematurely. It has also been suggested the strategy acts as a mechanism by which rare species may persist in unpredictable environments (Chesson and Warner 1981; Chesson and Huntly 1989; Ellner and Hairston 1994).
Tolerance to inundation differs greatly among species (Zedler 1987). Vernal pool plant zonation, in which characteristic rings of flowers form around vernal pools, is a result of this differential tolerance to inundation. Species that are the least tolerant to inundation grow along the margins of the pools, while those that can tolerate extended periods of inundation grow in the center of the pools.
Information for the vernal pool plants can be found in the final rules to list these species (62 FR 34029; 62 FR 14338; 57 FR 24192; 43 FR 44810) and in the criteria section of this rule. Additional information specific to each of the 11 individual vernal pool plant species described in this rule is provided below.
Limnanthes floccosa ssp. californica
Limnanthes floccosa
ssp.
californica
(Butte County meadowfoam) was first collected in 1917 at a site 10 miles (mi) (16 kilometers (km)) north of Chico (Service 1991b), although it was recognized as a separate subspecies at that time. Kalin-Arroyo (1973) determined that it was a distinct taxon and gave it the scientific name
Limnanthes floccosa
ssp.
californica.
The type locality is in Butte County between Chico and Oroville, near the intersection of State Highway 99 and Shippee Road (Kalin-Arroyo 1973).
Limnanthes floccosa
ssp.
californica
is a small annual of the meadowfoam or false mermaid family (Limnanthaceae). It has erect stems less than 10 in (25 cm) tall. The stem and leaves are densely pubescent (covered with short hairs). The alternate leaves are pinnately compound (divided into distinct segments which are arranged featherlike on either side of a rachis), up to 3 in (8 cm) long, and consist of 5 to 11 leaflets on a long petiole. A single flower arises in the axil (angle between the base of a leaf and the stem) of each upper leaf. The flowers are white with yellow veins, cup or bowl-shaped, and consist of 5 petals, 5 sepals, 5 pistils (female reproductive structures of a flower), and 10 stamens (male reproductive structures of a flower) on a long flower stalk (Kalin-Arroyo 1973; McNeill and Brown 1979; Ornduff 1993b).
Limnanthes floccosa
ssp.
californica
has always been confined to small widely scattered occurrences in northwestern Butte County (Keeler-Wolf
et al.
1998). In her original description, Kalin-Arroyo (1973) mentioned six collections, including the type locality. Five of those were in the areas ranging from the original collection site southeast to Oroville, and the sixth was from Table Mountain north of Oroville. However, James Jokerst (1983) did not find
L. f.
ssp.
californica
on Table Mountain and later suggested that the specimen had been misidentified (Service 1992a).
All 13 of the occurrences described by the California Natural Diversity Database (CNDDB) (2002) had been reported by 1988 (Kalin-Arroyo 1973; McNeill and Brown 1979; Dole 1988; Jokerst 1989). Five were in northern and northeastern Chico near the municipal airport, four (including the type locality) were from the area around Shippee (northwest of Oroville), and three were from southeastern Chico. The other occurrence, northeast of the town of Nord, contained only one plant that was of questionable identity (CNDDB 2002). However, the area indicated would be in the same vicinity as the 1917 collection.
Two occurrences of
Limnanthes floccosa
ssp.
californica
have been extirpated, one each in northern and southeastern Chico (Jokerst 1989; Dole and Sun 1992; Service 1992a; CNDDB 2002). Some of the other 11 extant occurrences have been reduced in distribution (CNDDB 2002).
Limnanthes floccosa
ssp.
californica
normally is found in three types of seasonal wetland habitats: ephemeral drainages (swales), vernal pool depressions in swales, and occasionally around edges of isolated vernal pools (Jokerst 1989). The swales and vernal pools where
L. f.
ssp.
californica
grows are on intermediate fan terraces (Kelley and Associates Environmental Sciences 1992) in annual grasslands with mima mound topography. Large cobbles are present throughout the pools and swales (Jokerst 1989). These pools are associated with Tuscan, Redbluff, Riverbank, and Modesto geologic formations, and most of them occur on soils of the Tuscan-Anita and the Redding-Igo complexes. Anita and Igo soils are confined to the pools and swales. Tuscan and Redding soils are restricted to the mounds. The two soils are underlain by iron-silica cemented and indurated (hardened) hardpan, respectively (Kelley and Associates Environmental Sciences 1993).
Limnanthes floccosa
ssp.
californica
has been observed on Anita clay soils annually regardless of rainfall but appears on Igo soils only in years of above-average rainfall (Kelley and Associates Environmental Sciences 1992a; Crompton 1993; Schonholtz
in litt.
1995), presumably because the former can hold approximately twice as much moisture (Kelley and Associates Environmental Sciences 1993). Confirmed occurrences have been found at 165 to 300 ft (50 to 90 m) in elevation (McNeill and Brown 1979; CNDDB 2002). The habitat associated with
L. f.
ssp.
californica
includes saturated soils and pools with a short lived inundation period.
Further discussion of the life history and habitat characteristics of
Limnanthes floccosa
ssp.
californica
can be found in the final rule to list the species (62 FR 54807).
Lasthenia conjugens
Edward Greene (1888) first described this species as
Lasthenia conjugens
(Contra Costa goldfields), from specimens collected near Antioch, California. Harvey Hall (1914) later lumped it in with
Baeria fremontii
(Fremont's goldfields). Roxana Ferris (1958) proposed the name
Baeria fremontii
var.
conjugens
to recognize the distinctiveness of
L. conjugens.
Finally, Robert Ornduff (1966) restored Greene's original name and rank, returning this species to the genus
Lasthenia.
Lasthenia conjugens
is a showy spring annual in the aster family (Asteraceae). Its stems are 4 to 12 in (10 to 30 cm) tall, somewhat fleshy, and usually are branched. The leaves are opposite and narrow; the lower leaves are entire, but stem leaves have one or two pairs of narrow lobes. The daisylike flower heads are solitary (Greene 1888; Ornduff 1993a).
Twenty extant occurrences of
Lasthenia conjugens
are found widely scattered in small vernal pool areas in Alameda, Contra Costa, Mendocino, Monterey, Napa, and Solano Counties. Of these 20 occurrences, Solano County has 11 small scattered occurrences in a general area east and south of the City of Fairfield. The Santa Barbara County and Santa Clara County occurrences of
L. conjugens
have probably been lost due to habitat alteration (CNDDB 2002). One Napa County site, Milliken Canyon, contained only a single plant in 1987 whether this individual is still in existence is unknown (CNDDB 2002).
Lasthenia conjugens
typically grows in vernal pools, swales, moist flats, and depressions within a grassland matrix (CNDDB 2002). However, several historical collections were from populations growing in the saline-alkaline transition zone between vernal pools and tidal marshes on the eastern margin of the San Francisco Bay (Baye, Service, in litt. 2000a). The herbarium sheet for one of the San Francisco Bay specimens notes that the species also grew in evaporating ponds used to concentrate salt (Baye, in litt. 2000b). The vernal pool types from which this species has been reported are Northern Basalt Flow, Northern Claypan, and Northern Volcanic Ashflow (Sawyer and Keeler-Wolf 1995). The landforms and
geologic formations for sites where
L. conjugens
occurs have not yet been determined. Most occurrences are found at elevations of 6 to 200 ft (2 to 61 m), but the recently discovered Monterey County occurrences are at 400 ft (122 m), and one Napa County occurrence is at 1,460 ft (445 m) elevation (CNDDB 2002).
The soil types that maintain vernal pool habitats for
Lasthenia conjugens
have not yet been identified for most localities. The soil series from which this species is known are Aiken, Antioch, Concepcion, Conejo, Crispin, Haire, Linne, Los Robles, Rincon, Solano, and San Ysidro, plus the Arnold-Santa Ynez, Hambright-rock outcrop, and Los Osos complexes. Soil textures, where known, are clays or loams. At least in Solano County and on the shores of San Francisco Bay,
L. conjugens
grows in alkaline or saline-alkaline sites (Baye, in litt. 2000a, 2000b; CNDDB 2002).
Further discussion on the life history and habitat characteristics of
Lasthenia conjugens
can be found in the final rule to list the species (62 FR 33029; June 18, 1997).
Chamaesyce hooveri
Chamaesyce hooveri
(Hoover's spurge) was originally named
Euphorbia hooveri
based on a specimen collected by Robert Hoover in Yettem, Tulare County (Wheeler 1940). Koutnik (1985) placed the species in the genus
Chamaesyce
as
C. hooveri.
Chamaesyce hooveri
is an annual herb of the spurge family (
Euphorbiaceae
). The species trails along the ground, forming gray-green mats 2 to 40 in (5 to 100 cm) in diameter (Broyles 1987, Stone
et al.
1988). The stems are hairless and contain milky sap. The tiny (0.08 to 0.20 in (2 to 5 mm)) leaves are opposite, rounded to kidney-shaped, with an asymmetric base and a toothed margin. In the genus
Chamaesyce,
the structures that appear to be flowers actually are groups of flowers; each group is referred to as a cyathium (Koutnik 1993).
CNDDB (2002) includes 30 occurrences of
Chamaesyce hooveri.
Of these, one each in Tehama and Tulare Counties are classified as extirpated; two others, in Butte and Tehama Counties, may no longer occur because this species was not observed for 2 consecutive years (Stone
et al.
1988; CNDDB 2002). The Vina Plains of Tehama and Butte Counties contain 14 (54 percent) of the 26 extant occurrences of
C. hooveri
(CNDDB 2002) in an area approximately 35 mi
2
(91 km
2
) in size (Stone
et al.
1988). One other site in the same region is near Chico in Butte County. Seven of the 26 extant occurrences are in the Southern Sierra Foothills Vernal Pool Region, including 5 in the Visalia-Yettem area of Tulare County and 2 in the Hickman-La Grange area of Stanislaus County. Three other occurrences are on the Sacramento National Wildlife Refuge in Glenn County, which is in the Solano-Colusa Vernal Pool Region. The one other extant occurrence is on the Bert Crane Ranch in Merced County, which is within the San Joaquin Valley Vernal Pool Region (Keeler-Wolf
et al.
1998; CNDDB 2002).
Vernal pools from which
Chamaesyce hooveri
has been reported are classified as Northern Hardpan and Northern Claypan vernal pools (Sawyer and Keeler-Wolf 1995). The pools supporting this species vary in size from 0.47 to 600 ac (0.19 to 243 ha), with a median area of 1.43 ac (0.58 ha) (Stone
et al.
1988). Many occurrences consist of multiple pools that vary in area and depth, yet not all pools at a site support
C. hooveri.
Deeper pools apparently provide better habitat for this species because the duration of inundation is longer. This species may occur along the margins or in the deepest portions of the dried pool bed (Stone
et al.
1988; Alexander and Schlising 1997). A particularly important feature of
C. hooveri
microhabitat, at least in the deeper pools, is that it is nearly devoid of other vegetation, and thus competition from other plants is reduced (Stone
et al.
1988).
Vernal pools supporting
Chamaesyce hooveri
occur mostly on alluvial fans or terraces of ancient rivers or streams, with a few on the rim of the Central Valley basin. It is found on a wide variety of soils, ranging in texture from clay to sandy loam. Soil series include Anita, Laniger, Lewis, Madera, Meikle, Riz, Tuscan, Whitney, and Willows. All of these soils may not equally support the habitat requirements for this species, however. For example, in one Vina Plains pool,
C. hooveri
grew primarily in the portion that was underlain by Tuscan loam, but were nearly absent from the portion underlain by Anita clay (Alexander and Schlising 1997).
In the Sacramento Valley, occupied pools are on acidic soils over iron-silica cemented hardpan. Most pools supporting
Chamaesyce hooveri
in the San Joaquin Valley are on neutral to saline-alkaline soils over lime-silica cemented hardpan or claypan (Broyles 1987; Stone
et al.
1988; Sawyer and Keeler-Wolf 1995; CNDDB 2002). Occurrences have been reported from elevations ranging from 85 ft (26 m) in Glenn County to 420 ft (128 m) in Tehama County (CNDDB 2002).
Further discussion on the life history and habitat characteristics of
Chamaesyce hooveri
can be found in the final rule to list the species (62 FR 14338).
Castilleja campestris
ssp.
succulenta
Robert Hoover (1936a) first described this species as
Orthocarpus campestris
var.
succulentus
(fleshy owl's-clover). The type specimen had been collected at Ryer, in Merced County. Robert Hoover (1968) subsequently raised its rank and assigned it the name
Orthocarpus succulentus.
Chuang and Heckard (1991) reconsidered the taxonomy of
Orthocarpus
and related genera. Based on floral morphology (external structure or form), seed morphology, and chromosome number, they transferred many species into the genus
Castilleja.
Furthermore, they determined that the appropriate rank for this species was as a subspecies of
Castilleja campestris
(field owl's-clover) and assigned the plant the scientific name
Castilleja campestris
ssp.
succulenta
(Chuang and Heckard 1991).
Castilleja campestris
ssp.
succulenta
is a hemiparasitic (partly parasitic) annual herb belonging to the snapdragon family (Scrophulariaceae). The plant has erect or decumbent (laying on the ground with the tip turned upward) stems up to 12 in (30 cm) long. The stems are usually unbranched and without hairs. The leaves at the base of the stem are small and scalelike, whereas those on the upper stem are lance-shaped, not lobed, thick, fleshy, brittle, and easily broken. The bracts (leaf-like structures in the flowering structure) are green, similar to but shorter than the upper leaves, and longer than the flowers. Overall, the inflorescence (entire flowering structure of a plant) may occupy as much as half of the plant's height (Hoover 1936a, 1937, 1968; Chuang and Heckard 1991, 1993).
Castilleja campestris
ssp.
succulenta
is known from 63 widely scattered extant occurrences in vernal pool habitats along the Southern Sierra Foothills Vernal Pool Region ranging from Madera County to a disjunct occurrence in northern San Joaquin County.
Castilleja campestris
ssp.
succulenta
is known from 11 occurrences in Fresno County, 9 in Madera, 36 in Merced, 5 in Stanislaus and 1 in Tuolumne (Keeler-Wolf
et al.
1998; CNDDB 2002).
Castilleja campestris
ssp.
succulenta
is known mostly from vernal pools occurring on alluvial terrace landforms. These pool types have been described as both Northern Claypan and Northern Hardpan vernal pools (Sawyer and
Keeler-Wolf 1995) within annual grassland communities (CNDDB 2002). However, it is found on Northern Basalt Flow vernal pools on Hideaway soils series at one location in the San Joaquin Valley. It is known from both small and large pools (EIP Associates 1999). Although not all pools occupied by this taxon have been studied in detail, Stebbins
et al.
(1995) collected data on six occupied pools in Fresno and Madera Counties. Some were typical “bowl-like” pools, whereas others were more similar to swales. This subspecies has been reported from pools with both long and short inundation periods (EIP Associates 1999), and from both shallow and “abnormally deep vernal pools,” but approximate depth of these pools was not given (CNDDB 2002).
Soil series supporting
Castilleja campestris
ssp.
succulenta
include Amador, Anderson, Corning, Fallbrook, Keyes, Pentz, Ramona, Redding, San Joaquin, Vista, and Yokohl, as well as the Pollasky-Montpellier complex. Soil textures at those sites range from extremely stony loam to loamy clay. In the proposed University of California-Merced campus and community area, the species is found primarily on Redding gravelly loam; however, Corning, Keyes, and Pentz soils also contain occurrences of the species (EIP Associates 1999). Occurrences of
C. c.
ssp.
succulenta
have been reported from elevations of 80 ft (24 m) at the San Joaquin County site to 2,300 ft (700 m) at Kennedy Table in Madera County (CNDDB 2002). We are uncertain about specific soils that may correlate with the presence of this species, although it is irregularly found on Redding soil series. Vernal pool complexes that provide habitat for this species include pools ranging in depth from 6 in (15 cm) to 10 in (25 cm), but the species is also found less frequently in shallower and deeper pools. Soil pH values for some of the vernal pools in Merced County occupied by
C. c.
ssp.
succulenta
range from 4.3 to 6.2. Although no comprehensive study has been conducted, some vernal pools occupied by
C. c.
ssp.
succulenta
vary in size from 0.02 ac (81 m
2
) to 0.12 ac (486 m
2
) in Merced County. Merced County contains the largest aggregations of
C. c.
ssp.
succulenta:
occurrences are found on mild to strongly acidic soils on Laguna, Mehrten, North Merced Gravels, and Riverbank Formations, as well as on Ione, Mehrten, and Valley Springs geological formations. The parent material of vernal pools greatly influences species composition and hydrologic functioning of the vernal pool (Holland and Jain 1981, 1988; Hanes and Stromberg 1998).
Castilleja campestris
ssp.
succulenta
appears to prefer the more-weathered acidic, higher-terrace vernal pool complexes that are composed of volcanic tuff sand quartzite parent materials.
Further discussion on the life history and habitat characteristics of
Castilleja campestris
ssp.
succulenta
can be found in the final rule to list the species (62 FR 14338).
Orcuttieae Tribe
Neostapfia colusana
(Colusa grass),
Orcuttua pilosa
(hairy Orcutt grass),
Tuctoria mucronata
(Solano grass),
Tuctoria greenei
(Greene's tuctoria),
Orcuttia viscida
(Sacramento Valley Orcutt grass),
Orcuttia inaequalis
(San Joaquin Valley Orcutt grass), and
Orcuttia tenuis
(slender Orcutt grass) belong to the tribe Orcuttieae in Poaceae, the grass family, (Reeder 1965). Many life history characteristics are common to all members of the Orcuttieae. All are wind pollinated, but pollen may not be carried long distances between occurrences (Griggs 1980,1981; Griggs and Jain 1983). Local seed dispersal is by water, which breaks up the inflorescence (Reeder 1965; Crampton 1976; Griggs 1980, 1981). Long-distance dispersal is unlikely (Service 1985c), but seed may have been carried occasionally by waterfowl (family Anatidae), tule elk (
Cervus elaphus nannoides
), or pronghorn (
Antilocapra americana
) in historical times (Griggs 1980). The seeds can remain dormant for an undetermined length of time, but at least for 3 or 4 years, and germinate underwater after they have been immersed for prolonged periods (Crampton 1976; Griggs 1980; Keeley 1998a). Unlike typical terrestrial grasses that grow in the uplands surrounding vernal pools, members of the Orcuttieae flower during the summer months (Keeley 1998a).
Members of the Orcuttieae tribe share a suite of characteristics that separate the genera within the tribe from all other grasses and have no close terrestrial relative tribes. The semi-aquatic annual plants in this distinct group contain glands that produce a viscid aromatic exudate (sticky aromatic substance) exhibit no distinction between the leaf blade and blade sheath, lack leaf ligules (small membranous appendages at the base of a leaf), and possess small sunken mushroom-shaped bicellular microhairs. These seasonally submerged species germinate and grow as submerged aquatic plants for several weeks to 3 months. With the exceptions of
Tuctoria
and the variable aquatic and terrestrial leaves of
Neostapfia, Orcuttia
species produce floating aquatic juvenile leaves that lack stomata (openings for gas exchange). These partly amphibious
Orcuttia
species within this tribe replace their juvenile leaves with terrestrial leaves as the vernal pools dry out.
All members of the Orcuttieae tribe have large soil seed banks that may be 50 times (or more) larger in numbers than the aboveground population in any given year. In general, years of above-average rainfall promote larger expressions of occurrences of Orcuttieae, but occurrence responses vary by pool and by species (Griggs 1980; Griggs and Jain 1983). Population sizes have been observed to vary by one to four orders of magnitude among successive years and return to previous levels even after 3 to 5 consecutive years when no mature plants were present (Griggs 1980; Griggs and Jain 1983; Holland 1987). Thus, many years of observation are necessary to determine whether any occurrence of a species is increasing, stable, or declining.
Eight members of the Orcuttieae tribe are endemic and restricted to vernal pools in California. The Orcuttieae tribe contains the three genera
Neostapfia, Orcuttia
, and
Tuctoria
. The genus Neostapfia contains one species,
Neostapfia colusana
. The genus
Orcuttia
has five species and
Tuctoria
has two species. Although the various species within the tribe have been found in vernal pools ranging widely in size, the vast majority are found within vernal pools of 0.03 ac (0.01 ha) to 24.7 ac (10 ha) (Stone
et al.
1988). Larger vernal pools retain water until May or June, creating optimal conditions for Orcuttieae (Crampton 1959; Crampton 1976; Griggs 1981; Griggs and Jain 1983). Orcuttieae usually occur in patches within the pools that are essentially devoid of other plant species (Crampton 1959, 1976). Typically, these plants near the center of a vernal pool grow larger and produce more spikelets than those near the margins, but patterns vary depending on individual pool characteristics and seasonal weather conditions (Griggs 1980).
A discussion of each of the seven Orcuttieae species in this rule is provided below. The number of subject extant occurrences of the 3 genera within the tribe total 219, and an additional 80 occurrences have been extirpated or are considered possibly extirpated by intensive agriculture, land use conversions, urban development, and other factors (CNDDB 2002).
Neostapfia colusana
Joseph Burtt-Davy (1898) first described
Neostapfia colusana
(Colusa grass) and gave the Latin name
Stapfia
colusana.
He collected the type specimen near the town of Princeton in Colusa County, but soon realized that the name
Stapfia
had already been assigned to a genus of green algae, and thus changed the scientific name to
Neostapfia colusana
(Davy 1899). Two other taxonomists proposed alternate Latin names for the genus in the same year, but neither is accepted today. There are no other known species of
Neostapfia
(Reeder 1982, 1993).
Currently, CNDDB (2002) considers 41 occurrences of
Neostapfia colusana
to be extant and 19 other occurrences to no longer exist or to be possibly extirpated. Of the 41 extant occurrences, 23 occurrences of
N. colusana
are found in Merced County and 14 occurrences exist east of Hickman in Stanislaus County. Two occurrences each are found in southeastern Yolo County in central Solano County (Stone
et al.
1988; Keeler-Wolf
et al.
1998; CNDDB 2002). This species has been extirpated from Colusa and Glenn Counties (CNDDB 2002).
Neostapfia colusana
occurs on the rim of alkaline basins in the Sacramento and San Joaquin Valleys, as well as on acidic soils of alluvial fans and stream terraces along the eastern margin of the San Joaquin Valley and into the adjacent foothills (Stone
et al.
1988).
Neostapfia colusana
has been found in Northern Claypan and Northern Hardpan vernal pool types (Sawyer and Keeler-Wolf 1995) within rolling grasslands (Crampton 1959). This species typically grows in the deepest portion of the pool (Crampton 1959), but may also occur on the margins (Hoover 1937; Stone
et al.
1988). Deeper pools are most likely to provide the long inundation period required for germination (EIP Associates 1999). It appears to favor somewhat larger vernal pools that are shallower as compared to other vernal pool plants.
Neostapfia colusana
occurrences vary in elevation from near 16 ft (5 m) to near 350 ft (100 m).
Vernal pool complexes that provide habitat for this species include two different physiographic and edaphic settings: (1) claypan soils of saline-alkali basins and remnant alluvial fans and (2) old stream terrace areas with strongly acidic, gravelly, and cobbly soils having an iron-silica cemented hardpan and shallow, slightly acidic residual soils of the Pentz series underlain by cemented tuffaceous alluvium. Additional settings for
Neostapfia colusana
are found in vernal pool complexes where resistant beds of tuffaceous deposits are exposed along intermittent drainages and, in Stanislaus County, neutral-to-slightly-alkaline claypan soils on dissected alluvial fans. Not all areas of
N. colusana
have been identified as to the specific soil series or soil mapping units where they occur. However, in Merced County,
N. colusana
occurs on clay soils on Merhten and Laguna formations and Riverbank, North Merced gravels. Of the Orcuttieae grasses,
N. colusana
inhabits the widest range of vernal pool sizes, with the smallest being 1,075 ft
2
(100 m
2
) and the largest 618 ac (250 ha).
Solano and Yolo County sites where
Neostapfia colusana
grows contain vernal pools formed by soils in the Pescadero series, whereas those in central Merced County are formed by soils in the Landlow and Lewis series. The eastern Merced County and Stanislaus County sites include vernal pool habitats formed by the Bear Creek, Corning, Greenfield, Keyes, Meikle, Pentz, Peters, Raynor, Redding, and Whitney series (Stone
et al.
1988; EIP Associates 1999; CNDDB 2002). The type and composition of impermeable layers underlying occupied vernal pools also vary, ranging from claypan in the Sacramento Valley to lime-silica cemented hardpan in the San Joaquin Valley basins, to iron-silica cemented hardpan in the eastern margin of the San Joaquin Valley. Tuffaceous alluvium underlies some eastern San Joaquin Valley pools and intermittent streams where
N. colusana
grows (Stone
et al.
1988).
Further discussion on the life history and habitat characteristics of
Neostapfia colusana
can be found in the final rule to list the species (62 FR 14338).
Tuctoria greenei
George Vasey (1891) originally assigned this species the name
Orcuttia greenei.
Edward Greene had collected the type specimen in 1890 (Vasey 1891), presumably in Butte County (Hoover 1941; Crampton 1959). Citing differences in lemma morphology, arrangement of the spikelets, and other differences, Robert Reeder (1982) segregated the genus
Tuctoria
from
Orcuttia
and created the new scientific name
Tuctoria greenei
(Greene's tuctoria).
Tuctoria greenei
is an erect-to-low-growing annual with fragile stems that easily break apart at the nodes, which are often purplish. The leaves are flat and curve outward and the plants are sparsely hairy. The inflorescence is crowded near the tip, with the lower spikelets more or less separated. Optimum germination of
T. greenei
seed occurs when the seed is exposed to light and anaerobic (lacking oxygen) conditions after a cold period of time (stratification) (Keeley 1988). Germination occurs several months after initial inundation (Keeley 1998a).
Tuctoria
seedlings do not develop floating juvenile leaves as does
Orcuttia
(Griggs 1980; Keeley 1998a).
Tuctoria greenei
flowers from May to July (Skinner and Pavlik 1994), with peak flowering in June and July (Griggs 1981; Broyles 1987).
Tuctoria greenei
is known from 21 extant widely separated occurrences in Butte, Merced, Shasta, and Tehama Counties. Sixty percent of the extant occurrences of
T. greenei
are in the Vina Plains area of Tehama and Butte Counties. Eastern Merced County has about 30 percent of the known occurrences. Other occurrences are located in Glenn (Oswald and Silveira 1995) and Shasta Counties (CNDDB 2002).
Tuctoria greenei
has been extirpated from Fresno, Madera, San Joaquin, Stanislaus, and Tulare Counties (Stone
et al.
1988; Skinner and Pavlik 1994; CNDDB 2002).
Tuctoria greenei
has been found in three types of vernal pools: Northern Basalt Flow, Northern Claypan, and Northern Hardpan (Stone
et al.
1988; Sawyer and Keeler-Wolf 1995). Occupied pools are (or were) underlain by iron-silica cemented hardpan, tuffaceous alluvium, or claypan (Stone
et al.
1988). Of pools where the species was known to be extant in 1987, the median size was 1.5 ac (0.6 ha), with a range of 0.01 ac (50 m
2
) to 8.4 ac (3.4 ha) (Stone
et al.
1988). Stone
et al.
(1988) noted that
T. greenei
grew in shallower pools than other members of the tribe or on the shallow margins of deeper pools, but they did not quantify pool depth. At the Vina Plains,
T. greenei
grew in pools of “intermediate” size, which dried in April or early May of 1995 (Alexander and Schlising 1997). The Central Valley pools containing
T. greenei
are (or were) in grasslands; the Shasta County occurrence is surrounded by pine forest (CNDDB 2002). Occupied pools in the Central Valley are (or were) at elevations of 110 to 440 ft (33.5 to 134 m) (Stone
et al.
1988), whereas the Shasta County occurrence is at 3,500 ft (1,067 m) (CNDDB 2002).
In Tehama and Butte Counties,
Tuctoria greenei
grows mostly on Anita clay and Tuscan loam soils, with one occurrence on Tuscan stony clay loam. Soil types are not certain for several other occurrences in this region; one is on either the Rocklin or the San Joaquin series, and the others are unknown. On the eastern margin of the San Joaquin Valley,
T. greenei
is known to grow on a number of different soil series, including Archerdale, Bear Creek, Exeter, Meikle, Ramona, Raynor, Redding, and San Joaquin.
Further discussion on the life history and habitat characteristics of
Tuctoria
greenei
can be found in the final rule to list the species (62 FR 14338).
Orcuttia pilosa
Robert Hoover (1941) described
Orcuttia pilosa
(hairy Orcutt grass) from specimens he collected in Stanislaus County in 1937.
Orcuttia pilosa
grows in tufts consisting of numerous stems. The stems are decumbent or erect and branch from only the lower nodes. Almost the entire plant is pilose or hairy, giving it a grayish appearance. The spikelets near the tip of the inflorescence are crowded together, whereas those near the base are more widely spaced.
Orcuttia pilosa
is known from 28 extant occurrences at widely scattered sites in the southern portion of the Sacramento Valley and the southern Sierra foothills (Keeler-Wolf
et al.
1998). In the Sacramento Valley, Butte County has one occurrence, Glenn County has six occurrences, and Tehama County has nine occurrences. In the Southern Sierra Foothills Vernal Pool Region, the remaining 12 occurrences of the species are found in widely scattered locations in Stanislaus, Madera, and Merced Counties (Hoover 1941; Crampton 1959; Reeder 1982, Stone
et al.
1988; CNDDB 2002). Nineteen of those occurrences have been confirmed as existing within the past decade (CNDDB 2002).
This species is found within vernal pools formed on high or low stream terraces and alluvial fans (Stone
et al.
1988). The median size of occupied pools measured in the late 1980s was 4.2 ac (1.7 ha), with a range of 0.8 to 617.5 ac (0.34 to 250 ha) (Stone
et al.
1988). At the Vina Plains,
Orcuttia pilosa
was found growing only in pools that held water until May, June, or July in 1995, not in those that dried in April (Alexander and Schlising 1997). This species is known from elevations of 85 ft (26 m) in Glenn County to 405 ft (123 m) in Madera County (CNDDB 2002).
Orcuttia pilosa
is found on both acidic and saline-alkaline soils, in pools with an iron-silica cemented hardpan or claypan. In Tehama and Butte Counties, pools supporting
O. pilosa
occur on the Anita and Tuscan soil series (Stone
et al.
1988; CNDDB 2002). At one pool in the Vina Plains that spans both Anita clay and Tuscan loam soils,
O. pilosa
was found growing primarily on the Anita clay (Alexander and Schlising 1997). At the Sacramento National Wildlife Refuge,
O. pilosa
occurs on the Willows and Riz soil series, whereas in the Southern Sierra Foothills Vernal Pool Region it occurs on the Cometa, Greenfield, Hanford, Meikle, and Whitney soil series (Stone
et al.
1988).
Further discussion on the life history and habitat characteristics of
Orcuttia pilosa
can be found in the final rule to list the species (62 FR 14338).
Orcuttia viscida
Robert Hoover (1941) first described
Orcuttia viscida
(Sacramento Orcutt grass) as
Orcuttia californica
var.
viscida
based on the type specimen he collected from in Sacramento County. John Reeder (1980) determined that the differences in morphology, seed size, and chromosome number were sufficient grounds to elevate it to the species level as
Orcuttia viscida.
Orcuttia viscida
grass resembles other members of the tribe and genus. Although all members of the Orcuttieae produce a sticky exudate,
O. viscida
is particularly sticky even when young. The plants are densely tufted, bluish green, and covered with hairs. The stems are erect or spreading, 1 to 4 in (3 to 10 cm) long, and do not branch. The inflorescence occupies the upper one-third to one-half of the stem and consists of between 5 and 15 spikelets. The spikelets are closely spaced, and although distichous (arranged in two opposing rows), they are oriented towards one side of the stem.
Orcuttia viscida
is endemic to the southeastern Sacramento Valley (Keeler-Wolf
et al.
1998) and always has been restricted to Sacramento County. From 1990, this species was known from a total of seven natural occurrences and one introduction (Stone
et al.
1988; CNDDB 2002). Within the past decade,
O. viscida
has been discovered at one new site in Sacramento County within the previously known range. However, one entire occurrence and a portion of another have been extirpated. Thus, eight of the nine occurrences are still in existence. Five occurrences, comprising more than 70 percent of the occupied habitat, are concentrated into a single small area east of Mather Field. Two other occurrences are adjacent to each other: Phoenix Field Ecological Reserve and the introduced occurrence at Phoenix Park. The eighth existing occurrence is near Rancho Seco Lake (Stone
et al.
1988: Cochrane, in litt. 1995a; CNDDB 2002).
Orcuttia viscida
has been found in Northern Hardpan and Northern Volcanic Mudflow vernal pools (Sawyer and Keeler-Wolf 1995). It occurs on high terrace sites (Stone
et al.
1988) at elevations of 150 to 270 ft (46 to 82 m) (CNDDB 2002). Occupied pools occur in blue oak woodland and annual grassland (Crampton 1959; Griggs 1977; CNDDB 2002). Among occupied pools discovered prior to 1988, the median area was 0.69 ac (0.28 ha) and ranged from 0.25 ac (0.1 ha) to 2.03 ac (0.82 ha).
Orcuttia viscida
grows are acidic with an iron-silica hardpan (Stone
et al.
1988), and the pools contain numerous cobbles (Crampton 1959; Stone
et al.
1988). Four of the known occurrences are on soils in the Redding series, two are on Red Bluff-Redding complex soils, two are (or were) on Xerarents-urban land-San Joaquin complex, and one is on Corning complex soils.
Further discussion on the life history and habitat characteristics of
Orcuttia viscida
can be found in the final rule to list the species (62 FR 14338).
Orcuttia inaequalis
Robert Hoover (1936b) described
Orcuttia inaequalis
(San Joaquin Valley Orcutt grass) based on a collection from “Montpellier [sic], Stanislaus County.” Robert Hoover (1941) subsequently reduced this taxon to a variety of
californica,
using the combination
Orcuttia californica
var.
inaequalis.
Based on differences in morphology, seed size, and chromosome number, John Reeder (1980) restored the taxon to species status.
Mature plants of
Orcuttia inaequalis
grow in tufts of several erect stems. Plants of this species appear grayish-green due to the long hairs on the stem and leaves and produces exudate.
Orcuttia
plants grow underwater for 3 months or more and have evolved specific adaptations for aquatic growth (Keeley 1998a).
Of the 49 occurrences of
Orcuttia inaequalis
reported in CNDDB (2002), 28 occurrences are presumed extant; 18 are certainly extirpated and three others are possibly extirpated because the habitat has been modified (CNDDB 2002). However, only 12 of the occurrences presumed still in existence have been revisited within the past decade, so even the most recent information is outdated. Of the 28 occurrences of
Orcuttia inaequalis,
Fresno County has two, Madera County has seven, Merced County has 18, and Tulare County has one occurrence. This species has been completely extirpated from Stanislaus County (Stone
et al.
1988; Skinner and Pavlik 1994; CNDDB 2002).
Orcuttia inaequalis
occurs on alluvial fans, high and low stream terraces (Stone
et al.
1988), and tabletop lava flows (Stebbins
et al.
1995; CNDDB 2002). This species has been reported in Northern Claypan, Northern Hardpan, and Northern Basalt Flow vernal pools (Sawyer and Keeler-Wolf 1995) within rolling grassland (Crampton 1959). Occupied pools range in surface area from 0.05 to 12.1 ac (0.02 to 4.9 ha), with a median area of 1.54 ac (0.62 ha)
(Stone
et al.
1988).
Orcuttia inaequalis
has been reported at elevations of 100 to 2,475 ft (30 to 755 m); the highest elevation sites are those on the volcanic tabletops of Fresno and Madera Counties (Stebbins
et al.
1995; CNDDB 2002).
The pools where
Orcuttia inaequalis
is known to occur form on acidic soils that vary in texture from clay to sandy loam. Soil series represented include the Hideaway series on Fresno-Madera County volcanic tabletops, and Amador, Cometa, Corning, Greenfield, Los Robles, Madera, Peters, Pollasky-Montpellier complex, Raynor, Redding, and San Joaquin soil series elsewhere in the range. The impermeable layer at historical or extant occurrences included iron-silica cemented hardpan, tuffaceous alluvium, and basaltic rock from ancient volcanic flows (Stone
et al.
1988; Stebbins
et al.
1995; EIP Associates 1999; CNDDB 2002).
Further discussion on the life history and habitat characteristics of
Orcuttia inaequalis
can be found in the final rule to list the species (62 FR 14338).
Orcuttia tenuis
Albert Hitchcock (1934) named
Orcuttia tenuis
(slender Orcutt grass). The type specimen was collected in Goose Valley, Shasta County, in 1912.
Orcuttia tenuis
grows as single stems or in small tufts consisting of a few stems. Plants are sparsely hairy and branch only from the upper half of the stem. Although its stems typically are erect, they may become decumbent if many branches form near the stem tip (Reeder 1982). The inflorescence comprises more than half of the plant's height, and the spikelets are more or less evenly spaced throughout the inflorescence.
Similar to other vernal pool annuals, the number of individual plants within an occurrence of
Orcuttia tenuis
can vary greatly in size from year to year. Fluctuations of up to four orders of magnitude have been documented in Lake and Shasta Counties (Griggs 1980; Griggs and Jain 1983). At the Vina Plains Preserve, the single occurrence ranged in size from 1,000 to 147,700 individuals during the five times it was reported over a 13-year period (Stone
et al.
1988; Alexander and Schlising 1997). However,
O. tenuis
occurrences do not always fluctuate in numbers of plants. Among five occurrences of
O. tenuis
that Griggs tracked from 1973 to 1979, two in the Dales area remained at the same order of magnitude for the entire period. None of the other five species of Orcuttieae included in the study remained stable for the full 7 years (Griggs 1980; Griggs and Jain 1983).
Orcuttia tenuis
has the largest geographical range of all the members of the Orcuttieae. The species is known from 35 occurrences in Tehama County, 24 in Shasta County, 5 from Lassen County, 4 from Plumas County, 2 in Sacramento County, and 2 each in Butte, Lake, Modoc, Sacramento, and Siskiyou Counties (CNDDB 2002). An additional occurrence has recently been found in Sacramento County (ESA 2001). Extirpated occurrences of
O. tenuis
occur near Reading Airport and Stillwater Plains in Shasta County, and additional possibly extirpated occurrences were near Goose Valley and Battle Creek in Tehama and Shasta Counties (CNDDB 2002).
Orcuttia tenuis
is found primarily on substrates of volcanic origin (Crampton 1959; Corbin and Schoolcraft 1989). Vernal pools in which
Orcuttia tenuis
grows are classified as Northern Volcanic Ashflow and Northern Volcanic Mudflow vernal pools (Sawyer and Keeler-Wolf 1995). Impervious layers range from iron-silica hardpan to bedrock (Stone
et al.
1988; Corbin and Schoolcraft 1989; CNDDB 2001). Among the populations studied by Stone and others (1988), the median area of pools occupied by
O. tenuis
was 1.6 ac (0.65 ha) and ranged from 0.2 to 111 ac (0.08 to 45 ha). On the Modoc Plateau, occupied pools known as of 1989 ranged in size from 5 to 100 ac (2 to 40 ha) and were typically at least 11.8 in (30 cm) deep; this species was restricted to the deepest areas of these pools (Corbin and Schoolcraft 1989).
Orcuttia tenuis
occurs through a wide range of elevations corresponding to its broad geographical range. The lowest reported elevation was 90 ft (27 m) in Sacramento County (Stone et al. 1988) and the highest was 5,761 ft (1,756 m) in Plumas County (Corbin, in litt. 1999).
Soil types supporting vernal pools where
Orcuttia tenuis
is known to occur are diverse, ranging from slightly to strongly acidic (Stone
et al.
1988), and from clay to sandy, silty, or cobbly loam (Corbin and Schoolcraft 1989; CNDDB 2001). The soil series has not been reported for all
O. tenuis
sites, but the species has been reported on Collayomi-Aiken-Whispering complex and the Konocti-Hambright complex soils. Modoc Plateau occurrences occur on the Gooval, Lasvar, Lasvar-Pitvar complex, and Nosoni soil series, whereas occurrences in northeastern Sacramento Valley are on the Anita, Guenon, Inks, Inskip, Laniger, Moda, Redding, Toomes, and Tuscan soil series. The Redding soil series also supports
O. tenuis
in Sacramento County (Stone
et al.
1988; CNDDB 2001).
Associated species vary throughout the range of
Orcuttia tenuis.
Although
O. tenuis
grows in the same vernal pool complexes as
O. pillosa
in Tehama County (including the Vina Plains Preserve), and
Orcuttia viscida
in Sacramento County, it has not been found to share any pools with either species (Stone
et al.
1988; Cochrane
in litt.
1995a; Alexander and Schlising 1997; CNDDB 2001).
Further discussion on the life history and habitat characteristics of
Orcuttia tenuis
can be found in the final rule to list the species (62 FR 14338).
Tuctoria mucronata
Tuctoria mucronata
(Solano grass) was originally described under the name
Orcuttia mucronata
based on specimens collected “12 miles due south of Dixon, Solano County” (Crampton 1959, p. 108). John Reeder (1982) transferred this species to a new genus,
Tuctoria,
resulting in the currently accepted name
Tuctoria mucronata.
Tuctoria mucronata
is grayish-green, pilose, and sticky. The tufted stems are decumbent and do not branch. The long leaves are rolled inward and have pointed tips. The base of the inflorescence is partially hidden by the uppermost leaves. As is characteristic of the genus, the spikelets are arranged in a spiral; the spikelets in the inflorescence of
Tuctoria mucronata
are crowded together.
Annual estimates or individual plant counts at Olcott Lake (Holland 1987; CNDDB 2002) indicated that occurrence sizes for this species fluctuate dramatically from year to year, as do other members of the Orcuttieae.
Tuctoria mucronata
was not observed at Olcott Lake from 1976 through 1980, then reappeared in 1981 (Holland 1987), indicating that viable seeds can persist in the soil for a minimum of 5 years. Apparently both drought years and years of excessively high rainfall are unfavorable for
Tuctoria mucronata;
the largest expressions of this species were observed after rainfall seasons of 17.7 to 23.6 in (45 to 60 cm) of precipitation (Holland 1987).
Prior to 1985,
Tuctoria mucronata
was known only from Olcott Lake in Solano County, which is believed to be the type locality (Crampton 1959; CNDDB 2002). A second occurrence was discovered in 1985 approximately 2.5 mi (4 km) southwest of Olcott Lake (CNDDB 2002).
Tuctoria mucronata
is considered to be possibly extirpated from its type locality, because only four individual plants have been found within the last decade, all in 1993 (CNDDB 2002). The other Solano
County site is still in existence. A third occurrence, comprising the largest occurrence known, was discovered in 1993 on a Department of Defense (DOD) communications facility in Yolo County (CNDDB 2002).
Tuctoria mucronata
has been found only in the Northern Claypan type of vernal pool (Sawyer and Keeler-Wolf 1995) within annual grassland (CNDDB 2002). Pools where
T. mucronata
occurs tend to be milky from suspended sediments (Holland 1987). The occupied pools in Solano County are more properly described as alkaline playas or intermittent lakes due to their large surface area (Crampton 1959), whereas those at the Yolo County site are “relatively small” (Witham,
in litt.
2000a). Soils underlying known
T. mucronata
sites are saline-alkaline clay or silty clay in the Pescadero series (Crampton 1959; CNDDB 2002). Known occurrences are at elevations of approximately 15 to 35 ft (5 to 11 m) (CNDDB 2002).
Further discussion of the life history and habitat characteristics of
Tuctoria mucronata
can be found in the Delta Green Ground Beetle and Solano Grass Recovery Plan (Service 1985c), and in the final rule to list the species (43 FR 44810; September 28, 1978).
Previous Federal Action
This rulemaking is being made in accordance with a consent decree reached in the U. S. District Court for the Eastern District of California, on December 5, 2002. The following outlines the previous Federal actions and litigation filed after the publication of the proposed rule. For more information regarding Federal actions prior to the publication of the proposed rule, see the Previous Federal Action section in the proposed rule (67 FR 59884).
On September 24, 2002 (67 FR 59884), we published a proposed critical habitat designation for four vernal pool crustaceans and 11 vernal pool plants. Publication of the proposed rule opened a 60-day public comment period, which closed on November 25, 2002. On October 10, 2002, we published a notice (67 FR 63067) announcing three public hearings. The public hearings were held on October 22, 2002, in San Luis Obispo, California; and October 24, 2002, in Sacramento, California, and Medford, Oregon. In addition, public workshops were held in Chico, Sacramento, and Fresno in California and Medford, Oregon. On November 21, 2002, we published a notice announcing the availability of our draft economic analysis (DEA) on the proposed critical habitat designation (67 FR 70201). The notice opened a public comment period on the DEA, and extended the comment period on the proposed critical habitat designation. This comment period was extended for approximately 30 days, closing on December 23, 2002.
On December 5, 2002, the district court approved a settlement agreement between the parties that extended the deadline for designation of critical habitat from February 14, 2003, until July 15, 2003. On March 14, 2003, we published a notice announcing the reopening of the public comment period for approximately 14 days on the proposed designation of critical habitat for these 15 vernal pool species (68 FR 12336) and the DEA, closing on March 28, 2003.
Summary of Comments and Recommendations
In the September 24, 2002, proposed critical habitat designation (67 FR 59884) and subsequent comment periods, we requested all interested parties to submit comments on the specifics of the proposal, including information related to the critical habitat designation, 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, potential exclusions and the associated rationale for the exclusions, and methods used to designate critical habitat.
We contacted all appropriate State and Federal agencies, county governments, elected officials, and other interested parties and invited them to comment. This was accomplished through telephone calls, letters, and news releases faxed and/or mailed to affected elected officials, media outlets, local jurisdictions, interest groups and other interested individuals. In addition, we invited public comment through the publication of legal notices in numerous newspaper and news media throughout California and Oregon. We provided notification of the DEA and proposed rule to all interested parties. At the request of the Merced County Board of Supervisors, we attempted to notify all Merced County landowners within the proposed vernal pool critical habitat and requested that they provide comments. We provided them contacts where they could direct questions regarding the proposed designation. We also posted the proposed rule and DEA and associated material on our Sacramento Fish and Wildlife Office internet site following their release on September 24, 2002, and November 21, 2002, respectively. Additionally, we developed an internet site to provide interactive Geographic Information Systems (GIS) maps of the proposed critical habitat boundaries overlaid on 250K USGS. quadrangle maps.
We received a total of 955 comment letters during the 2 comment periods. Comments were received from Federal, State, and local agencies, and private organizations and individuals. We reviewed all comments received for substantive issues and comments and new information regarding the vernal pool plants and vernal pool crustaceans. Similar comments were grouped into several general issue categories relating specifically to the proposed critical habitat determination and the DEA and are identified below.
Peer Review
We requested 6 biologists, who have knowledge of vernal pool ecosystems and the 15 species addressed in this rule, to provide scientific review of the proposed designation of critical habitat. Three of the six reviewers submitted comments on the proposed designation. Two of the reviewers strongly endorsed the approach in the proposal that protecting vernal pools in the context of surrounding upland watersheds is crucial for the conservation and long-term survival of the listed vernal pool species, and stated that the rule placed appropriate emphasis on protecting intact vernal pool complexes. The reviewers also cited the importance of conserving a wide range of vernal pool habitat types and biological diversity. The reviewers recommended that additional historical locations of the listed species be considered for critical habitat, and specifically recommended inclusion of vernal pool habitat in Santa Barbara County that once supported
Lasthenia conjugens.
The third reviewer provided specific technical comments on the proposed rule and those recommendations have been incorporated into this final rule.
State Agencies
We received comments from the following California State agencies: Department of Fish and Game (CDFG), Department of Forestry and Fire Protection (CDF), Department of Transportation (Caltrans), and the Department of Housing and Community Development (HCD). Technical data provided by the CDFG has been incorporated into or addressed in this final rule, while other issues raised by State agencies are addressed below.
State Comment 1:
The CDFG has considerable knowledge of wildlife resources within California, and we
should work with CDFG in developing critical habitat designations for federally listed species.
Our Response:
In developing the proposed rule, we solicited information from CDFG biologists familiar with the local land areas through out California, vernal pool species, and vernal pool habitat. We used the local expertise of our counterparts in CDFG regional offices to help us determine which areas were essential to the 15 vernal pool species addressed in this rule, and to determine the appropriate boundaries for the critical habitat. Further, one of the primary data sources that was used in the development of our proposal and this final rule was the State Natural Heritage occurrence and natural diversity database—the CNDDB. We additionally consulted with the CDFG when we had questions regarding species occurrence data and if any new information was available which was not in the database. We view the CDFG as a partner in natural resource management and protection in California, and will continue to work closely with them.
State Comment 2
: Some areas within the proposed critical habitat designation do not contain the necessary habitat requirements for the species (
e.g.,
Grasslands Ecological Unit, Merced County).
Our Response:
On the basis of information provided by the public, the scientific community, and other Federal, State, and local government officials, we have revised the critical habitat unit boundaries for the 15 vernal pool species, including the area encompassing the Grasslands Ecological Unit, to better reflect those areas containing the primary constituent elements (PCEs) (see Methods, Summary of Changes from Proposed Rule, and Unit Maps).
State Comment 3:
The CDFG believes all CDFG lands should be excluded from critical habitat, given the requirement of consultation pursuant to section 7 of the Act for Federal actions, and CDFG's trustee responsibility for protecting the State's wildlife resources, including federally listed species.
Our Response:
We have excluded CDFG owned lands within the Battle Creek, Big Sandy, Grizzly Island, Hill Slough, North Grasslands, and Oroville Wildlife Areas and State-owned lands within Allensworth, Boggs Lake, Butte Creek Canyon, Calhoun Cut, Carrizo Plains, Dales Lake, Fagan Marsh, Phoenix Field, San Joaquin River, Stone Corral, and Thomes Creek Ecological Reserves. The total amount of land excluded for State-owned lands excluded within wildlife areas or ecological reserves is approximately 20,933 ac (8,373 ha). These exclusions are based on the CDFG's trustee responsibility for protecting the State's wildlife resources, including federally listed species.
State Comment 4:
The CDFG believes that designating critical habitat on lands covered under Habitat Conservation Plans (HCPs) and Natural Community Conservation Plans (NCCPs) provides little benefits for species covered under these plans.
Our Response:
We recognize that critical habitat is only one of many conservation tools for federally listed species. However, HCPs are one of the most important tools for reconciling land use with the conservation of listed species on non-Federal lands. Section 4(b)(2) of the Act allows us to exclude from critical habitat designation areas where the benefits of exclusion outweigh the benefits of designation, provided the exclusion will not result in the extinction of the species. We believe that in most instances the benefits of excluding HCPs from critical habitat designations will outweigh the benefits of including them. For this designation, we find that the benefits of exclusion outweigh the benefits of designation for all approved and legally operative HCPs in which vernal pool species are covered. Please refer to the Relationship of Critical Habitat to Habitat Conservation Plans and Relationship of Critical Habitat to the Western Riverside Multiple Species Habitat Conservation Plan sections of this final rule for a more detailed discussion of how approved and pending HCPs have been addressed in this final designation.
State Comment 5:
The CDFG believes that all future HCPs and NCCPs should be removed from critical habitat once they are approved.
Our Response:
We anticipate that future HCPs in the range of the 15 vernal pool species will include them as a covered species and provide for their long term conservation. We expect that HCPs undertaken by local jurisdictions (
e.g.
, counties and cities) and other parties will identify, protect, and provide appropriate management for those specific lands within the boundaries of the plans that are essential for the long term conservation of the species. Section 10(a)(1)(B) of the Act states that HCPs must meet issuance criteria, including minimizing and mitigating any take of the listed species covered by the permit to the maximum extent practicable, and that the taking must not appreciably reduce the likelihood of the survival and recovery of the species in the wild. We fully expect that our future analyses of HCPs and section 10(a)(1)(B) permits under section 7 will show that covered activities carried out in accordance with the provisions of the HCPs and section 10(a)(1)(B) permits will not result in the destruction or adverse modification of critical habitat designated for the vernal pool species. The take minimization and mitigation measures provided under these HCPs are expected to adequately protect the essential habitat lands designated as critical habitat in this rule, such that the value of these lands for the survival and recovery of the vernal pool species is not appreciably diminished through direct or indirect alterations. If an HCP that addresses the vernal pool species as covered species is ultimately approved, we will reassess the critical habitat boundaries in light of the HCP. If, consistent with available funding and program priorities, we elect to revise this designation, we will do so through a subsequent rulemaking.
The designation of critical habitat should not deter participation in the NCCP or HCP processes. Approvals issued under these processes include assurances of no additional mitigation through the HCP No Surprises regulation (63 FR 8859). The development of new HCPs or NCCPs should not be affected by designation of critical habitat primarily because we view the standards of jeopardy for listed species and of adverse modification for critical habitat as being virtually identical. We discuss these standards in detail in the Section 7 Consultation section portion of this document.
State Comment 6:
CDFG expressed concern that designation of critical habitat will increase the regulatory and/or economic burden for project proponents, because many of their programs, such as vegetation management and fire hazard reduction, are administered on private lands with Federal cost-share funds. CDFG also requested us to address land management activities that benefit vernal pool habitats.
Our Response:
We do not anticipate that this designation will result in significant increases in regulatory requirements for programs involving Federal cost-share funds over those which have existed since the time of the listing of each of the 15 vernal pool species. All of these activities, to the extent that they modify vernal pool habitat, have the potential to affect federally listed species and thus trigger the informal or formal consultation requirements of section 7 of the Act. Even beneficial land management actions, if they are likely to result in “take” of listed vernal pool crustaceans, must receive appropriate incidental take
authorization through section 7 or section 10 of the Act. The regulatory requirements of section 7 consultation that are established with the listing of a species and the requirements associated with critical habitat designation are discussed in detail in the section Effects of Critical Habitat Designation. A discussion of land management activities, including prescribed burning and grazing, that are beneficial to vernal pool habitats, can be found in the section Special Management Considerations.
State Comment 7:
Caltrans requested that we exclude transportation infrastructure, particularly operating right-of-way, from the designation because these areas are not essential to the conservation of the species.
Our Response:
We understand the concern of the transportation agencies over having habitat within transportation infrastructure designated as critical habitat. Such areas are included in this designation for several reasons: (1) many areas contain occurrences of the listed vernal pool species and the PCEs; and (2) we did not have the time, resources, or the appropriate GIS data layers to segregate these areas from adjacent vernal pool habitat, evaluate their importance to the conservation of the 15 vernal pool species separately from adjacent vernal pool habitat that we had determined to be essential, and then produce maps and legal descriptions of essential habitat around them, but not including them. Many transportation agency activities involving right-of-way maintenance already trigger section 7 consultation requirements because they support habitat occupied by listed vernal pool species, and because of the Federal nexus provided by the Federal Highway Administration. We do not anticipate that this designation will result in a significant increase in regulatory requirements over those that have existed since the time of the listing of each of the 15 vernal pool species. A more detailed explanation of regulatory requirements of section 7 consultation that are established with the listing of a species, and the requirements associated with critical habitat designation, are discussed in the section Effects of Critical Habitat Designation.
State Comment 8:
The HCD commented that the information and public review period for the draft economic analysis was insufficient, expressed concern over the broad standardized scale of the economic analysis, and suggested that a more discrete level of analysis is necessary to credibly project economic costs and benefits of the designation through the 20-year analysis period.
Our Response:
The draft economic analysis of the proposed critical habitat designation was made available to the public for review and comment on November 21, 2002, (67 FR 70201). At that time, we opened a 30-day public comment period, on both the proposal and the draft economic analysis, which closed on December 23, 2003. On March 14, 2003, we reopened the comment period for both the proposal and the draft economic analysis for an additional 14 days, ending March 28, 2003 (68 FR 12336). Consequently, the public was provided approximately 45-days to review and provide comment on the draft economic analysis. As stated in this final rule, we acknowledge the limitations imposed by conducting public rulemaking under abbreviated, court mandated schedules, and that, as a result, we are not always able to provide adequate public participation in the process.
For large designations, such as this rule, the 4(b)(2) decision will consider broad geographic areas, rather than individual parcels or projects. The level of detail provided in this analysis is appropriate to the size of areas considered for exclusion. In addition, a more detailed analysis would not necessarily produce a more accurate estimate of potential impacts. Parcel-by-parcel analysis of costs may achieve greater certainty for projects that have already been approved by local planners. However predicting the location and characteristics of future projects on a parcel-by-parcel basis using the same sources of data will result in greater uncertainty as the time frame for the analysis increases. For this rulemaking, it is unlikely that a more detailed analysis would produce a significantly different answer.
Other Public Comments and Responses
We address other substantive comments and accompanying information in the following summary. Relatively minor editing changes and reference updates suggested by commenters have been incorporated into this final rule or the final economic analysis, as appropriate.
Issue 1—Habitat and Species Specific Information
Comment 1:
Several commenters, including county and local governmental representatives, stated that the designation was not based on the best scientific data available, and that we have not adequately established that the areas identified as critical habitat contain PCEs essential for the species.
Our Response:
We believe that we used the best scientific and commercial information available in determined those areas essential for the 15 vernal pool species that were proposed as critical habitat and subsequently finalized. However, the mapping scale that we used resulted in a more inclusive proposal. In our final determination, we had additional information available to us, including detailed aerial imagery and other information provided by commenters to assist us in refining our mapping of essential habitat. Please refer to the Background, Criteria Used to Identify Critical Habitat, and Unit Description sections of this rule for further discussion on how we determined habitat that is essential to the conservation of the 15 vernal pool species. After refining our proposal and weighing the best available information, we conclude that the areas designated by this final rule, including currently occupied and unoccupied areas, are essential for the conservation of these species.
Comment 2:
Several commenters held that nothing has changed from the listing of the species, and that our determination that the designation of critical habitat was not prudent or determinable should remain in place. One commenter stated that we did not evaluate whether critical habitat was determinable and that an analysis needs to be performed according to regulations.
Our Response:
As outlined in the Prudency Redetermination section of the proposed rule, at the time of the final listing determination for the 15 vernal pool species, we found that designation of critical habitat was not prudent for the vernal pool crustaceans and plants (excluding
Tuctoria mucronata
) because of potential threats, and that a designation of critical habitat was not beneficial for these species. Case law (
Conservation Council For Hawai'i
v.
Babbitt,
2 F. Supp.2d 1280 (D.Hawai'i 1998) and
Natural Resources Defense Council
v.
U.S. Dept. of Interior,
113 F.3d 1121 (9th Cir. 1997)) has changed how we balance the risks and benefits of critical habitat designations since we listed the 15 vernal pool species. In
Building Industry Association
v.
Babbitt,
979 F Supp. 893 (1997), we were directed by the court to reevaluate our not prudent determination for the four listed vernal pool crustaceans. Our record lead us to reconsider our previous not prudent determinations for the 11 plants in light of the new case law and policy. We have
determined that the threats to the vernal pool crustaceans and plants and their habitat from the specific instances of habitat destruction we identified in the final listing rules do not outweigh the broader educational, regulatory, and other possible benefits that a designation of critical habitat would provide for these species. We believe there is sufficient information available on the 15 vernal pool species to find that critical habitat is determinable for these species, and that an analysis of the impacts of the designation can be performed according to 50 CFR 424.12(a)(2)(i).
Comment 3:
Several commenters stated that the species are not threatened or endangered because of their widespread distribution.
Our Response:
Species may be listed under the Act if the species is in danger of extinction throughout all or a significant portion of its range by one or more of the five listing factors (endangered species), or if the species is likely to become endangered in the foreseeable future, throughout all or a significant portion of its range by one or more of the five listing factors (threatened species). The five listing factors as defined in the Act are: (A) The present or threatened destruction, modification, or curtailment of [a species'] habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural and manmade factors affecting [a species'] continued existence. These factors apply to both narrowly and widely distributed species.
As discussed in the final rules to list the 15 vernal species addressed herein, the vernal pool crustaceans and plants are threatened by habitat loss, degradation, and modification from land conversion and degradation to the extent that known populations are endangered, or likely to become endangered, throughout all or a significant portion of their range. Thus, the vernal pool species are threatened by Factor A and appear to meet the definitions of threatened or endangered, regardless of having a relatively extensive distribution.
Comment 4:
Several commenters believe that we cannot realistically determine critical habitat without first developing a recovery plan, and that the determination of critical habitat should be postponed until site specific surveys have been conducted and a recovery plan is in place.
Our Response:
Section 4 of the Act requires us to designate critical habitat at the time of listing to the maximum extent prudent and determinable. We concur that a recovery plan is a useful tool in assisting us with determining which areas are essential for the conservation of a species. We are currently developing a draft recovery plan for these vernal pool species, and have been able to use the information and gathered and analysis conducted to date for the draft recovery plan in helping us determine areas essential to the conservation of the 15 vernal pool species addressed herein.
Comment 5:
Several commenters reported that vernal pools provide a breeding source for mosquitoes. They stated that the designation would lead to an increase in diseases such as infection of the West Nile virus (
Flavivirus
sp.) and other mosquito-vectored diseases.
Our Response:
The best information available to us indicates that non-degraded vernal pools and swales do not provide a significant breeding source for mosquitoes. Mosquitoes do not appear in vernal pools until very late in the season, when they are unlikely to complete their development before the pools dry (Wright 1991). Female mosquitoes are attracted to gases produced by fermentation that indicate an abundance of decaying organic matter suitable for food for mosquito larvae (Wright 1991). This is the likely cue used by females mosquitos to select oviposition sites. Healthy vernal pools appear to have relatively low levels of decaying organic material, which makes them undesirable as oviposition sites for gravid mosquitoes (Wright 1991). Only late in the season, when the abundance of invertebrates in vernal pools begins to decline, are enough nutrients and organic material available to make the vernal pools attractive to mosquitos. By this time, however, it is often too late for the mosquito larvae to develop before the pools dry.
Comment 6:
One commenter stated that there are occurrences of the vernal pool plants and vernal pool crustaceans on protected lands, and for this reason, additional lands are not needed for the conservation of the species. Other commenters contended that the acreage in the proposed rule should represent the minimum amount of land considered critical for the 15 vernal pool species.
Our Response:
We recognize that while some occurrences of the vernal pool plants and vernal pool crustaceans are found on protected public and private lands, only about 16 percent of the lands designated as critical habitat are on Federal land or are protected by a conservation easement. A smaller percentage of these lands are managed for protection of vernal pool resources and specifically for the species addressed in this rule. Restricting the designation to currently protected lands would exclude areas that we believe are essential to the conservation of the 15 vernal pool species. We based the designation on the best scientific available and determined that the designation identifies those areas believed to be essential for the conservation of the species.
Comment 7:
The California Army National Guard (ARNG) asks that Camp Roberts be excluded from the final critical habitat designation (ARNG 2002a). Letters from Fort Hunter Liggett and the Headquarters of the United States Army Reserve Command state they do not agree with designating critical habitat on the base, and that the designation is not necessary to protect vernal pool fairy shrimp (Fort Hunter Liggett 2002b; Department of the Army 2002).
The letters from Camp Roberts and Fort Hunter Liggett present numerous reasons why critical habitat designation is not warranted on the two bases. Some of these reasons include: suggestions that each installation has an Integrated Natural Resources Management Plan (INRMP) that provides protective measures for vernal pool fairy shrimp; the two bases are implementing numerous activities that conserve vernal pool fairy shrimp habitat; and critical habitat designation would adversely affect the National Guard and Army's abilities to meet their mission,
i.e.
, train soldiers for combat situations.
Our Response:
Camp Roberts and Fort Hunter Liggett have drafted INRMPs that we have not signed. The current documents are therefore working drafts that are being revised as the National Guard and Army work together with us to finalize conservation strategies that will benefit all listed species on the two bases. After adequate conservation strategies for all listed species on the bases are incorporated into the two INRMPs, we expect to sign the documents and will consider them final. We recognize the military is implementing measures to conserve existing locations of vernal pool fairy shrimp and the habitat they occupy. These activities include periodic monitoring of selected pools, control of exotic plant species that may alter vegetation communities around vernal pool habitat, fencing or delineation of areas known to contain vernal pool fairy shrimp, and use of review processes designed to avoid or minimize effects that may arise during military training activities and base operations. We
believe additional measures are needed to promote natural ecosystem processes that benefit listed fairy shrimp and these items will continue to be the focus of future discussions with the military. We recognize that designation of critical habitat has the potential to modify military training operations and the use or development of base facilities. We have determined that the benefits of excluding these facilities outweigh the benefits of including them. Subsequently, Camp Roberts and Fort Hunter Liggett have been excluded from this final designation of critical habitat.
Comment 8:
One commenter requests that the Indian Valley Cattle Company and Porter Ranch Estate properties be excluded from the Bradley-San Miguel critical habitat subunit in Monterey County. The commenter references a letter from a consulting firm which states that habitat mapping on one or both of the above-mentioned properties was done, and that suitable habitat for fairy shrimp does not appear to be present. The consultant's letter states that another company conducted fairy shrimp surveys on the Porter Ranch Estate, and these investigators did not find fairy shrimp.
Our Response:
The Service's “Interim Survey Guidelines to Permittees under Section 10(a)(1)(A) of the Endangered Species Act for the Listed Vernal Pool Branchiopods'' is used to establish the presence or absence of listed fairy shrimp on a particular property. The guidelines recommend that two wet season surveys for adult fairy shrimp, or one wet season survey for adult and one dry season survey for fairy shrimp cysts, be done at a site to determine the presence or absence of fairy shrimp. Both surveys should demonstrate that fairy shrimp are absent before the Service will concur with a determination that fairy shrimp are absent from a site. We received a report from a consultant in 2001 that states ephemeral aquatic habitat may occur on the Porter Ranch Estate. We also received documents that indicate two wet season surveys were conducted on that property. The second wet season survey was done during a year when rainfall conditions were not conducive to detecting adult fairy shrimp,
i.e.
, aquatic habitat was not present during the second survey, and it would not therefore have been possible to determine the presence or absence of fairy shrimp. We do not have appropriate documentation at this time that allows us to conclude that fairy shrimp are absent from the Porter Ranch Estate.
While we do not have specific information that demonstrates that fairy shrimp occur on the Indian Valley Cattle Company and Porter Ranch Estate properties, we know vernal pool fairy shrimp occur on the Camp Roberts military base 1 mi (1.6 km) west of Porter Ranch Estate and 0.5 mi ( 0.8 km) south of the Indian Valley Cattle Company property. We believe additional undocumented occurrences of listed fairy shrimp are likely to occur in suitable habitat on private property near Camp Roberts. We also believe several unmapped vernal pools are likely to occur on or near the two aforementioned properties because the presence of several hundred vernal pools on Camp Roberts suggests that these features are present within the local landscape. The Indian Valley Cattle Company and Porter Ranch Estate properties are up gradient and in close proximity to known and suspected vernal pool fairy shrimp occurrences, and it is likely that water that originates on these properties travels down gradient and contributes to the maintenance of the hydrology and water quality of vernal pools that are occupied by listed fairy shrimp on or near the Camp Roberts military base.
Following our evaluation of these lands, we still believe the Indian Valley Cattle Company and Porter Ranch Estate properties are within the localized watershed that contains essential vernal pool habitat, and they contribute to the maintenance of their hydrology. Consequently, it is our determination the land on these properties is essential to the conservation of vernal pool habitat and should not be excluded from designated critical habitat.
Comment 9:
One individual asks that the Estrella Ranch area in San Luis Obispo County be removed from the Paso Robles critical habitat subunit. The landowner does not believe fairy shrimp or vernal pool habitat exist on that ranch, and they are concerned that critical habitat designation will affect their family's ranching activities.
Our Response:
The Estrella Ranch occurs within a localized watershed that contains documented occurrences of listed fairy shrimp. Vernal pools complexes measuring at least 10 ac (4 ha) in size have been mapped within 1-2 mi (1.6-3.2 km) of Estrella Ranch. These complexes were identified during a habitat mapping contract (Holland 2003). The mapping contract did not attempt to map wetlands less than 10 ac (4 ha) in size, and it is likely that smaller, unmapped vernal pools or vernal pool complexes which provide the necessary conditions for vernal pool fairy shrimp to hatch, grow, and reproduce are present in the local area.
Estrella Ranch is up gradient of vernal pool complexes that have been mapped, and the topography of the ranch suggests water that originates on that property is likely to travel down gradient and contribute to the amount, duration, and frequency of water flow necessary to maintain vernal pools southwest of the ranch property boundary.
We believe Estrella Ranch occurs within a localized watershed that contains essential vernal pool habitat, and the ranch contributes to the maintenance of their hydrology. Consequently, it is our determination this property is essential to the conservation of documented vernal pool habitats, and should not be excluded from designated critical habitat.
Critical habitat designation will not affect the private landowner unless specific portions of their property possess the primary constituent elements associated with vernal pool fasiry shrimp critical habitat, and the landowner proposes a project that would involve a Federal nexus. The landowner has told Service employees he has historically avoided projects that would create a Federal nexus. Consequently, we do not believe the designation of critical habitat on Estrella Ranch will significantly affect the landowner's ranching activities.
Comment 10:
One individual associated with the Coastal Alliance on Planned Expansion asks that we evaluate the possibility that fairy shrimp are adversely affected by the operation of a power plant near the Morro Bay National Estuary in San Luis Obispo County. The commentor is concerned that use of ocean water to cool various hardware components at the power plant may affect fairy shrimp.
Our Response:
Fairy shrimp are inland species and are not associated with marine environments. The intake of water to cool the power plant near Morro Bay does not have the potential to adversely affect vernal pool fairy shrimp or their habitat.
Comment 11:
A number of commenters expressed concern over the appropriateness of the proposal of Unit 33A for vernal pool fairy shrimp. Riverside County Flood Control and Water Conservation District stated that the Unit boundary is based on their “approximate riverine flood plain” boundary and suggested that a more detailed analysis of local hydrologic sources and watersheds associated with vernal pools would be more accurate. Other concerns raised were: (1) The vernal pool fairy shrimp is not associated with riverine systems; (2) the Unit contains areas which do not
contain vernal pools and do not meet the proposed rule's definition of critical habitat; (3) vernal pool fairy shrimp have not been documented in the San Jacinto Unit (33A); and (4) vernal pool fairy shrimp and the common versatile shrimp (
Branchinecta lindahli
) cannot co-occur.
Our Response:
Although the boundary of the Unit 33A is the approximate 20-year floodplain as identified by Riverside County Flood Control and Water Conservation District, it was used because more than 99 percent of the known vernal pool associated species in the floodplain occur within area delineated by that boundary. The reach of the San Jacinto River included in the designation is extremely flat, causing the river to pond on the floodplain from the low-flow channel to the approximate 100-year floodplain. In the rainy season, the river floodplain contains vernal pools, moist flats, and other ephemeral wetlands. Areas which do not expressly contain ephemeral wetlands or vernal pools are included to provide hydrology to vernal pools.
Although surveys conducted in this unit during 2000 failed to detect vernal pool fairy shrimp, although the common versatile fairy shrimp was detected, it is important to note that not all of the pools in the floodplain were surveyed, and rainfall conditions were not conducive to detecting fairy shrimp. (
i.e.
, in some places pools did not fill or filled only briefly'an insufficient time for shrimp, if present, to hatch).
This unit can be characterized as an alkali playa, one of the habitat types that supports vernal pool fairy shrimp, and shares soil and hydrologic characteristics with Unit 33B, where the common versatile and vernal pool fairy shrimp co-occur. Both species are also present at Skunk Hollow. Eriksen and Belk (1999) also report that the common versatile fairy shrimp is known to co-occur with the vernal pool fairy shrimp, although the two species may be detectable at varying times during a vernal pool's wet phase.
This unit is essential to vernal pool fairy shrimp because it represents the largest unfragmented, hydrologically and ecologically functional vernal pool complex in the southern portion of the species' range. The area of habitat is large enough to allow localized occurrences to expand and contract, providing for normal population dynamics and making the populations within this unit less susceptible to environmental variation or negative impacts associated with human disturbances or naturally occurring catastrophic events. Although it is not known to be occupied, it contains the same edaphic and land form characteristics as lands within Unit 33B, which is occupied by the species.
Comment 12:
One commenter stated that the Riverside County units (33-35) should be removed from designation because they represent only a small portion of the range of the vernal pool fairy shrimp, and these areas are already being protected.
Our Response:
The area proposed as critical habitat for the vernal pool fairy shrimp in Riverside County does comprise a small portion of the overall area proposed as critical habitat for the species. However, the vernal pools in these units supporting populations of the vernal pool fairy shrimp represent the southernmost distribution of the species in the Unites States. They are essential to ensuring the genetic and geographic distribution of the species necessary for its long-term conservation.
We are excluding the critical habitat in Riverside County, California (Units 33, 34 and 35) from this final designation. We are excluding Unit 33 for the vernal pool fairy shrimp from final designation because the vernal pool habitat within this unit will be covered by the draft Western Riverside Multiple Species Habitat Conservation Plan (MSHCP). Although the MSHCP has not been finalized the measures afforded within the plan and the current assurances that the plan will be completed will assist in the conservation of the species. We are also excluding Unit 34 for the vernal pool fairy shrimp from final designation because the vernal pool within this unit is covered by an approved, legally operative HCP. Although the Rancho Bella Vista HCP does not include the vernal pool fairy shrimp as a covered species, the endangered Riverside fairy shrimp is covered by this HCP. Because the Riverside fairy shrimp co-occurs with the vernal pool fairy shrimp in this unit, we anticipate that management actions taken to conserve Riverside fairy shrimp will provide equal benefits to the vernal pool fairy shrimp. We have also excluded Unit 35 for vernal pool fairy shrimp from final designation because this area, which lies within the Santa Rosa Plateau Ecological Reserve, is managed for the conservation of vernal pools that support populations of the vernal pool fairy shrimp. Please refer to the Relationship of Critical Habitat to Habitat Conservation Plans, Relationship of Critical Habitat to the Western Riverside Multiple Species Habitat Conservation Plan, and Relationship of Critical Habitat to Santa Rosa Plateau Ecological Reserve: A State, Federal, and Local Cooperatively Managed Reserve sections of this final rule for a more detailed discussion of these exclusions.
Comment 13:
Riverside County Flood Control and Water Conservation District stated that they are working with the City of Hemet to model the watershed in Unit 33B. They suggested that the designation be reduced or eliminated until the information is available.
Our Response:
We have excluding Unit 33 from this final designation of critical habitat for the 15 vernal pool species on the basis of the development of the Western Riverside Multi-Species Habitat Conservation Plan (see Response to Comment 12 above).
Issue 2—Costs and Regulatory Burden
Comment 14:
Regarding the Fort Ord Unit of critical habitat for
Lasthenia conjugens,
the Bureau of Land Management (BLM) provides comments about inclusion of two parcels, totaling less than 40 ac (16.2 ha), that are (or will be) transferred to the BLM and are designated for development under the Army's existing base cleanup, disposal, and reuse plan. The BLM expresses concern that inclusion of these parcels may require numerous consultations with us for small BLM development projects, such as the construction of a storage shed, that would have minor or negligible impacts on the species and its critical habitat. This would add an undue regulatory burden on BLM and the Service.
Our Response:
All Federal agencies are required to evaluate whether projects they authorize, fund, or carry out, may adversely affect a federally listed species and/or its designated critical habitat. The parcels under discussion do not possess ephemeral wetlands themselves, but activities on them may affect the watershed of ephemeral wetlands located on adjacent parcels. To improve the efficiency of the consultation process, we recommend BLM staff with hydrologic expertise evaluate the potential for BLM activities to affect the hydrology of ephemeral wetlands in critical habitat. If BLM projects are not likely to adversely affect critical habitat, then a consultation with us would not be necessary. For projects that are likely to have only discountable, insignificant, or wholly beneficial effects on critical habitat, we would concur in writing and no further consultation will be necessary. For projects likely to have adverse affects on critical habitat, formal consultation would be required pursuant to section 7 of the Act. We encourage BLM to pursue a programmatic evaluation of, and consultation on, its current and future activities on former Fort Ord lands. In regard to these specific parcels, we have
adjusted the boundaries of Unit 9 to remove the steep terrain in and around Impossible and Wildcat Canyons, for reasons discussed in the Summary of Changes From the Proposed Rule section. This has resulted in the removal of one of the above-mentioned parcels from this critical habitat designation. A 13 ac (5.3 ha) BLM development parcel remains in critical habitat.
Comment 15:
The Army requests that we exclude areas from
Lasthenia conjugens
critical habitat within former Fort Ord (Unit 9) that are designated for future development under the Army's Habitat Management Plan (HMP). They state that their HMP, which describes the conservation strategy for cleanup, disposal, and reuse of the former base, meets the three criteria we use to consider whether a plan provides adequate special management or protection. The Army suggests these areas be excluded pursuant to section 3(5)(A) of the Act, because they do not require additional special management or protection under the HMP. The Army also requests that we exclude these areas, pursuant to section 4(b)(2) of the Act, because the benefits of excluding them outweigh the benefits of including them in critical habitat. The specific parcels they request be excluded are the BLM development parcel, the Military Operations-Urban Terrain Facility, Wolf Hill, and those portions of East Garrison identified for future development, a total of fewer than 200 ac (90 ha).
Our Response:
The 28,000 (11,331 ha) former Army base at Fort Ord is managed under an HMP that, along with several additional commitments from the Army, provided the basis for a non-jeopardy biological opinion in 1999 on the effects of base closure and reuse on
Lasthenia conjugens.
This biological opinion encompassed the full base and, therefore, the entire critical habitat unit. We determined at that time that the configuration of habitat reserve and development lands in the HMP will not jeopardize the continued existence of
Lasthenia conjugens.
The HMP requires that management of designated development parcels that border habitat reserve lands incorporate measures to avoid erosion and vehicle access that could degrade habitat reserve lands, including those designated as critical habitat for
Lasthenia conjugens.
However we conclude that, at this time, the conservation strategy outlined in the HMP for base reuse and closure does not provide sufficient management and protections to the extent that these lands do not meet the definition of critical habitat. Completion of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) process in which the Army is currently engaged, and completion of an HCP by entities that are to receive transferred lands, followed by our issuance of an incidental take permit for these lands, would likely be considered adequate special management such that these lands could be removed from critical habitat.
We have reviewed the circumstances at former Fort Ord and conclude that exclusions under sections 3(5)(A) and 4(b)(2) of the Act are not appropriate for lands in this unit. In past circumstances, we have either not included or excluded lands from critical habitat, pursuant to section 3(5)(A) of the Act, when we have determined that the lands are either not essential to the conservation of the species, or have adequate special management considerations or protections. If an area has adequate management or protections for the species and its habitat then the area does not meet the definition of critical habitat and consequently either not included or excluded if originally proposed. At former Fort Ord, the lands for which exclusions were requested are designated for development under the base closure and reuse plan and the management of these lands for vernal pool habitat and species is not adequately addressed under the HMP. The lands are also not intended to receive further protection under that plan. Therefore, a definitional exclusion from critical habitat pursuant to section 3(5)(A) of the Act, where lands would not require special management considerations or protections because those provisions are already in place, would not be warranted for these lands.
We also evaluated these parcels for exclusion from critical habitat pursuant to section 4(b)(2) of the Act. Section 4(b)(2) of the Act allows the Secretary to “exclude any area from critical habitat if [it is determined] that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, * * * unless the failure to designate such area * * * would result in the extinction of the species.” In evaluating whether the benefits of excluding these lands outweigh the benefits of including them, we considered economic impact and any other relevant impact associated with their inclusion. In the case of former Fort Ord, we evaluated whether an increase in Federal consultations was likely to occur due to the inclusion of these lands, resulting in an economic cost. We concluded that Federal consultation requirements would be essentially unchanged by the inclusion of theselands. Therefore, none of the costs associated with increased consultation requirements base-wide are likely to result from inclusion of these lands. The Army did not indicate any other costs associated with inclusion of these lands, nor could we identify any. Therefore, we concluded there are no benefits of excluding these lands from critical habitat. We weighed this against any benefits that might accrue from inclusion of these lands in critical habitat. We determined that a small benefit of inclusion would be the increased attention the designation would bring to those parcels designated for development that are adjacent to, and likely within the watershed of, vernal pools. The inclusion of these lands in critical habitat would remind land managers of the need to consider the presence of the vernal pool watershed in planning and implementing Federal actions. We weighed this benefit of inclusion against the benefits of exclusion. We conclude that the benefits of exclusion do not outweigh the benefits of inclusion. We have, therefore, included these lands in the critical habitat designation, except as discussed below.
We have adjusted the boundaries of the Fort Ord Unit to remove the steep terrain in and around Impossible and Wildcat Canyons, for reasons discussed in the Summary of Changes From the Proposed Rule section. The Military Operations-Urban Terrain Facility and Wolf Hill parcels (totaling about 110 ac (44.5 ha) discussed above are located in this region and are therefore not part of designated critical habitat.
Comment 16:
The U.S. Air Force requests that lands at Beale Air Force Base (AFB) and Travis AFB be excluded because the designation would increase the costs and regulatory requirements and hamper the Air Force on carrying out the mission objectives for the two AFBs.
Our Response:
In response to the U.S. Air Force's requests that lands at Beale AFB and Travis AFB be excluded because the designation would increase the costs and regulatory requirements and hamper the Air Force's ability to carry out their mission objectives for the two AFBs, we have excluded these AFB installations from final designated critical habitat pursuant to section 4(b)(2) of the Act. Please refer to the Relationship of Critical Habitat to Military Lands section of this final rule for a detailed discussion of our rationale for excluding these AFBs pursuant to section 4(b)(2) of the Act.
Comment 17:
Several commenters expressed concern that the designation would curtail or eliminate livestock grazing in areas containing vernal pools.
Our Response:
Only those activities which are federally funded or authorized that may affect critical habitat would be subject to the regulations pertaining to critical habitat. We recognize and acknowledge that certain levels of livestock grazing likely have no impact on vernal pool ecosystems, and may be beneficial for maintaining them. Since the vast majority of vernal pool habitat within the designation is occupied by the listed vernal pool species and occurs on privately owned lands, the designation of critical habitat is not likely to result in a significant increase in regulatory requirements above those already in place due to the presence of the listed species.
Vernal pools and the species within this rule evolved with the presence of large ungulate grazing. Grazing deters the encroachment of grass and other upland species into the vernal pools, and reduces the vegetative cover of upland areas potentially allowing space for soil dwelling pollinator species to exist. However, the amount and timing of grazing can greatly influence species abundance and composition within each vernal pool.
Comment 18:
California Army National Guard-Camp Roberts and Fort Hunter Liggett provide analyses that describe anticipated economic impacts that would arise on the military bases and in surrounding communities if critical habitat is designated for vernal pool fairy shrimp on their property. Camp Roberts estimates the impacts from critical habitat to be approximately $95.4 million (ARNG 2002b). The majority of these costs would accrue because the military believes a critical habitat designation would create a need to relocate training activities to other military bases where critical habitat is not designated. They also believe 31 projects may need to be canceled or substantially modified during the next 20 years. The letter from Camp Roberts also states that local communities around the base would also be affected by critical habitat designation, and the potential effects to these communities are estimated to be $50.5 million.
Staff at Fort Hunter Liggett believe the cost of designating critical habitat on their base would be approximately $7.35 million over a 10-year period (FHL 2002b). The Army believes a $5 million cost would be incurred because of changes to a prescribed fire program. Additional costs may be incurred because Fort Hunter Liggett staff estimate they will need to complete 36 informal and 16 formal consultations during the next 20 years as a result of the critical habitat designation. The letter also states that the Army believes our cost estimates associated with the critical habitat designation, as described in the economic analysis, are too low.
Our Response:
California Army National Guard-Camp Roberts and Fort Hunter Liggett provide analyses that describe anticipated economic impacts that would arise on the military bases and in surrounding communities if critical habitat is designated for vernal pool fairy shrimp on their property. Camp Roberts estimates the impacts from critical habitat to be approximately $95.4 million (ARNG 2002b). The majority of these costs would accrue because the military believes a critical habitat designation would create a need to relocate training activities to other military bases where critical habitat is not designated. They also believe 31 projects may need to be canceled or substantially modified during the next 20 years. The letter from Camp Roberts also states that local communities around the base would also be affected by critical habitat designation, and the potential effects to these communities are estimated to be $50.5 million.
Staff at Fort Hunter Liggett believe the cost of designating critical habitat on their base would be approximately $7.35 million over a 10-year period (FHL 2002b). The Army believes a $5 million cost would be incurred because of changes to a prescribed fire program. Additional costs may be incurred because Fort Hunter Liggett staff estimate they will need to complete 36 informal and 16 formal consultations during the next 20 years as a result of the critical habitat designation. The letter also states that the Army believes our cost estimates associated with the critical habitat designation, as described in the economic analysis, are too low.
Comment 19:
A planner from the City of El Paso Robles asks that we describe what effect critical habitat designation has on new development projects. The letter suggests critical habitat designation results in the need to set aside vernal pools as ecological preserves. A facsimile transmittal from a small farming company also asks that we describe how critical habitat designation could affect their farming operations.
Our Response:
The designation of critical habitat requires that Federal agencies consult with us on actions they carry out, fund, or authorize that might destroy or adversely modify the critical habitat. A critical habitat designation has no effect on actions where a Federal agency is not involved (Federal nexus). For example, a landowner undertaking a lawful project on private land that involves no Federal funding or Federal permits would not be affected by the critical habitat designation. If a Federal nexus did develop on private land that was included in a critical habitat unit,
e.g.
, a private landowner needed a permit from the U.S. Army Corps of Engineers (Corps) for fill to be placed in a wetland, the project would need to undergo a review process with the Service.
Under the Act, a critical habitat designation establishes a geographic area that is essential for the conservation of threatened or endangered species and may require special management considerations or protections. However, a designation does not affect the land ownership or establish a refuge, wilderness, reserve, preserve, or other special conservation area. It does not allow government or public access to private land, and will not result in the closure of the area to all access or use. Rather, it triggers the requirement that Federal agencies must consult with us on activities they fund or carry out that might affect critical habitat. Please refer to the Effects of Critical Habitat section below for further explanation of effects of critical habitat designation and its effects on development and farming operations.
Issue 3—Notification and Public Comment
Comment 20:
A number of commenters stated that landowners were either not notified, or not notified in a timely manner, and given an adequate opportunity to comment on the proposed designation. The commenters also stated that the number of public hearings was inadequate to obtain full public input on the proposal and that additional public hearings should be held. Several commenters stated that the 30-day comment period for the DEA violated 50 CFR 424.16(c)(2) and requested that we extend the comment period on the proposed designation and draft economic analysis to allow for additional outreach to interested parties as well as hold more public hearings.
Our Response:
We are obligated to hold at least one public hearing on a listing proposal if requested to do so prior to 15 days before the end of a comment period (16 U.S.C. 1533(b)(5)(E)). We held a total of 6 public hearing on our proposal to designate critical habitat for the 15 vernal pool species: two public hearings on October 22, 2002, in San Luis Obispo, California; two in Medford, Oregon, on October 24, 2002; and two on October 24, 2002, in Sacramento, California. We also organized three public workshops to notify the public of
the proposed designation and to answer questions regarding critical habitat and the proposed rule: October 3, 2002, in Chico, California; October 16, 2002, in Fresno, California; and October 17, 2002, Sacramento, California. In addition to the public hearings and public workshops, we attended a public meeting organized by the Merced County Council in Merced, California on November 12, 2002, to discuss the proposed designation of critical habitat and answer questions regarding the area designated within Merced County. We provided information on where to obtain copies of the proposed rule and how to access the critical habitat website showing maps of the designation.
Written public comments were accepted at all the public hearings, workshops, and the Merced County Council meeting and entered into the supporting record for the rulemaking. Oral comments given at the public hearings were also accepted into the supporting record. In making our decision on the critical habitat designation, written comments were given the same weight as oral comments presented at hearings. We conducted much of our outreach through legal notices in numerous regional newspapers, telephone calls, letters, and news releases faxed and/or mailed to affected officials, local jurisdictions, and interest groups. We also posted the proposed determination, schedule of workshops and hearings, and other associated material on our Sacramento Fish and Wildlife Office internet site. We believe that we went through an elaborate and extensive notification and outreach process to make the public aware of this proposal. Further, our efforts in this process satisfied the requirements of the Act and the Administrative Procedures Act (5 U.S.C. 551
et seq.
) (APA) for promulgating Federal regulations regarding listing actions.
Comment 21:
The broad scale of the proposed critical habitat maps are not specific enough to allow for reasonable public comment, therefore, violating the Act, the APA, and 50 CFR 424.12(c).
Our Response:
Regulation 50 CFR 424.12(c) requires us to define critical habitat according to “specific limits using reference points and lines as found on standard topographic maps of the area.” We have done this by basing critical habitat legal descriptions on Universal Transverse Mercator (UTM) gridlines set every 328 feet (ft) (100 meters (m)). In addition to the legal descriptions, we also published maps providing an overview of the critical habitat boundaries in the proposed rule. While the
Federal Register
maps are only intended for illustrative purposes, we do provide more detailed critical habitat maps on request. These detailed maps show specific critical habitat areas of interest overlaid on 1:24,000 scale U.S. Geological Survey (USGS) topographic maps. Additionally, we developed an interactive internet site which shows vernal pool critical habitat boundaries overlaid on a 1:250,000 scale USGS topographic maps. The site allows users to pan to and magnify any area of interest. The Internet site was not completed by the September 24, 2002, publication date of the proposed rule, but we did direct interested parties who contacted us to the site when it became available on October 10, 2002, and posted information and a link to the internet site from our Sacramento Fish and Wildlife Office Internet site.
Issue 4—Property Rights
Comment 22:
Several commenters stated that the designation will result in a loss of public property rights and will decrease land values.
Our Response:
The designation of 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 closure of private or State areas to all access or use. The designation of critical habitat on privately-owned land does not mean the government wants to acquire or control the land. Critical habitat does not require landowners to carry out any special management actions or restrict the use of their land. Activities on private lands that do not require Federal permits, funding, or authorization are not affected by the designation of critical habitat. Consequently, critical habitat should not result in effects to property rights, and as previously discussed, property values.
Comment 23:
Several commenters expressed concern that the proposed rule and subsequent designation will have significant takings implications, and that the designation is a “land grab” by the Federal government and that the landowners should be compensated.
Our Response:
As we discussed in the Takings section of our proposed rule, we believe that, in accordance with Executive Order 12630, the designation of critical habitat for the 15 vernal pool species will not have significant takings implications. Our conclusion was based on the results of an initial takings implication assessment in which we determined that: (1) The designation would result in little additional regulatory burden above that currently in place due to the 15 vernal pool species being federally listed because the majority of the designation is occupied by the species, and (2) the designation of critical habitat will not affect private lands in which there is not a Federal nexus. Consequently, we do not anticipate that property values, rights or ownership will be significantly affected by the critical habitat designation.
Comment 24:
Several commenters expressed confusion regarding the types of agricultural activities and land use practices that, as a result of the designation, would may trigger a consultation under section 7 of the Act. Other commenters stated that the government will now oversee agricultural and ranching practices as a result of the Borden Ranch case (
Borden Ranch Partnership
v
U.S. Army Corps of Engineers
(9th Cir. 2001) 261F.3d 810,816.).
Our Response:
Activities carried out, funded, authorized or permitted by a Federal agency (
i.e.
, Federal nexus) require consultation pursuant to section 7 of the Act if they may affect a federally listed species and/or its designated critical habitat. Our experience with consultations on the 15 listed vernal pool species is that few agricultural activities have involved a Federal nexus and have not required a consultation under section 7 of the Act. The Borden Ranch legal case, referenced above, involved the Clean Water Act and unauthorized fill of wetlands. Specifically, the activity that took place was not considered a routine agricultural practice, and thereby subject to regulation by the Army Corps of Engineers under the Clean Water Act. In regard to grazing, we do not foresee any change in the ability of private landowners to graze their property as a result of this designation. In addition, we anticipate that many activities, including grazing, presently occurring in areas designated as critical habitat can be managed to be compatible with the needs of vernal pool species and their habitat.
Issue 5—Mapping Methodology
Comment 25:
Several commenters noted that the proposed critical habitat includes areas that do not contain the PCEs for the vernal pool crustaceans and vernal pool plants. This resulted in the following concerns: (a) That the boundaries of critical habitat should have been more precisely defined to exclude areas which obviously did not contain PCEs; (b) that private property would be affected by the designation even though it did not support the federally listed vernal pool species or
their PCEs; (c) that the designation would place a burden on landowners to refute the presumption that specific lands within critical habitat boundaries possess the PCEs of the species; (d) that we had incorrectly stated in the proposed rule that we would only designate areas containing the PCEs of the species; (e) that there was no biological justification for using a landscape-scale approach when more detailed information is available; and (f) that the designation, as proposed, was not in keeping with the requirement of the Act to “narrowly define critical habitat.”
Our Response:
As we have discussed in our response to Comment 21, we are required to define and delimit critical habitat “by specific limits using reference points and lines as found on standard topographic maps of the area” (50 CFR 424.12(c)). We have delimited the boundaries of critical habitat boundaries in this rule based on a minimum mapping scale of 100 meters. This mapping scale was based on the availability and accuracy of aerial photography and GIS data layers used to develop
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