Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Riverside Fairy Shrimp (Streptocephalus woottoni)

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018—AT45

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Riverside Fairy Shrimp (

Streptocephalus woottoni

)

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the federally endangered Riverside fairy shrimp (

Streptocephalus woottoni

) pursuant to the Endangered Species Act of 1973, as amended (Act). The critical habitat designation encompasses approximately 306 acres (ac) (124 hectares (ha)) of land within Ventura, Orange, and San Diego counties, California.

DATES:

This rule becomes effective on May 12, 2005.

ADDRESSES:

Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection, by appointment, during normal business hours, at the Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad, California 92009 (telephone 760/431-9440). The final rule, economic analysis, and maps of the designation are also available via the Internet at

http://carlsbad.fws.gov.

FOR FURTHER INFORMATION CONTACT:

Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, at the above address (telephone 760/431-9440; facsimile 760/431-9618).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection to Species

In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts 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 are 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 Act can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.” Currently, of the 1,253 listed species in the U.S. under the jurisdiction of the Service, only 470 species (38 percent) have designated critical habitat.

We address the habitat needs of all 1,244 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.

We note, however, that the recent 9th Circuit judicial opinion in the case of

Gifford Pinchot Task Force

v.

United States Fish and Wildlife Service

has invalidated the Service's regulation defining destruction or adverse modification of critical habitat. We are currently reviewing the decision to determine what effect it may have on the outcome of consultations pursuant to section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits for our failure to designate critical habitat, 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, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species and final listing determinations on existing proposals are all significantly delayed.

The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially-imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively 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 the National Environmental Policy Act (NEPA). None of these costs result in any benefit 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

Among the rarest animal species endemic (native) to Southern California is a tiny freshwater crustacean known as the Riverside fairy shrimp (

Streptocephalus woottoni

). Its distribution is highly restricted, with most of the known populations of the endangered Riverside fairy shrimp observed in vernal pools located in portions of a few counties and 50 miles (mi) (24 kilometers (km)) or less from the California coast, and ranging only approximately 125 mi (200 km) from its known northern limit (Ventura and Los Angeles counties) to its southern limit (Mexico border, San Diego County) within the U.S. (Eng

et al.

1990; Simovich and Fugate 1992; Eriksen and Belk 1999; Service 2004 (69 FR 23024)). It does not occur in the nearby desert or

mountain areas (Hathaway and Simovich 1996). It is also among the most recently discovered freshwater crustacean species in California, first identified in 1985 as a unique species (Eng

et al.

1990) in the genus

Streptocephalus

(Baird 1852). With 63 species that occur worldwide (retrieved February 22, 2005, from the Integrated Taxonomic Information System on-line database,

http://www.itis.usda.gov

),

Streptocephalus

is the most species-rich genus within the aquatic crustacean order Anostraca, which comprises over 258 fairy shrimp species and 7 subspecies worldwide, organized into 21 genera (Belk

et al.

1993). The fairy shrimp (Anostraca) are, except for one other group, the most primitive living crustaceans, or members of the sub-phylum Crustacea (Eriksen and Belk 1999). Among the 23 fairy shrimp (Anostracan) species that are found in California, 8 species are found only in this State, giving California the highest level of endemism for any comparable geographic region in North America (Eng

et al.

1990), and resulting in the highest number of species occurring in a comparable land area in both North America and worldwide (Eriksen and Belk 1999). Despite this fact, the level of knowledge about many Anastrocans is relatively low due to the relative recentness of their discovery.

The Riverside fairy shrimp and vernal pool crustaceans in general, occupy the first consumer level in the food chain, and thus constitute a cornerstone in the food web. Fairy shrimp form an important food source for an array of aquatic and terrestrial species, from diving beetles, backswimmers (Notonectids), vernal pool tadpole shrimp (

Branchinecta

species), predaceous aquatic insects and their larvae, to waterfowl and shorebirds, and occasionally even for frogs, toads, and tadpoles (Eriksen and Belk 1999). Humans have also been known to consume fairy shrimp; tribes in California have been known to extensively consume dried

Artemia

, and

Tripos

is said to be used as food by some natives in Mexico (Pennak 1989).

The Riverside fairy shrimp, along with numerous sensitive and rare plant species, lives only in vernal pools, vernal ponds, swales, and ephemeral (short-lived) freshwater habitats. A vernal pool (including vernal pond and vernal lake) is defined as an area of shallow depression, usually underlain by some subsurface layer which prohibits drainage into the lower soil profile, thus causing water to collect during the rainy winter season (Holland 1976; Chetham 1976; Weitkamp

et al.

1996),

i.e.

, the depression is inundated for portions of the wet season, when temperatures are sufficient for plant growth (Keeley and Zedler 1998). Following a brief waterlogged period during the late wet season or early dry season, a vernal pool will eventually drain and dry out, followed by an extended period of extreme soil-drying conditions (Keeley and Zedler 1998; Rains

et al.

2005). Swales are defined as shallow drainages that carry water seasonally. Central to the distinctive ecology of vernal pools is that they are vernal, or ephemeral,

i.e.

, occurring only temporarily, during late winter and spring. The water in vernal pools stands sufficiently long to prohibit zonal vegetation growth (Holland 1976), yet not long enough to allow for colonization by fish species. Vernal pool habitat thus forms a unique type of ecosystem, different in character and species composition from the surrounding habitats (Service 2003; 68 FR46684), and being intermediate between marsh (nearly always wet) and most zonal vegetation communities (nearly always dry) (Holland 1976). In California, where extensive areas of vernal pool habitat have developed over long periods, unique species groups have evolved special adaptations to allow them to survive the unusual conditions of vernal pools. Vernal pools are often defined by their unique, often endemic, flora as well (Smith and Verrill 1998).

The Riverside fairy shrimp occupies, and is thus completely dependent upon, vernal pools to survive. A combination of physical and environmental factors allows for the annual formation and maintenance of their vernal pool habitat. Vernal pools form generally where there is a Mediterranean climate,

i.e.

, a wet season during fall and winter, when rainfall exceeds evaporation and fills the pools, followed by a spring and summer dry season, when evaporation exceeds rainfall and the pools dry up. A typical vernal pool season is characterized by an inundation phase, an aquatic phase, a water-logged drying phase, and a dried-out phase (Keeley and Zedler 1998). Thus, the water regime (hydrologic system) is crucial to the formation and functioning of a healthy vernal pool ecosystem. Some pools fill entirely from direct precipitation (Hanes and Stromberg 1998), while others have a substantial watershed, including both surface, subsurface, and groundwater, flowing through the surrounding bedrock and soils that contributes to their water inputs (Rains

et al.

2005).

Vernal pools can be a variety of shapes and sizes, from less than a square yard (0.8 square meters (m

2

), to 2.5 ac (1 ha) or more. They occur on gently sloping mesas above the primary drainages, or in valleys at the low end of a watershed (Bauder and McMillan 1998). Vernal pools may be fed or connected by low drainage pathways, or swales. The micro-relief of a vernal pool may be complex, and some are dotted with numerous rounded soil mounds (mima) (Scheffer 1947). Their typical patterning, visible from the air, has allowed a number of vernal pools to be mapped throughout California's Central Valley, on a 10-40 ac unit scale (Holland 1998; 2003, Service 2003). The landscape in which they occur is typically grassland, but vernal pools also occur in a variety of other habitat types (Service 2003).

A critical factor in the development of a vernal pool is the soil conditions of the landscape (an impermeable surface or subsurface layer) and a gently sloping topography (slope of 10 percent or less). Vernal pools form because the soil or sediment layer at or below the surface is nearly or completely impermeable to downward water seepage (Smith and Verrill 1998), and thus rainfall and water from the surrounding watershed becomes trapped above this layer. Soil types of the California vernal pools are volcanic flows, and hardpans and claypans, the latter of which have developed gradually over thousands of years, and can be a yard (1 m) or more thick. The unique assemblage of soils plays a critical role in nutrient cycling in vernal pool ecosystems. The soil types which underlie and surround the vernal pool therefore greatly influence the species composition of both plant and animals, as well as the hydrological functioning of the vernal pool (Hanes and Stromberg 1998; Hobson and Dahlgren 1998; Smith and Verrill 1998). Because water and precipitation flow through the soil to the pool, the chemistry of the soils underlying a vernal pool, and in the surrounding upslope areas, is directly linked to the chemistry of the vernal pool's water,

i.e.

, on its alkalinity, pH, oxidation and reduction processes, dissolved salts and gasses, ion concentrations, mineral richness, and organic material. Thus, soil chemistry likely has a tremendous impact on aquatic invertebrate endemism (cf. Hobson and Dahlgren 1998). The distinct seasonality of vernal pools results in alternating conditions of reduction and oxidation within the soil profile, creating edaphic (soil-influenced) controls that may provide a refuge for competition-sensitive plant and animal species (Hobson and Dahlgren 1998). The length of ponding may also be affected by variables like

consistency of soil, depth of soil to impervious layer (

e.g.

, duripan, claypan), type and thickness of the impervious layer, and local climatic factors (

e.g.

, rainfall abundance and regularity, evaporation rates; Helm 1998).

Because of the transportation of water, soil, minerals and nutrients over the landscape into vernal pools, the upland, or upslope areas associated with vernal pools are an important source of these for vernal pool organisms (Wetzel 1975). Since vernal pools are mostly rain-fed, they tend to have low nutrient levels (Keeley and Zedler 1998). In fact, most of the nutrients that vernal pool crustaceans derive from their vernal pool habitat come from the detritus (decaying organic matter) that washes into pools from the adjacent upslope areas; these nutrients provide the foundation for the food chain in the vernal pool aquatic community (Eriksen and Belk 1999), of which the fairy shrimp fauna constitutes an important component.

Typical to vernal pools are their dramatic fluctuations in local environmental conditions. The water, generally unbuffered, fluctuates greatly on a daily basis in pH, and concentrations of ions and dissolved gasses (oxygen and carbon dioxide), due to varying daily evaporation (Keeley and Zedler 1998). On a larger time-scale, there is extensive monthly and annual variation in the duration and extent of ponding of vernal pools, some pools not filling at all in some years, as the timing and amount of annual rainfall in California varies widely. Because of the unique and ephemeral nature of vernal pool habitat, and the adaptations of its plant and animal species, vernal pools are rich in species composition and contain a large number of highly specialized, native species that are found nowhere else in the region (endemic) (Holland and Jain 1978; Simovich 1998). Vernal pool habitats yield the highest number and species richness of endemics (native species) in comparison to other wetland types (Helm 1998).

Riverside Fairy Shrimp (Streptocephalus woottoni)

The Riverside fairy shrimp is a small (0.56-0.92 inches (in) (14-23 millimeters (mm))), slender Anostracan that has large stalked compound eyes and a delicate, elongate body with 11 pairs of phyllopods, or swimming appendages, which also function as gills (Eng

et al.

1990; Eriksen and Belk 1999). Using their phyllopods in a complex, wavelike motion from front to back, they swim gracefully upside-down. As they swim about, fairy shrimp use these same appendages to filter-feed from the water column, allowing them to non-selectively consume algae, bacteria, protozoa, rotifers and bits of detritus (Eng

et al.

1990; Eriksen and Belk 1999). Note that nothing is known specifically about the Riverside fairy shrimp's food resource requirements (Simovich and Ripley, pers. comm., May 25, 2004).

Riverside fairy shrimp are distinguished from other fairy shrimp species primarily by the second pair of antennae on the adult male, which are enlarged for grasping the female during copulation (Pennak 1989; Eriksen and Belk 1999; Service 2003). Both males and females are generally off-white in color, with orange pigment in their tail appendages (cercopods) and sometimes along the edges of the phyllopods (although some females have been observed to be entirely bright red-orange) (Eriksen and Belk 1999). The females, when mature, can be identified by their brood pouch, the elongate, ventral protruding egg sac immediately behind the phyllopods (Eriksen and Belk 1999).

Relative to most other fairy shrimp species, the Riverside fairy shrimp is a rare species with a highly restricted distribution (Hathaway and Simovich 1996). They are found only in a few pools at lower elevations in the Southern California coastal range that are inundated for a longer duration and generally deeper (greater than 12 in or 30 centimeters (cm)) than pools that support San Diego fairy shrimp (

Branchinecta sandiegonensis

) (Hathaway and Simovich 1996). Some of these pools may have been artificially deepened with berms (

i.e.

, cattle tanks and road embankments) (Hathaway and Simovich 1996). The two species are known to co-occur in a few deep pools; however they generally do not co-exist, as adults of the Riverside fairy shrimp emerge later in the season than San Diego fairy shrimp (Simovich and Fugate 1992; Hathaway and Simovich 1996).

After copulation, the males of some fairy shrimp species die within a few hours (Pennak 1989). When the eggs are fertilized in the female's pouch, they become coated (encysted) with a protein layer that develops into a thick, usually multilayered shell (Eriksen and Belk 1999). When the egg enters the late stage of embryonic development, all growth then ceases, and the egg enters into a dormant stage, or diapause (Drinkwater and Clegg 1991; Eriksen and Belk 1999). The female then either ejects the cysts to fall to the pool bottom, or, if she survives for an extended period, continues to move successive clutches of eggs into her brood pouch. If the vernal pool persists for several weeks to a few months, fairy shrimp may have multiple hatches in a single season (Eriksen and Belk 1999). Cysts can also remain in the brood pouch until the female dies and sinks to the pool bottom (Eriksen and Belk 1999). However, females of some fairy shrimp species can, in the presence of male adults during the wet period, eject thin-shelled cysts that hatch immediately without becoming dormant (“summer eggs”), thus allowing for multiple generations during a single wet season, while the thick-shelled, dormant (“winter”) eggs are deposited in the absence of males in the population (Pennak 1989). By the time the pool dries out, the numbers of dormant cysts within each pool basin can reach tens of thousands to millions, depending on pool size, volume, and depth (Belk 1998).

Mature cysts become fully desiccated (dried) after their pool has evaporated, and due to their protective coating, they can withstand extreme environmental conditions (Pennak 1989; Eriksen and Belk 1999). For example, they can survive subjection to physical extremes, such as near-boiling temperatures, months of freezing (Carlisle 1968), fire (Wells

et al.

1997), or near-vacuum conditions for 10 years without damage to the embryo (Clegg 1967). These adaptations allow fairy shrimp cysts to survive extreme environmental fluctuations, and hatch only when conditions are favorable, after remaining dormant for as much as decades, possibly centuries (Belk 1998). In one closely related fairy shrimp,

Streptocephalus sealii,

cysts were brought to hatch after 25 years of storage in the lab (Belk 1998). Further, because the wall of the cyst can even resist damage by stomach enzymes (Horne 1966), the cyst can pass through the digestive tract of animals without harm, thus allowing for one possible mechanism of cyst dispersal. There are several mechanisms for cyst dispersal, and thus fairy shrimp dispersal, to other habitats. Historically, large-scale flooding from heavy winter and spring rains has been a primary dispersal mechanism, but other major mechanisms include dispersal by migratory birds (

i.e.

, wading birds, shorebirds, waterfowl), ungulates (

i.e.

, cattle, buffalo, deer), and possibly amphibians (

i.e.

, salamanders, frogs) and humans (Eriksen and Belk 1999). These animals either carry cyst-containing mud on their bodies incidentally from pool to pool, or the cysts are ingested and are passed through the gut at another location.

Wind, although less probable, may also be a dispersal agent (Eriksen and Belk 1999).

Although cysts can remain dormant within the pool for decades, they can also hatch about a week after a rain-fill, due to their advanced stage of embryonic development (Pennak 1989; Hathaway and Simovich 1996). However, when a dry vernal pool is once again inundated with water, only a fraction of the dormant cysts in the pool will hatch. Simovich and Hathaway (1997) found that when Riverside fairy shrimp cysts were hydrated once, only 0.18 percent hatched, and after three successive hydration periods, the cumulative total increased to only 2.8 percent. This is among the lowest hatching rates, or prolonged diapause, yet recorded among fairy shrimp species (Simovich and Hathaway 1997). They suggested that the prolonged diapause of so many cysts was an adaptation to the variable nature of local rainfall patterns, as pools at times fill only partially and dry quickly—before the fairy shrimp are able to reach maturity and reproduce. Thus, in such an environment with unpredictable filling events, it benefits the individual to have offspring in prolonged diapause, such that not all hatch after just one hydration (Simovich and Hathaway 1997). In San Diego County, only approximately 28 percent of all filling events recorded over 13 years lasted at least a 17-day period, the minimum length of time needed by the San Diego fairy shrimp to develop to first reproduction (and insufficient time for the Riverside fairy shrimp); this period corresponded to the 28-percent hatching rate for their cysts found in the lab (Philippi 2001). This strategy of prolonged diapause is possibly a risk-spreading (“bet-hedging”) adaptation to the unpredictability of their environment (Simovich and Hathaway 1997; Philippi 2001).

In addition to their low hatching percentage, the cysts of the Riverside fairy shrimp also take longer to hatch after inundation, relative to other species (Hathaway and Simovich 1996). The time from hydration to the hatching of Riverside fairy shrimp cysts took between 12 to 25 days in the lab at varying temperatures, with the most rapid hatching occurring when temperatures were fluctuating at 41-59 degrees Fahrenheit ((F) 5-15 degrees Celsius (C)). San Diego fairy shrimp, in comparison, can hatch after only 3 days (Hathaway and Simovich 1996). The greatest number of Riverside fairy shrimp cysts hatching in the lab, however, was achieved at 50 degrees F (10 degrees C) (Hathaway and Simovich 1996). Their development or maturation rate is also slow, and individuals are relatively long-lived (Hathaway and Simovich 1996), as is typical of obligate deep pool species. The developmental time to maturity for the Riverside fairy shrimp was found to be 7-8 weeks, far longer than to the 7-10 day period of the San Diego fairy shrimp.

It is not surprising, therefore, that the Riverside fairy shrimp also lives much longer (2.5 to over 4 months) than the San Diego fairy shrimp (4-6 weeks) (Hathaway and Simovich 1996). Thus, the minimum period of inundation, or pool duration, that the Riverside fairy shrimp need in order to hatch and reach maturity is 9 to 10 weeks (Gonzalez

et al.

1996; Hathaway and Simovich 1996). Thus, the association of the Riverside fairy shrimp with large, deep vernal pools that pond continuously for many months may perhaps be explained by its long period of maturity and longevity (cf. Helm 1998). Because of their slow hatch and growth, the Riverside fairy shrimp occur therefore much later in the season than other fairy shrimp species (cf. Hathaway and Simovich 1996).

The vernal pools that Riverside fairy shrimp are found in typically have water with a relatively neutral pH (approximately 7), low to moderate salinity, and low to moderate levels of total dissolved solids (Gonzalez

et al.

1996; Eriksen and Belk 1999). One laboratory study conducted on the tolerance of Riverside fairy shrimp to variations in water chemistry found that they tolerate an 8-hour exposure to pH levels ranging from 8 to 10.5, with little effect (Gonzalez

et al.

1996). Generally, in vernal pools where Riverside fairy shrimp occur, the external ion concentrations (Na+) averaged 0.73 mmol/l

3

(Gonzalez

et al.

1996). Although the species was also able to maintain its internal levels of salt concentration fairly constantly over a wide range of external concentrations (0.5-60 mmol/l

3

), it was sensitive to the extremes, with 100-percent mortality occurring at 100 mmol/l

3

(Gonzalez

et al.

1996). Levels of alkalinity in the vernal pool are affected by the surrounding soil type and hydrological regime of the immediate adjacent upland watershed; in four vernal pools, alkalinity averaged 41 mg/l

3

(Gonzalez

et al.

1996). In the laboratory, Riverside fairy shrimp were found to tolerate a wide range of alkalinities (0-600 mg/l

3

), but none could survive levels above 800 mg/l

3

(Gonzalez

et al.

1996). Importantly, studies show that the Riverside fairy shrimp is sensitive to water temperature; with their hatching occurring a longer time after inundation (25 days) and fewer hatching (1-3 percent) at steady higher temperature of 77 degrees F (25 degrees C), than at cooler temperatures (

i.e.

, 7 days hatching time at 59-77 degrees F (15-25 degrees C); over 10 percent hatching at 50 degrees F (10 degrees C) (Gonzalez

et al.

1996).

The upslope areas surrounding vernal pools are critical to the functioning of the vernal pool and thus to the survival of the Riverside fairy shrimp. The surrounding upslope areas provide the vernal pool with the appropriate annual and season temporality and volume of hydrological flow. With that flow follows the necessary nutrients, salts and minerals from the soil and bedrock that all influence the pool's water volume, the duration of ponding, and the complete chemistry, mineral and nutrient contents of the water itself. Therefore, Riverside fairy shrimp, together with its cohabitating vernal pool flora and fauna, is as dependent upon the upland areas for survival and reproduction as it is upon the pool it occupies.

Urban and water development, flood control, and highway and utility projects, as well as conversion of wild lands to agricultural use, have eliminated or degraded vernal pools and/or their watersheds in southern California (Jones and Stokes Associates 1987). Changes in hydrologic patterns, certain military activities, unauthorized fills, overgrazing, and off-road vehicle use also may imperil this aquatic habitat and the Riverside fairy shrimp. The flora and fauna in vernal pools or swales can change if the hydrologic regime is altered (Bauder 1986). Anthropogenic (human-origin) activities that reduce the extent of the watershed or that alter runoff patterns (

i.e.

, amounts and seasonal distribution of water) may eliminate the Riverside fairy shrimp, reduce population sizes or reproductive success, or shift the location of sites inhabited by this species. The introduction of non-native plant species, competition with invading species, trash dumping, fire, and fire suppression activities were some of the reasons for listing the Riverside fairy shrimp as endangered on August 3, 1993 (58 FR 41384). Because of these threats, we anticipate that intensive long-term monitoring and management will be needed to conserve this species. Historically, vernal pool soils covered approximately 500 km

2

(200 mi

2

of San Diego County (Bauder and McMillan 1998). The greatest recent losses of vernal pool habitat in San Diego County have occurred in Mira Mesa, Rancho Peñasquitos, and Kearny Mesa, which together account for 73 percent of all the pools destroyed in the region during the

7-year period between 1979 and 1986 (Keeler-Wolf

et al.

1995). Other substantial losses have occurred in the Otay Mesa area, where over 40 percent of the vernal pools were destroyed between 1979 and 1990. Similar to San Diego County, vernal pool habitat was once extensive on the coastal plain of Los Angeles and Orange counties. Unfortunately, there has been a near-total loss of vernal pool habitat in these areas (Ferren and Pritchett 1988; Keeler-Wolf

et al.

1995; Mattoni and Longcore 1997; Service 1998). Significant losses of vernal pools supporting this species have also occurred in Riverside County.

Adequately quantifying occurrence and distribution of the Riverside fairy shrimp can be difficult due to a number of factors. Firstly, Riverside fairy shrimp are restricted to a narrow geographic region, to certain pool types, and also temporally, as they emerge later in the season than other fairy shrimp species (Hathaway and Simovich 1996). Thus, surveys conducted to also encounter earlier-occurring species may actually miss the Riverside fairy shrimp as they may still be so small (in the juvenile stage) that they pass through the mesh of the collecting nets (Eriksen and Belk 1999). Secondly, surveys may also miss collecting adults simply due to their low hatching percent (as few as 0.18 percent; Simovich and Hathaway 1997), which may result in either a very low population level, or to none being detected in a particular year, when viable cysts are actually present. Further, only males can be identified to the species level with certainty (Eriksen and Belk 1999), and cysts can only be identified to the genus level. To add to the difficulty, vernal pools are generally too small to appear on topographic maps (Holland 1976), not all vernal pools fill each year, or fill long enough for hatching (

i.e.

, discovery) of the Riverside fairy shrimp. Some estimates for San Diego County show that over a period of 13 years, only about 28 percent of the pool-filling events lasted 17 days or longer (Philippi 2001).

For a more detailed discussion about the Riverside fairy shrimp's physical description, ecology, range, status and distribution, and a discussion of factors affecting this species, please refer to the following documents from the

Federal Register:

The final rule listing the species as threatened (58 FR 41384), published on August 3, 1993, the previous final rule to designate critical habitat (66 FR 29384), published on May 30, 2001, and our latest proposed rule to designate critical habitat (69 FR 23024), published on April 27, 2004.

Previous Federal Actions

For more information on previous Federal actions concerning the Riverside fairy shrimp, please refer to the proposed rule to designate critical habitat for the Riverside fairy shrimp (69 FR 23024) and the notice of availability for the draft economic analysis (DEA) and reopening of the public comment period for the proposed designation of critical habitat for the Riverside fairy shrimp published in the

Federal Register

(October 19, 2004, 69 FR 61461).

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the Riverside fairy shrimp in the proposed rule (69 FR 23024). We also contacted and invited the appropriate Federal, State, and local agencies, as well as scientific organizations and other interested parties to comment on the proposed rule. In the notice of availability of the draft economic analysis for the proposed designation of critical habitat (69 FR 61461), we again solicited comments from the public on both the draft economic analysis and the proposed rule. All comments and new information received during the two comment periods were incorporated into the final rule as appropriate.

During the first comment period, open from April 27, 2004, to May 27, 2004, we received 21 letters containing 143 comments directly addressing the proposed critical habitat designation from 6 peer reviewers, 5 Federal agencies, 2 county and local agencies, 1 group, 4 businesses, 1 city, 1 water district, 1 individual, and 1 law firm writing on behalf of 2 groups and 2 transportation agencies.

During the second comment period, open from October 19, 2004, to November 18, 2004, we received 11 letters containing 148 comments directly addressing the proposed critical habitat designation and the draft economic analysis. The letters came from 4 Federal agencies, 3 groups, 2 businesses, 1 law firm on behalf of 2 businesses, and 1 law firm on behalf of 2 groups and 2 transportation agencies.

Of a total 32 letters received, 4 supported the designation of critical habitat for the Riverside fairy shrimp, 2 opposed the designation, 18 letters suggested reducing the area of designation, and 4 letters suggested expanding the area. Two letters were requests for an extension of the comment submission period, but did not express support or opposition to the proposed critical habitat designation. Comments received were grouped into six general issues specifically relating to the proposed critical habitat designation for the Riverside fairy shrimp, and are addressed in the following summary and incorporated into the final rule as appropriate. We did not receive any requests for a public hearing. We have reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for the Riverside fairy shrimp, and have incorporated them into the final rule as appropriate. These are addressed below in the following summary.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR 34270), to solicit opinions from at least three experts, we solicited the expert opinions of 7 knowledgeable individuals with significant scientific expertise that included familiarity with the Riverside fairy shrimp, the geographic region in which the species occurs, and conservation biology principles. We received responses from six of the peer reviewers. The peer reviewers were generally supportive of the designation of critical habitat, but strongly endorsed the approach that the appropriate management unit was the vernal pool complex (not single pools) together with their immediately surrounding upland watershed. They emphasized the importance of providing conservation protection of pool complexes to ensure the survival of the Riverside fairy shrimp in perpetuity, and of identifying and preserving all remaining populations of Riverside fairy shrimp, including those within conservation-managed areas. Three peer reviewers also gave specific comments on our decision to exclude certain lands from critical habitat based on Habitat Conservation Plans (HCPs) and Integrated Natural Resources Management Plans (INRMPs).

Comments From Peer Reviewers

1.

Peer Reviewer Comment:

Most of the reviewers stressed the importance of providing or increasing Federal protection to the Riverside fairy shrimp and their vernal pool habitat, since conservation measures are needed to protect them. Over 95 percent of vernal pools in Southern California have been extirpated (destroyed), and the remaining vernal pools and the species that inhabit them are currently under threat of elimination from both private and public organizations. Additionally, vernal pools are valuable in that they are ecologically unique, while also

providing valuable ecosystem functions. Vernal pool complexes act as hydrologic “sponges,” buffering against drought and flooding. Large-scale alterations or developments within the local watershed of vernal pool complexes would affect the local hydrology dramatically and, from an engineering and public works perspective, can lead to increases in the need for management of unnaturally large amounts of runoff following a rainstorm. Thus, vernal pools have not received adequate recognition in the rule for the benefits (ecological services) they provide. For their long-term survival, vernal pools must be adequately protected; the designation of critical habitat does not seem to provide adequate conservation measures to serve this purpose.

Our Response:

Section 4 of the Act requires us to designate critical habitat to the maximum extent prudent and determinable, which we have done, based upon the best data available to us at this time. We concur that additional, long-term conservation measures are needed to protect the Riverside fairy shrimp and its habitat, and additional data is needed on locations of their occurrence.

In developing our final designation of critical habitat for the Riverside fairy shrimp, we used the best scientific and commercial data available to identify those areas that contain essential occurrences of Riverside fairy shrimp and/or are defined by the physical and biological features essential to their conservation. We used a number of criteria in defining critical habitat, including but not limited to the known species occurrence (known at the time of listing, as well as discovered subsequently) and distribution data, habitat types, presence of PCE's, degree of habitat fragmentation, soil and landform relationships, connectivity and dispersal factors, and conservation biology principles. We did not include all vernal pool landscapes within the Riverside fairy shrimp's range although surveys in these areas may result in the detection of other occurrences in the future. If significant information becomes available indicating that areas outside of our designation are essential to the conservation of the Riverside fairy shrimp, we can, under the Act, revise critical habitat in the future.

2.

Peer Reviewer Comment:

While the Service's proposed designation of critical habitat for the Riverside fairy shrimp in southern California was supported, reviewers stated it is questionable whether 5,795 acres in the proposed rule is “enough” critical habitat for the conservation of the remaining Riverside fairy shrimp populations. Firstly, reviewers strongly emphasized the importance of considering the vernal pool complex and the surrounding watershed as the management unit for this species. The unique physiochemical requirements of the Riverside fairy shrimp make it particularly vulnerable to changes in hydrology. Further, other vernal pool species have their own unique ecological requirements in terms of soil, hydrology, etc. Protecting and maintaining entire vernal pool complexes and their surrounding watershed as a functioning unit will benefit the Riverside fairy shrimp

and

the other endangered species that live in these habitats. If the landscape at a site is changed sufficiently to alter the hydrology of individual vernal pools, then the species in them will eventually go extinct, regardless of whether the pools are disturbed or not. Secondly, some vernal pools excluded from the designation, but set aside for conservation or mitigation, do not have sufficient protection in the surrounding watershed, and thus become ecologically useless. The exclusion of military lands from the final designation is particularly troubling in this regard, because there are no guarantees that the watershed, let alone pools with Riverside fairy shrimp in them, will be adequately protected.

Our Response:

Firstly, we note the support of our critical habitat designation, and concur with the reviewers on the importance of considering the vernal pool complexes together with their immediately surrounding upslope areas as the management unit (

see Background

and

Primary Constituent Elements

sections below). We have used this approach in our analyses when finalizing our critical habitat designation for the Riverside fairy shrimp, and have, wherever possible, included the upslope areas surrounding the pools. Secondly, for approved, legally operative HCPs that include areas eligible for designation as critical habitat and that specifically address the Riverside fairy shrimp and provide for its long-term conservation, we believe that the benefits of excluding those HCPs will outweigh the benefits of including them. Thirdly, we received requests from three military bases to exclude lands owned or managed by the Department of Defense for military purposes because the designation would increase the costs and regulatory requirements, hamper the military's ability to carry out their national security objectives, or because there is an INRMP in place that provides a benefit to the Riverside fairy shrimp. These installations have either been excluded from final designated critical habitat pursuant to section 4(b)(2) of the Act, or exempted according to section 4(a)(3) of the Act. Please refer to the sections

Relationship of Critical Habitat to Approved Habitat Conservation Plans

and

Relationship of Critical Habitat to Department of Defense Lands

below in this final rule for detailed discussions of our rationale for exclusions and exemptions.

3.

Peer Reviewer Comment:

Any consideration of whether the Riverside fairy shrimp will persist indefinitely (

i.e.

, avoid extinction due to anthropogenic causes) would require a quantification of the Riverside fairy shrimp's (a) dispersal biology, (b) adaptation to local physiochemical conditions, and (c) adaptation to hydrologic uncertainties (via reliance on an egg bank). In terms of the hydrology of the vernal pool habitat, quantifiable data is needed on (d) the historic environmental variation and (e) the predicted future environmental variation. However, only rudimentary data are available on any of these topics, with the possible exception of (d). Therefore, it would be wise to err on the side of caution and offer maximal protection to all remaining populations of this species.

Our Response:

We concur that more detailed studies are needed on most aspects of the Riverside fairy shrimp's biology. In this rule, we address the issue of designating critical habitat areas, areas containing the necessary primary constituent elements (PCEs) that are essential to the conservation of the Riverside fairy shrimp. For this purpose, we used the best scientific and commercial information that were available to us and based our analyses upon areas either containing with existing populations of Riverside fairy shrimp or containing features essential for the conservation of the species using the vernal pool complex together with the immediately surrounding upslope areas as our management unit. To assist us in developing this final rule, we also opened two comment periods to obtain as much additional, currently available information as possible.

4.

Peer Reviewer Comment:

One reviewer suggested that the designation of critical habitat is no longer effective as a means to protect the species and its habitat, as funds that are needed to achieve that goal are spent instead on litigation. Rather, a new method is needed to accomplish this goal, such that the Riverside fairy shrimp and its habitat are actually preserved (rather than designated, then litigated).

Our Response:

We concur that the Service's present system for designating critical habitat has evolved into a process that is often driven by litigation and the courts, and thus consumes enormous agency resources. 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. Pursuant to section 4 of the Act, however, the Secretary shall, to the maximum extent prudent and determinable, designate any habitat which is then considered to be critical habitat for listed endangered or threatened species. Alternative or additional methods for accomplishing more effective conservation of the Riverside fairy shrimp are discussed in the Recovery Plan, Multiple Species Habitat Conservation Plans (MSHCPs), Natural Community Conservation Programs (NCCPs), and other conservation plans. These plans address the survival and recovery of this species, and we expect they will be in a continual process of improvement and increased efficiency with time.

5.

Peer Reviewer Comment:

Several reviewers disagreed with the Service's statement in the rule (

see

SUPPLEMENTARY INFORMATION

above) that designation of critical habitat provides little additional protection to species, and believed this should be amended or omitted from the rule, as it is self-contradictory. Although designating critical habitat does not in itself protect any habitat, the biggest advantage of critical habitat designation is the ability to address the “cumulative effects” of many small impacts to the habitat. Impacts to a single location are not likely to drive the species to extinction, but the effects of impacts at many individual locations may, in total, create a substantial risk for species extinction. Designating critical habitat establishes a core, reducing the potential for individual small impacts to be allowed to drive the species to extinction.

Our Response:

While we concur that critical habitat designation can provide some level of species protection by addressing cumulative effects of numerous impacts to the habitat in certain circumstances, this can only be provided if there is Federal nexus for those agencies planning actions that may impact the designated habitat.

6.

Peer Reviewer Comment:

The Service's statement in the rule, that the exclusion of HCPs offers “unhindered, continued ability to seek new partnerships with future HCP participants” (

see Relationship of Critical Habitat to Approved Habitat Conservation Plans

) should be amended in the rule as it is illogical and self-contradictory. Not designating critical habitat within HCPs in order to allow seeking new partnerships implies that the new partnerships would be compromised if they were actually forced to protect Riverside fairy shrimp habitat, which should be one goal of any “partnership.”

Our Response:

Both HCPs and critical habitat designations are designed to provide conservation measures to protect the Riverside fairy shrimp. The advantage of seeking new conservation partnerships, through HCPs or other means, is that they can offer active management and other conservation measures for the habitat on a full-time and predictable basis, while a critical habitat designation only prevents adverse modification of the habitat where there is a Federal nexus to the modifying activity, a far lesser level of protection. It is our experience that landowners generally react very negatively to having their property designated as critical habitat, and that this is then a strong disincentive for them to cooperate in conservation of the species in question. HCPs offer conservation of covered species whether or not the area is designated as critical habitat (for details see the section

Relationship of Critical Habitat to Approved Habitat Conservation Plans).

7.

Peer Reviewer Comment:

The proposed rule appears to find ways to exclude most of the “potential” critical habitat in Riverside and San Diego counties. Except for areas on March Air Reserve Base, the proposed Map Unit 3 for Riverside County excludes all critical habitat, and specifically that on the Santa Rosa Plateau, based on the speculative assertion that the proposed Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) will adequately protect the Riverside fairy shrimp. What is the benefit of excluding critical habitat for the Riverside fairy shrimp on the Santa Rosa Plateau? Any scientifically defensible HCP must protect nearly all of the Santa Rosa Plateau.

Our Response:

HCPs and their Implementing Agreements include management measures and protections designed to protect, restore, monitor, manage, and enhance the habitat to benefit the conservation of the species covered in the plans. The Western Riverside County MSHCP, which has now been finalized, seeks to accomplish these goals for the Riverside fairy shrimp through the implementation of species-specific conservation objectives.

In our analyses, the benefits of excluding critical habitat areas covered by the Western Riverside County MSHCP outweigh the benefits of inclusion. Of the conservation measures this plan identifies for the Riverside fairy shrimp, the first objective is to include within its Conservation Area at least five Core Areas of vernal pools (or vernal pool complexes) and their watersheds; these areas contain five known key Riverside fairy shrimp populations. Core Areas include the Santa Rosa Plateau Ecological Reserve (17,188 acres), Skunk Hollow (156 acres), Murrieta (1,292 acres) and Lake Elsinore back basin (3,180 acres). Within the key population areas, approximately 5,868 acres (33 percent) of potential vernal pool and playa habitat and suitable soils habitat land coverages would be located outside the MSHCP Conservation Area. Any Riverside fairy shrimp present within this area would be subject to incidental take under the guidelines implemented as part of this Plan. Each Reserve Manager responsible for a Core Area containing soils identified as supporting the Riverside fairy shrimp (

e.g.

, the Santa Rosa Plateau Ecological Reserve) shall evaluate their Core Area for the presence of historic or vestigial vernal pools. A program to enhance these areas will be undertaken. Within the MSHCP Conservation Area, that pond water seasonally will be identified and monitored for the presence of fairy shrimp. Reserve managers will ensure habitat support functions within the MSHCP Conservation Area by maintaining and/or preserving watersheds of conserved known or future vernal pools or depressions. Particular management emphasis will be given to disking, illegal dumping and maintaining hydrology (MSHCP Final Documents, Vol. 1—The Plan, June 17, 2003).

See Western Riverside County Multiple Species Habitat Conservation Plan

in the section

Relationship of Critical Habitat to Approved Habitat Conservation Plans

below for more details.

8.

Peer Reviewer Comment

: The Service's assumption that the existence of an HCP automatically affords protection to the Riverside fairy shrimp within the covered area is questionable. In the development of the San Diego Multiple Species Conservation Plan (MSCP)/HCP, vernal pools were explicitly excluded from its intended coverage, because at the time, those areas covered by the conservation plans were regulated as wetlands by the Environmental Protection Agency. As San Diego County does not have a good record of enduring protection of vernal pools, it is important, from a scientific and land-management perspective, to

have an explicit analysis of what (if any) Riverside fairy shrimp populations and their habitats are actually covered in the designated protected areas of the HCP, before exclusion of any areas are made.

Our Response

: Vernal pool habitats that support the Riverside fairy shrimp that were considered essential but excluded from critical habitat were included on our website for public review and comment. Of the 1,183 ac (479 ha) of mapped vernal pool habitat within the MSCP planning area, over 847 ac (343 ha) occur within the planning area. The Service has completed a Biological Opinion (June 1997) on the San Diego MSCP, and found that the Plan meets the standards set forth in 50 CFR 17.32(b)(2), and has issued an incidental take permit to the City of San Diego for the 85 species covered in the plan, including the Riverside fairy shrimp. The permit action does not, however, authorize impacts to wetlands or wetland communities; the MSCP assumes a policy of “no net loss” of vernal pools. The permit requires that impacts to vernal pools be avoided; unavoidable impacts will be minimized to the maximum extent practicable and mitigated at a 2:1 or 4:1 ratio to prevent any net loss of vernal pool function and value. In addition to conserving existing vernal pool habitat, the Multiple Habitat Planning Area is expected to conserve 7,745 ac (3,134 ha) of undeveloped areas with clay soils and clay hardpan, and implement management and monitoring measures for vernal pools within the area. In the Biological Opinion issues, the Service has specifically addressed the Riverside fairy shrimp, and emphasized the conservation of the hydrological processes needed for vernal pool functioning. Pursuant to section 4(b)(2), we have excluded lands within legally operative HCPs, including the San Diego MSCP, that address the conservation needs of the Riverside fairy shrimp, if the plans provide assurances that the conservation measures outlined will be implemented and effective. Please see

Relationship of Critical Habitat to Approved Habitat Conservation Plans

section of the rule below.

9.

Peer Reviewer Comment

: Several reviewers stated that the proposed critical habitat designation does not go far enough to provide for the protection of the Riverside fairy shrimp, because significant portions of the species' range were excluded from critical habitat protection. These areas include Department of Defense lands and MSCP/HCP lands. The Riverside fairy shrimp populations in these areas, particularly those on Department of Defense land, are not protected and are either being lost at present, or vulnerable to loss due to a number of sources and activities, including military maneuvers, crushing by vehicles and toxic poisoning from vehicles or ordnances. In fact, lands under the jurisdiction of HCPs, MSCPs, and the Department of Defense have continued to lose populations of San Diego fairy shrimp (

e.g.

, Cousin's pool, Marine Corps Air Station Miramar) and restoration/creation efforts have thus far not succeeded, and this will likely happen with the Riverside fairy shrimp unless adequate protection is provided for the existing populations. For example, in San Diego County, 66 of 67 vernal pools occupied by the federally endangered San Diego fairy shrimp (

Branchinecta sandiegonensis

) have been recently lost in Mira Mesa, an area covered by the San Diego County MSCP. Thus, the benefits of exclusion do not outweigh the benefits of inclusion due to the significantly increased threat to the species survival that exclusion of critical habitat poses to the species.

Our Response

: We do not agree with the peer reviewer that excluding critical habitat on lands covered by an HCP or INRMP poses a “significantly increased threat to the species survival.” Please refer to the responses to Peer Reviewer Comments 7 and 8 above, and the sections

Relationship of Critical Habitat to Department of Defense Lands

and

Relationship of Critical Habitat to Approved Habitat Conservation Plans

below.

10.

Peer Reviewer Comment

: The small amounts of habitat designated as critical habitat may be questionable. The strip along the international border in the proposed rule (Map Sub-unit 5B, southwestern Otay Mesa) appears to be mitigation or restoration from the Border Infrastructure System. It is not clear that the current hydroperiods are comparable to the pre-impact hydroperiods. Further, it appears that the Department of Homeland Defense drives vehicles through the pools with impunity, without the need for permitted take from the Service. Habitat of such dubious condition is not a suitable substitute for the excluded (but intact) habitat surrounding the proposed areas on western Otay Mesa (critical habitat Map Sub-units 5A, 5B).

Our Response

: Please refer to the response to Comment 4-1 below.

11.

Peer Reviewer Comment

: Areas of critical habitat that have been excluded in the proposed rule are under a high level of threat, and local populations of Riverside fairy shrimp in those areas thus face considerable risk of being extirpated, as has happened with populations of the San Diego fairy shrimp. Currently, there is not enough scientific information on the population genetic structure or life history of the Riverside fairy shrimp to be able to predict the consequences of population losses. Without such data, it is not possible to identify the areas of highest genetic variability, population sources and sinks, levels of gene flow, gene flow distances, evolutionarily significant units or population viability requirements. Loss of critical populations or connections between populations could increase the probability of extinction and put the species as a whole in jeopardy. Thus, it is important that all populations of the Riverside fairy shrimp be included in the critical habitat designation to provide adequate protection of the species as required by the Act.

Our Response

: We recognize the current threats facing the Riverside fairy shrimp, the need to minimize fragmentation effects, and to provide adequate conservation protection. However, we did not designate critical habitat for all populations of the Riverside fairy shrimp. Some areas in our proposed designation were not designated as critical habitat for the following reasons: (1) The area did not meet the definition of critical habitat under section 3(5)(A) of the Act, (2) the area is now included within legally operative HCPs, (3) the area was necessary for national security measures, or (4) economic impact costs. However, for some areas which were excluded from critical habitat under section 4(b)(2) of the Act, or exempted under section 4(a)(3) of the Act, the Riverside fairy shrimp still receives protection under conservation plans such as HCPs or INRMPs.

12.

Peer Reviewer Comment:

According to the proposed rule, critical habitat is identified for the Riverside fairy shrimp in six separate units, each of which correspond to the larger Management Areas that support Riverside fairy shrimp occurrences as outlined in the Recovery Plan (Service 1998; 2004). However, the management areas specified in the Recovery Plan for Vernal Pools of Southern California are based on simple geographical locations, not the biology of the species considered, and the Recovery Plan does not include a population viability analysis. Genetic information on the San Diego fairy shrimp has shown that these management areas do not coincide with the species' evolutionarily significant units based on the population genetic structure of the species. The identification of populations essential to the species requires genetic analysis and

life history analysis to determine “source/sink” status and to evaluation the viability of the population and probability of persistence. Simple geographic location is not sufficient, especially considering the amount of loss of intervening habitat. The management areas are therefore not relevant to the species' conservation, a fact which likely also applies for the Riverside fairy shrimp (Bohonak

et al.

2003).

Our Response:

We agree that no scientific information is available on the genetic diversity of the Riverside fairy shrimp, as is the case for the San Diego fairy shrimp. Thus, we used geographical descriptions to identify critical habitat units. These geographical descriptions are not meant to suggest any evolutionary divergence or population genetic structure. At the same time, we also based our analyses on what areas constituted critical habitat upon the best available scientific and commercial data available to us at the time, and made available public comment periods to allow for submission of any new information.

13.

Peer Reviewer Comment:

The proposed rule stated that an artificial vernal pool complex had been created to offset the impacts to a population of Riverside fairy shrimp by the Redhawk Development, and that another artificial vernal pool creation was planned in order to offset the taking of Riverside fairy shrimp at the Clayton Ranch Pool. Two reviewers questioned whether these artificial pools have produced viable, reproducing populations with positive rates of increase, rather than simply hatching shrimp from the transplanted cysts. To the reviewers' knowledge, no such successes have been recorded in the primary literature;

i.e.

,

see

Ripley

et al.

(2004). Furthermore, the proposed rule stated that on Otay Mesa in San Diego County, significant work had been done to restore and enhance vernal pools for listed species, including the Riverside fairy shrimp. However, the reviewers noted that due to failure to check the transplanted cysts, the Otay pools have become “infected” with a “weedy” species, the winter fairy shrimp (

Branchinecta lindahli

), which can hybridize with the San Diego fairy shrimp (Fugate 1998); its effect on the Riverside fairy shrimp is yet unknown. Thus, the restoration or creation efforts have not been verified as successful (producing viable populations and a growing cyst bank) for either San Diego fairy shrimp or Riverside fairy shrimp, and have in fact, introduced new potential threats.

Our Response:

We did not designate any artificial vernal pools as critical habitat for the Riverside fairy shrimp.

Public Comments

Issue 1: Policy and Regulations

1-1.

Comment:

It was suggested that all essential Riverside fairy shrimp habitat areas within the boundaries covered by the Western Riverside County Habitat Conservation Plan (HCP), Central/Coastal Orange County Natural Community Conservation Program (NCCP), and San Diego Multiple Species Conservation Plan (MSCP) should be included in the final critical habitat designation because (a) areas within those plans meet the definition of critical habitat; the Service has identified those areas as essential to the conservation of the species, and the plans provide special management for the species, (b) the benefits of inclusion far outweigh the harm wrongly perceived by others, (c) the critical habitat designation provides greater conservation benefits than those contained in the plans, which are inadequate to conserve the Riverside fairy shrimp, (d) because the educational benefits of HCPs are much less than those provided by critical habitat designation, and (e) the critical habitat designation has greater specificity, addressing the needs of specific species, than HCPs. Another commenter suggested that the critical habitat designation should be expanded to include all Riverside fairy shrimp populations, including those in excluded Department of Defense lands or HCP areas. In contrast, one commenter suggested that lands within the Western Riverside County MSHCP do not require additional special management considerations or protection, and thus do not meet definition of “critical habitat.”

Our Response:

Although the habitat within the boundaries of these conservation plans contains one or more of the physical and biological characteristics essential to the conservation of the Riverside fairy shrimp, we have determined that these conservation plans provide special management and/or protection for the Riverside fairy shrimp, and we have concluded that the benefits of excluding the lands covered by these plans from the final critical habitat designation outweigh the benefits of including these areas. Thus, we have excluded these areas from critical habitat designation under 4(b)(2) of the Act.

We recognize that critical habitat is only one of many conservation tools for federally listed species. 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 which address the Riverside fairy shrimp and provide for its long-term conservation. These include the San Diego MSCP in San Diego County, the Western Riverside County MSHCP and the Rancho Bella Vista HCP and Assessment District 161 Sub-regional HCP in Riverside County.

HCPs must meet issuance criteria, according to section 10(a)(1)(B) of the Act, 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. The take minimization and mitigation measures provided under the above-mentioned 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 Riverside fairy shrimp is not appreciably diminished through direct or indirect alterations. 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. We discuss these standards in detail in the

section 7 Consultation

and

Relationship of Critical Habitat to Approved Habitat Conservation Plans

portions of this document below).

1-2.

Comment:

It was suggested that the essential Riverside fairy shrimp habitat areas within the boundaries covered by the Western Riverside County HCP should not be excluded as critical habitat because the plan was only recently approved and the protection benefits the plan provided to the species were thus unproven and speculative. According to the Act, the Service cannot base its decisions to exclude areas from its critical habitat designation on unproven conservation activities.

Our Response:

Under section 4(b)(2), we may exclude any area from critical habitat if we determine that the benefits of such an exclusion outweigh the benefits of including the area in the critical habitat designation, unless, based on the best scientific and commercial data available, we determine that failure to designate the area as critical habitat will result in the extinction of the species. We have excluded the areas within the Western Riverside County MSHCP from the final critical habitat designation under section 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of inclusion. (For a detailed discussion please see the section

Relationship of Critical Habitat to Approved Habitat Conservation Plans

below).

1-3.

Comment:

Several comments were made that the Service inaccurately overstates the benefits of conservation plans while overemphasizing possible harm of critical habitat designation within plans' boundaries, that the Service cannot rest any claim of harm on mere perceptions; possible complaints by plan participants would suggest intention of significantly reduced conservation compared to those in a designated critical habitat. Critical habitat designation of an area after the approval of an HCP there will not serve as disincentive, but actually encourage HCP preparation.

In an opposing view, one commenter supported the exclusion of critical habitat within the Western Riverside County MSHCP, asserting that if it were included, it would undermine cooperative conservation partnerships. Two commenters stated, in general, that all lands covered by an HCP (

e.g.

, NCCPs/ special area management plans) should be automatically excluded from critical habitat designation upon approval of the respective conservation or management plan.

Our Response:

It is our experience that most landowners strongly object to inclusion of their lands within critical habitat; thus while proposing a designation may in some cases provide an incentive to participate in developing an HCP, we have no indication that designating private lands as critical habitat encourages the owners to engage in conservation activities. We do recognize that the designation of critical habitat does not provide the same set of conservation conditions that an HCP does, and an HCP may well provide more benefits to the species than critical habitat designation. We recognize that critical habitat is only one of many conservation tools for federally listed species, but HCPs are one of the most important tools for reconciling land use with the conservation of listed species on non-Federal lands. Furthermore, the benefits of including HCPs or NCCP/HCPs in the critical habitat designation are normally small;

i.e.

, any federally funded or authorized activities in such habitat that may affect critical habitat would require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid adverse modification of critical habitat. Where HCPs are in place, we believe that this benefit is small or non-existent. Although conservation plans are important tools to ensure the species survival and recovery, our actions regarding newly implemented plans are not automatic; it is our policy is to carefully review each plan, and only exclude areas from critical habitat designations consistent with section 4(b)(2) of the Act.

1-4.

Comment:

All essential habitats within the boundaries of the Central/Coastal Orange County NCCP/HCP should be included in the critical habitat designation because the Riverside fairy shrimp in natural vernal pools is not covered by these plans, and therefore cannot benefit from the conservation measures in the plan.

Our Response:

The Riverside fairy shrimp is known to occur in only two areas within the Central-Coastal Orange County NCCP/HCP, which provides for the establishment of approximately 38,738 ac (15,677 ha) of reserve lands for 39 Federal or State listed, unlisted, and sensitive species. Within this NCCP/HCP, we proposed critical habitat at the former Marine Corps Air Station (MCAS) El Toro but we excluded this area pursuant to section 4(b)(2) for economic impacts. We excluded an area within the Edison Viejo Conservation Bank, as their management plan meets our criteria for conservation measure for the species. The Riverside fairy shrimp is also known to occur in the North Ranch Policy Plan area which was originally not included within the Central-Coastal NCCP/HCP. However, in 2002, the Irvine Company, owner of lands within the North Ranch Policy Plan area, granted a conservation easement to The Nature Conservancy over the portion of the land where this vernal pool is located, and provided a $10 million management endowment. The conservation easement and management endowment ensure conservation of the Riverside fairy shrimp at this site. (For details,

see Relationship of Critical Habitat to Approved Habitat Conservation Plans

below).

1-5.

Comment:

The critical habitat designation does not give landowners effective notice as to whether their property contains critical habitat, causing a burden to landowners who must determine which portions of their land contain critical habitat.

Our Response:

We identified, as critical habitat, specific areas in the proposed determination that are referenced by UTM coordinates found on standard topographic maps. Note that areas delineated as critical habitat on the maps do not include developed areas within the boundaries that do not contain more than one of the primary constituent elements for the species. During the public comment periods, we also made available the proposed critical habitat units, superimposed on 7.5 minute topographic maps and spot imagery, for inspection by the public at the Carlsbad Fish and Wildlife Office. Furthermore, we distributed geographic data and maps of the proposed critical habitat to all individuals, organizations, local jurisdictions and State and Federal agencies that requested them. We believe the information made available to the public is sufficiently detailed to allow for determination of critical habitat boundaries. This final rule contains the legal descriptions of areas designated as critical habitat required under 50 CFR 424.12(c). The accompanying maps are for illustration purposes only. If additional clarification is necessary, contact the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, California 92009 (telephone 760/431-9440).

1-6.

Comment:

Essential Riverside fairy shrimp habitat within MCAS Miramar should be included as critical habitat because the habitat under their Integrated Natural Resource Management Plan (INRMP) meets the definition of critical habitat, as the Service has identified those areas as essential to conservation of species and the plan provides special management for the species. Further, the current INRMP (a) does not provide details for any existing or future exotic control project and thus does not provide adequate protection against current threats posed by the spread of exotic plants, (b) contains mainly future plans and few active measures addressing current conservation needs, and little information on when and where the actions will be accomplished, (c) does not include the Navy's past Miramar Vernal Pool Management Plan,

i.e.

, treatment of vernal pools is not mandated, (d) its protection measures are not permanent,

i.e.

, its reference to “political developments” could be seen as future decision to convert base to a

regional airport or other development; (e) identifies the NEPA and the Clean Water Act as primary mechanisms for reconciling land uses with conservation, but these do not provide effective conservation of vernal pools, and (f) the INRMP provides few benefits, as the INRMP and past consultations will not ensure conservation or protection of Riverside fairy shrimp and its essential habitat.

Our Response:

Under section 4(a)(3) of the Act, we must exempt military lands subject to an INRMP from critical habitat if that plan provides a benefit to Riverside fairy shrimp. The lands at MCAS Miramar are covered by an approved INRMP that identifies sensitive natural resources within management areas that have various resource conservation requirements and management concerns. These areas have been assigned five levels of conservation priority corresponding with their sensitivity, with

e.g.

, Level I management areas receiving the highest proactive measures. MCAS Miramar continues to monitor, restore and manage its vernal pool resources, including studies in progress, and has indicated it has no plans for changes in future land use. MCAS Miramar has completed an INRMP which we have reviewed and determined that it provides benefits to the Riverside fairy shrimp. Therefore, lands at MCAS Miramar have not been included in the proposed or final designation in accordance with 4(a)(3) of the Act (for more details, see benefits analysis in proposed rule (69 FR 23024) under

Relation of Critical Habitat to Department of Defense Lands; Marine Corps Air Station Miramar

).

1-7.

Comment:

The Service did not provide for adequate public notice of the proposed rule and sufficient opportunity for public comment. Additionally, requests for extension of the comment period were denied, while previous comments have not been acted upon. The 30-day comment period on the draft economic analysis lacks compliance with the required 60-day comment period per the Service's own regulations, the Act and the Regulatory Flexibility Act; with a shorter comment period.

Our Response:

Pursuant to our implementing regulations at 50 CFR 424.16, we are required to provide for at least 60-days for public comment following the publication of a proposed rule in the

Federal Register

. We published the proposed rule to designate critical habitat for the Riverside fairy shrimp in the

Federal Register

on April 27, 2004 (69 FR 23024), and accepted comments from the public for 30 days, to May 27, 2004. We contacted all appropriate State and Federal agencies, county governments, elected officials, and other interested parties and invited them to comment on the proposed rule. In addition, we published notices in the San Diego Union Tribune, the Orange County Register, and the Los Angeles Times, all on May 6, 2004. We published a second notice in the

Federal Register

on October 19, 2004 (69 FR 61461), announcing the availability of the draft economic analysis and opening a 30-day public comment period until November 18, 2004, to allow for comments on the draft economic analysis and additional comments on the proposed determination. We provided notification of the draft economic analysis through telephone calls, letters, and news releases faxed and/or mailed to relevant elected officials, local jurisdictions, and interest groups. Following its release, we also published the draft economic analysis and associated material on our Web site

(http://carlsbad.fws.gov).

We believe these two public comment periods provided adequate opportunity for public comment and constitute compliance with our implementing regulations at 50 CFR 424.16. Because of the court-ordered time frame, we were not able to extend the second comment period or open an additional public comment period.

1-8.

Comment:

Would the designation of critical habitat for the Riverside fairy shrimp be considered a changed or unforeseen circumstance with respect to the various sub-area HCPs presently approved or pending?

Our Response:

In this rule, no critical habitat was designated within lands covered by any pending or un-approved HCP.

1-9.

Comment:

One commenter stated that the proposal to designate critical habitat violates the Act because of (a) failure to use the best available science to exclude non-essential lands from the critical habitat designation, (b) failure to determine whether any specific areas may require special management considerations or protection, (c) it does not contain an economic impact analysis; Congress intended that the Service consider economic and other impacts of the critical habitat designation concurrently with the formulation of critical habitat proposals, (d) certification pursuant to the Regulatory Flexibility Act impermissibly relies on the as-yet unavailable economic analysis, reducing ability of public to provide meaningful comment, and because (e) the Service has failed to comply with NEPA prior to designating critical habitat.

Our Response:

We are directed by the Act to use the best commercial and scientific information available to us at the time we conduct our analyses. In response to part (a), we relied on the best scientific resources when determining to either designate areas essential to the conservation of the Riverside fairy shrimp and to exclude other areas from our final critical habitat designation. Our final delineation of critical habitat is based on the best available scientific and commercial data regarding the species, including a compilation of data from peer-reviewed published scientific literature, unpublished or non-peer-reviewed survey or research reports, and statements from expert biologists knowledgeable about the Riverside fairy shrimp and its habitat. In addition to the above information available to us, we also requested additional information from the public and from peer reviewers to further assist us in our analyses. All new information that was provided during the public comment periods was considered in this final designation, as appropriate. The areas designated as critical habitat represents our best estimate of what areas are essential and critical for the conservation of the species. In response to part (b), please refer to our section

Relationship of Critical Habitat to Approved Habitat Conservation Plans

for details on our analyses of approved conservation plans. In response to comments (c) and (d), we have provided a draft economic analysis, available for public review during the second comment period, giving individuals opportunity to submit comments on its contents, which we have reviewed and addressed in this rule. In response to comment (e), we are not required to prepare environmental analyses as defined by the NEPA in connection with designating critical habitat under the Endangered Species Act of 1973, as amended. (For more details,

see National Environmental Policy Act (NEPA)

below).

1-10.

Comment:

Would on-going activities (such as routine inspections, road grading, construction, etc.) that occur adjacent to designated critical habitat be considered to appreciably decrease habitat values or quality through indirect effects?

Our Response:

The Federal agency planning to conduct such activities must determine if their proposed action may affect critical habitat designated for the Riverside fairy shrimp. The action agency determines whether their action(s) “may affect” the Riverside fairy shrimp or its primary constituent elements within the adjacent critical habitat based on their analyses. If so, the

action agency would enter into consultation with the Service under section 7.

1-11.

Comment:

Can the Service exclude all areas addressed under existing section 7 permits in a manner similar to the exclusions for areas covered under existing section 10 permits? Specifically, can an existing section 7 permit based on a biological opinion for the California gnatcatcher be amended to cover the Riverside fairy shrimp critical habitat in the Otay Mesa area? Specifically, this would be necessary for ongoing operations and maintenance by the San Diego County Water Authority of the Mexico Emergency Connection Pipeline on the western portion of Otay Mesa (final Map Unit 4).

Our Response:

Consultation under section 7 of the Act does not result in the issuance of a section 7 “permit” per se. Federal actions that we conclude are not likely to jeopardize the continued existence of a listed species are exempted from the prohibition against take of listed animal species under section 9 of the Act so long as the Federal agency and any permittee comply with the terms and conditions of the incidental take statement accompanying the Service's biological opinion. Assuming the Federal agency that was subject to consultation under section 7 of the Act for a listed species still retains discretionary jurisdiction over the action, the Federal agency must re-initiate section 7 consultation if its action “may affect” designated critical habitat for the Riverside fairy shrimp.

See Section 7 Consultation

below.

1-12.

Comment:

One commenter requested that the Major and Minor Amendment areas of the eastern portion of Otay Mesa, southern San Diego region (Map Unit 5C), be excluded from the critical habitat designation because these areas must conform to the MSCP, sub-area plans, and the resource protection ordinance, and a critical habitat designation would result in additional section 7 requirements, economic burdens on HCP participants, discourage HCP development, cause additional regulatory review that could jeopardize ongoing conservation efforts, possibly encourage legal challenges to the HCPs because of the uncertainty of the “adverse modification” threshold, and afford no additional benefit to the species because HCPs provide better long-term conservation measures.

Our Response:

Although the Major/Minor Amendment areas are within the boundaries of the San Diego MSCP, these areas are not covered by completed plans that address the conservation of the Riverside fairy shrimp. While we have excluded lands covered by approved sub-area plans under the MSCP, the plans for the Major/Minor Amendment areas are incomplete and thus do not provide adequate conservation measures addressing the Riverside fairy shrimp. However, we have excluded all of Sub-unit 5C in private ownership within the Otay Mesa Major/Minor Amendment areas, under section 4(b)(2) of the Act, in order to avoid some or all of the additional costs incurred by affected landowners.

1-13.

Comment:

One commenter suggested that the areas proposed as Riverside Fairy Shrimp critical habitat (a) do not need special protection or satisfy the definition of critical habitat because they receive substantial protections under new regulations (

i.e.

, Clean Water Act, Porter-Cologne Water Quality Control Act, California Environmental Quality Act, California Department of Fish and Game permitting codes, State Water Board regulations; and (b) must be re-evaluated to determine whether the habitat requires special protection in light of new regulations governing such areas,

i.e.

, the California Porter-Cologne Water Quality Control Act.

Our Response:

While the statutes listed above may provide some regulatory protection for the Riverside fairy shrimp and its associated essential habitat, they do not provide assured management for the species.

Therefore, exclusion of essential habitat from this designation on the basis of the regulatory protections potentially afforded by these statutes is not warranted.

1-14.

Comment:

One commenter asserted that Service has unlawfully pre-determined that exclusion from the final critical habitat designation of essential Riverside fairy shrimp habitat that lies within other conservation plan areas outweighs any benefits of inclusion because the acknowledged essential habitat was excluded prior to the public's review of the Service's analyses of benefits and harm.

Our Response:

Notice of our intent to exclude lands within approved and/or pending HCPs was provided to the public, and maps showing the lands proposed for exclusion were readily available to the public for inspection during the two public comment periods. We solicited comments from the public for 30 days about the areas which we proposed to include or exclude from the proposed rule to designate critical habitat for the Riverside fairy shrimp on April 27, 2004 (69 FR 23024). In the

Federal Register

notice, we notified the public that we may revise the critical habitat designation if additional information becomes available that changes our assessment of the relative benefits of including or excluding these areas from critical habitat. We also contacted appropriate State and Federal agencies, county governments, elected officials, and other interested parties and invited them to comment on the proposed rule, and published notices in the San Diego Union Tribune, Orange County Register, and Los Angeles Times on May 6, 2004. We published a second notice on October 19, 2004 (69 FR 61461), announcing the availability of the draft economic analysis and opening a 30-day public comment period until November 18, 2004, and also published the draft economic analysis and associated material on our Web site (

http://carlsbad.fws.gov

). In making our final critical habitat determination, we considered every comment submitted.

Issue 2: Adequacy and Extent of Critical Habitat Designation

2-1.

Comment:

One commenter stated that there is no substantiation for an increase in area designated as critical habitat from the previous critical habitat rule issued on May 30, 2001 (66 FR 29384).

Our Response:

In the May 30, 2001, final critical habitat rule for the Riverside fairy shrimp (66 FR 29384), we designated approximately 6,870 ac (2,790 ha) as critical habitat. Since then, additional, new information on vernal pools and the occurrences of the little-studied Riverside fairy shrimp has become available, while on the other hand, numerous of the discovered essential areas have been included in several regional HCPs or INRMPs. Thus, on April 27, 2004, we proposed to designate approximately 5,795 ac (2,345 ha) of vernal pools and their adjacent watersheds essential to the conservation of the species as critical habitat for the Riverside fairy shrimp (69 FR 23024). This final determination designates 306 ac (124 ha) as critical habitat, which represents less than five percent of the area originally designated as critical habitat in the previous rule of 2001.

2-2.

Comment:

One commenter stated that the Service did not use an appropriate mapping scale for this species, and since the species' range is well known in San Diego County, the Service should have been able to delineate critical habitat boundaries with extreme precision. The current 100 m

2

blocks include areas that do not have the PCEs for the Riverside fairy shrimp, and those areas should be excluded. Another commenter asked whether the Service intends to exclude from the designated critical habitat all existing

roads, aqueducts, etc. regardless of the state of these features.

Our Response:

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 m. This mapping scale was based on the availability and accuracy of aerial photography and GIS data layers used to develop the designation. In drawing our critical habitat boundaries for the proposed and final rules, we have attempted to exclude all areas that do not contain essential habitat for the Riverside fairy shrimp as defined by its PCEs. Based on information obtained through public comments and updated imagery and GIS data layers, we have been able to further refine the boundaries of critical habitat during the development of this final rule. Within the limitations of our mapping scale, we have been able to exclude most, but not all areas, that do not contain the PCEs, including some man-made features. Note, however, that we have determined that existing man-made features and structures, such as buildings, roads, railroads, airports, runways, other paved areas, lawns, and other urban landscaped areas are not likely to contain one or more of the PCEs and thus do not constitute critical habitat and the lands on which they are found. Activities in these areas are unlikely to affect PCEs (

i.e.

, essential habitat for the Riverside fairy shrimp), and therefore, consultation under section 7 of the Act would not be required unless such activities would affect the species or adjacent critical habitat. In making the critical habitat designation, we used the best scientific and commercial information available to us, including information obtained during the two public comment periods

2-3.

Comment:

The proposed critical habitat designation violates the Act because of the Service's failure to limit the designation to areas essential to the conservation of the Riverside fairy shrimp.

Our Response:

In proposing critical habitat designation, we used the best scientific and commercial information available to determine those areas essential for the conservation of the Riverside fairy shrimp. We used additional information available to us, including a more detailed aerial imagery, a finer mapping grid (changed from 250 m

2

to 100 m

2

), as well as information provided by commenters to refine our mapping of all essential habitat included in the final designation. Please see the sections

Background, Criteria Used to Identify Critical Habitat,

and

Critical Habitat Designation

of this rule for further discussions on how we determined habitat that is essential to the conservation of the species. The areas designated by this final rule are limited to lands essential for the conservation of the Riverside fairy shrimp.

2-4.

Comment:

Rancho Mission Viejo stated that in the proposed rule: (a) The Service used a “recovery standard” which resulted in an overly broad critical habitat designation, (b) the Service did not provide scientific data to indicate how it determined the extent of watersheds that comprise the extent of critical habitat within Rancho Mission Viejo, and that (c) one vernal pool (within Map Unit 2), included in the proposed designation, no longer exists.

Our Response:

The definition of critical habitat in section 3(5)(A) of the Act includes “(i) specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.” The term “conservation,” as defined in section 3(3) of the Act, means “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary”. In designating critical habitat for the Riverside fairy shrimp, we identified those areas that are essential to the conservation of this species. The areas we designate as critical habitat provide one or more of those habitat components essential for conservation of the Riverside fairy shrimp. In this final rule, we have not included all areas currently occupied by the Riverside fairy shrimp, but instead have designated those areas that are essential for the conservation of the species and that may possess large populations, have unique ecological characteristics, and/or represent the known historic geographic areas where the Riverside fairy shrimp can be re-established. The Recovery Plan (Service 1998) details some measures to meet the recovery needs of the Riverside fairy shrimp, and provides a description of habitat attributes that are essential to conservation of the species. We believe that we used the best scientific and commercial information available in determining those areas essential for the Riverside fairy shrimp that were proposed as critical habitat and subsequently finalized. Please see the sections

Background, Criteria Used to Identify Critical Habitat,

and

Critical Habitat Designation

of this rule for further discussion on how we determined habitat that is essential to the conservation of the Riverside fairy shrimp.

Issue 3: Biological Justification and Methodology

3-1.

Comment:

There is insufficient data to show that the Riverside fairy shrimp is present in the proposed critical habitat areas at March Air Reserve Base (March ARB). Further, the Service did not use best scientific data available in the proposed critical habitat designation, as it did not consider the “

1998 Fairy Shrimp Surveys at March Air Reserve Base, Riverside County, California

” (RECON Number 2965B, September 14, 1998) which concluded that “potential habitats at March Air Reserve Base are of poor quality and do not support the Riverside fairy shrimp.” Because the surveys indicated that the habitat was unoccupied, the pools on March ARB are not essential to the conservation of the species.

Our Response:

The delineation of critical habitat for the Riverside fairy shrimp was based on the best available scientific and commercial data regarding the species. During both public comment periods, all new information provided was considered in this final designation, as appropriate. The areas proposed and designated as critical habitat, as described, represent our best estimate of what areas are essential and critical for the conservation of the species. Critical habitat at March ARB was excluded from critical habitat based on section 4(b)(2) of the Act.

Issue 4: Comments on Individual Map Units—Exclusions

4-1.

Comment:

The U.S. Department of Homeland Security (DHS), U.S. Border Patrol, San Diego Sector, submitted comments (May 27, 2004) raising the following issues: (1) Lands owned by the DHS within Sub-units 5B and 5C have previously been disturbed and developed by the construction of the Border Infrastructure System (BIS), (2) the DHS has conducted two restoration projects to offset losses for fairy shrimp, and 135 ac (55 ha) of DHS-owned lands located north of the BIS have been designated as mitigation for completion of the border system and

should not be designated as critical habitat. DHS has made a commitment to the Service to transfer these lands to a conservation resource agency and/or to protect and conserve the lands in perpetuity, (3) lands within the footprint of the BIS do not or will not contain any of the primary constituent elements for the Riverside fairy shrimp once construction is completed, and (4) the BIS is considered integral to national security.

Our Response:

We have excluded essential habitat within DHS-owned lands along the U.S.-Mexico border (

i.e.

, all of Sub-unit 5B, and portions of Sub-unit 5C) under section 4(b)(2) of the Act and removed non-essential areas. The concerns related to the presence or absence of primary constituent elements within the footprint of the BIS are moot because no lands owned by the DHS have been designated as critical habitat. For a detailed explanation, please see the section

Application of Section 4(b)(2) to Department of Homeland Security (DHS) lands

below.

4-2.

Comment:

March ARB requested that vernal pools located on their lands be excluded from critical habitat under section 4(b)(2) of the Act because designation would adversely impact commercial reuse of former military property currently under development, severely limit civilian aviation at the joint-use March ARB airport, result in aviation delays, jeopardize public safety and impact firefighting mission of California Department of Forestry, increase possible risk of bird-aircraft strikes, and “adversely impact mission execution and military training critical to national security.” One pool is located near the airfield zone where ongoing maintenance is necessary to ensure proper drainage and prevent possible runway damage. Further, they suggested that the vernal pools on March ARB (called Pools 3 and 6 by March ARB) do not meet the definition of “critical habitat,” suitable habitat for the Riverside fairy shrimp is not present or determinable and cannot be maintained on March ARB, and the pools are not essential to the conservation of the species as required by Act. Thus, the benefits of exclusion outweigh benefits of inclusion, will not result in extinction of the Riverside fairy shrimp, and the proposed critical habitat designation is not prudent. The Air Force's Environmental Impact Analysis Process ensures the compliance of March ARB with the NEPA, and also, an INRMP is being revised that will ensure all potential habitat areas on March ARB will be investigated for Riverside fairy shrimp.

Our Response:

We have determined to: (1) Remove Sub-unit 3A from this critical habitat designation as the area has been modified and no longer contains the primary constituent elements for the Riverside fairy shrimp, and (2) exclude Sub-unit 3B from this final critical habitat designation according to section 4(b)(2) of the Act. The main benefit of the latter exclusion is to ensure that mission-critical military flight activities can continue without interruption at March ARB while their INRMP is being completed. Under section 4(b)(2) of the Act, we may exclude lands from critical habitat if the benefits of excluding them, including the benefits to national security, outweigh the benefits of including them in the designation. We have determined that the benefits to national security of excluding lands within Sub-unit 3B from critical habitat outweighs the benefits of including these lands in the critical habitat designation (

see Application of Section 4(b)(2) to March Air Reserve Base

(

March ARB

) for a detailed discussion).

4-3.

Comment:

We received comment letters from the Federal Aviation Administration (FAA) and Los Angeles World Airports (LAWA; Sapphos Environmental 2004) regarding the proposed designation of critical habitat at the Los Angeles International Airport (Sub-units 2A and 2B). FAA and LAWA questioned the appropriateness of the proposed designation of critical habitat because of past decisions by the Service in the Recovery Plan for Vernal Pools in Southern California, previous designation of critical habitat for the Riverside fairy shrimp, the April 2004 biological opinion for the Los Angeles International Airport Master Plan, concern for the potential increased risk to public safety and air navigation, and conflicts with FAA's mission. These agencies also recommended that critical habitat not be designated within the Los Angeles International Airport because of the ongoing section 7 consultations for the Riverside fairy shrimp with FAA and LAWA for their operations and maintenance activities and the absence of the primary constituent elements for the Riverside fairy shrimp within the proposed critical habitat units.

Our Response:

In the proposed rule, we identified vernal pools at the Los Angeles International Airport (LAX) as critical habitat (Sub-units 2A, 2B). As a result of the ongoing operations and maintenance activities at LAX, the requirement of the primary constituent element related to the length of time that ponding seasonally occurs within these ephemeral wetlands is not met. Thus, these ephemeral wetlands do not contain this primary constituent element; the Riverside fairy shrimp is unable to complete its lifecycle at LAX without these pools being inundated for a minimum of two months. Thus, we conclude that the ephemeral pools originally proposed as critical habitat at LAX are not essential for the conservation of the Riverside fairy shrimp and we are not designating them as critical habitat.

4-4.

Comment:

The U.S. Marine Corps has requested the exclusion of lands on Marine Corps Base (MCB) Camp Pendleton from critical habitat designation per the Act, under section 4(a)(3) and section 4(b)(2) They stated that MCB Camp Pendleton has an INRMP that provides significant direct and indirect benefits to the Riverside fairy shrimp, that section 7 provides sufficient protection for the Cocklebur Sensitive Area as described in a previous biological opinion (1-1-82-I-92) and therefore, this area should be excluded from critical habitat. They stated that designation would interfere with the base's critical military training mission and military readiness and concurred with the Service's proposal to exclude mission-critical areas from critical habitat designation.

Our Response:

According to section 4(a)(3) of the Act, we must exempt Department of Defense lands covered by an INRMP from the critical habitat designation if we determine that the INRMP provides a benefit to the Riverside fairy shrimp. We have reviewed Camp Pendleton's INRMP and conclude that their plan provide a benefit to the Riverside fairy shrimp. With the INRMP in place and progress being made towards improving the protection of Riverside fairy shrimp, we have therefore exempted MCB Camp Pendleton under section 4(a)(3) of the Act.

See

the

Exclusion of Critical Habitat Under Sections 4(a)(3), 3(5)(A) and 4(b)(2) of the Act

section below for further discussion of lands excluded from critical habitat.

4-5.

Comment:

We received a request to exclude areas owned by San Diego Gas and Electric (SDG&E) that fall within their sub-regional NCCP/HCP boundaries from the critical habitat designation because these areas do not meet definition of critical habitat (

i.e.

, is covered by an HCP plan) and exclusion will not pose any potential risk to the Riverside fairy shrimp. Designation of critical habitat imposes economic burdens on HCP participants, increases the cost of consultation, increases delay, imposes additional regulatory review, and will reduce incentive to participate in the HCP process. HCPs provide a much greater conservation benefit to

private land areas than other Endangered Species Act programs, while critical habitat designation affords no additional benefits to the species as section 7 is applied on an inconsistent and sporadic basis, and does not provide long-term protection.

Our Response:

Where site-specific documentation was submitted to us providing a rationale as to why an area should not be designated critical habitat, we evaluated that information in accordance with the definition of critical habitat pursuant to section 3 of the Act. We made a determination as to whether modifications to the proposal were appropriate. We reviewed the maps to ensure that only those lands essential for the conservation of the Riverside fairy shrimp were designated as critical habitat. We excluded lands from the final designation that we determined to be non-essential to the species' conservation. We also excluded lands, including lands identified in the Vernal Pool Recovery Plan that were included in an approved HCP which provides for the conservation of Riverside fairy shrimp, and where we determined that the benefits of excluding those areas outweighed the benefits of including them. We included lands in the final designation that are essential to the conservation of the species which may require special management considerations or protection for the Riverside fairy shrimp. Portions of essential habitat areas within the SDG&E Sub-regional Plan which are used for SDG&E operational maintenance activities have been excluded from critical habitat based on section 4(b)(2) of the Act. This sub-regional plan and the clarification document (July 2004) defines avoidance, minimization, and offsetting measures to be implemented by SDG&E for the operations and maintenance activities and future construction of new facilities and roads.

4-6.

Comment:

Skyline Ranch suggested that lands owned by Pardee Homes be removed from critical habitat designation because it does not fit critical habitat designation, and is not within the geographical area occupied by the species. The commenter stated that: (a) The Service has no proof showing Cruzan Mesa pools in Skyline Ranch property are occupied; attached information referred to two surveys conducted in 2002 and 2003 that recorded the vernal pool fairy shrimp (

Branchinecta lynchi

), but did not record Riverside fairy shrimp on Cruzan Mesa; (b) because the Service has not made a finding that the site is essential to the species, and Skyline Ranch does not need special management or protection, the site cannot be designated critical habitat; (c) the area that has been proposed as critical habitat (536 ac) exceeds the area that contains the PCEs. Pardee Homes engaged Sikand Engineering, whose hydrological model determined that the maximum surface area of the two main pools was 12 ac (5 ha) and the tributary area necessary to fill the pool volumes from rainfall run-off constituted 90 ac (36 ha), totaling 102 ac (41 ha), and (d) the benefits of excluding outweigh the benefits of including lands within Skyline Ranch as critical habitat; exclusion would not lead to the extinction of the species. The commenter listed the benefits of exclusion from critical habitat designation as the implementation of Pardee plans to construct approximately 1,344 single family detached homes on the property, creation of new jobs and tax revenues for local jurisdictions, and the removal of burden of substantial impending litigation to Skyline Ranch property by “No Growth” advocates.

Our Response:

Cruzan Mesa (proposed Map Sub-unit 1C), constitutes a portion of a larger area of Pardee-owned property (Skyline Ranch). Cruzan Mesa contains several isolated vernal pool complexes within a unique topography,

i.e.

, a topographically enclosed basin atop a large, elevated mesa (1,230 ft (375 m)) on an eroded foothill. In 2004, the Los Angeles County Department of Regional Planning proposed to designate a 958 ac area Sensitive Ecological Area (SEA), including all of Cruzan Mesa, due to its regional biological values. In evaluating the Cruzan Mesa sub-unit, we relied upon various sources, including information in the Final Recovery Plan for Vernal Pools of Southern California (Service 1998) and the Biological Resources Assessment Report of the Proposed Cruzan Mesa Vernal Pools SEA prepared for the Los Angeles County Department of Regional Planning (PCR Services 2000). This information referenced the occurrence of Riverside fairy shrimp at Cruzan Mesa. Information from the referenced comment letter refers to another survey of some vernal pools on Cruzan Mesa that did not encounter Riverside fairy shrimp. However, we have not designated critical habitat on Cruzan Mesa for the Riverside fairy shrimp because at present, we do not have sufficient documentation supporting the occurrence or non-occurrence of the Riverside fairy shrimp in the Cruzan Mesa vernal pools. Thus, we have concluded that Cruzan Mesa is not essential for the Riverside fairy shrimp.

4-7.

Comment:

San Diego County Water Authority, citing undue increased regulatory burden, costs, and administrative delays that would be caused by a critical habitat designation, requested that their facilities (the Mexico Emergency Connection Pipeline) on Otay Mesa (Sub-unit 5C) be excluded or, alternatively, that provisions be made in the designation to address the existing activities and operations within their right-of-way, through either exclusions or textual exemptions.

Our Response:

Please see the response to comment 1-10 above and discussion in

Section 7 Consultation

, below. Please note that critical habitat within Sub-unit 5C has been excluded based on section 4(b)(2) of the Act.

4-8.

Comment:

One commenter stated that critical habitat designation should exclude Rancho Mission Viejo lands (within Map Sub-units 2F and 2G) “in light of disincentives to continued participation in conservation planning,” because of a pending HCP, and because the benefits of exclusion outweigh benefits of inclusion.

Our Response:

We are continuing to work with Rancho Mission Viejo to complete their HCP (please see

Relationship of Critical Habitat to HCPs in Development

section below). The South Orange County NCCP/HCP covers approximately 128,000 ac (51,799 ha) of land within the plan area and has been in development for a number of years. This NCCP/HCP planning effort includes the participation of Rancho Mission Viejo and the cities of Rancho Santa Margarita, Mission Viejo, San Juan Capistrano and San Clemente, and the County of Orange. However, the Environmental Impact Statement and Environmental Impact Report for the NCCP/HCP proposal have not been released for public review and comment. There are altogether at least four vernal pools that support the Riverside fairy shrimp within the study area of the South Orange County NCCP/HCP (please see

Critical Habitat Designation

below for more information). The features within these pools have been determined to be essential to the conservation of the species and may require special management consideration or protections. Please note that critical habitat within these subunits has been excluded based on section 4(b)(2) of the Act.

4-9.

Comment:

The vernal pool on the former MCAS El Toro does not have the PCEs to support the Riverside fairy shrimp and further, critical habitat designation at El Toro would impede the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) response actions

necessary to remediate both soil and groundwater contamination on the property. Thus, the benefits of excluding the pool at El Toro from the critical habitat designation outweigh the benefits of including it.

Our Response:

We have reviewed the available information and believe that the vernal pool at former MCAS El Toro has the primary constituent elements for the Riverside fairy shrimp. We have excluded all of Unit 2C, consisting of lands within the former MCAS El Toro from critical habitat based on section 4(b)(2) of the Act.

Issue 5: Comments on Individual Map Units—Inclusions

5-1.

Comment:

One group and the City of Moorpark requested the inclusion of areas containing vernal pools within Map Unit 1 in the final critical habitat designation as it will help ensure the protection of the habitat and the species. In addition, clarification was given that (a) the vernal pool located on the former Carlsberg Ranch is on part of a land parcel (650,000 ac) owned and managed by the Santa Monica Nature Conservancy, and (b) Sub-units 1A and 1B include portions of land within the Tierra Rejada Greenbelt, an area of land with formal agreement by the Cities of Moorpark, Thousand Oaks, Simi Valley, and the County of Ventura to be preserved for open space and agricultural uses.

Our Response:

This area is included in our final critical habitat designation, and we have amended our records to include the ownership and land usages information.

5-2.

Comment:

A number of requests were made that additional areas be included in the critical habitat designation because critical habitat provides significant conservation benefits to listed species, is an essential tool for species recovery, it mandates higher habitat conservation standards not otherwise available to the species, provides detailed, practical guidance on locations of areas essential to the species' survival, and also carries a very valuable, practical educational value. It was also requested that the vernal pools identified in Appendices F and G of the Service's Recovery Plan for Vernal Pools of Southern California be included because they are essential to conservation of the species and in need of special management.

Our Response:

The Recovery Plan for the Vernal Pools of Southern California (Service 1998), discusses vernal pool complexes and pools, their distribution, and known occupancy by federally listed species at the time of the plan's publication. Not all vernal pools discussed in the plan are known to be occupied by the Riverside fairy shrimp, or considered to be essential to the conservation of the Riverside fairy shrimp. Only those vernal pool habitats that are essential to the conservation of Riverside fairy shrimp were included in the critical habitat designation for the Riverside fairy shrimp. Where site-specific documentation was submitted to us providing a rationale as to why an area should not be designated critical habitat, we evaluated that information in accordance with the definition of critical habitat pursuant to section 3 of the Act. We made a determination as to whether modifications to the proposal were appropriate. We reviewed the maps to ensure that only those lands essential for the conservation of the Riverside fairy shrimp were designated as critical habitat. We removed lands from the final designation that we determined to be non-essential to the species' conservation. We also excluded lands, including those identified in the Vernal Pool Recovery Plan, that were located within an approved HCP, which provides for the conservation of Riverside fairy shrimp, and where we determined that the benefits of excluding those areas outweighed the benefits of including them, or an INRMP which provided a benefit to the species. We included lands in the final designation that are essential to the conservation of the species which may require special management considerations or protection for the Riverside fairy shrimp.

5-3.

Comment:

All essential Riverside fairy shrimp habitat within MCB Camp Pendleton should be included in the critical habitat designation because (a) Service has failed to state how benefits of exclusion outweigh benefits of designation, especially in light of the Act's exemptions that would allow otherwise incompatible military training activities; (b) inclusion will not limit or additionally impact military training and readiness at the base; existing requirements of uplands consultation at MCB Camp Pendleton will ensure the avoidance of adverse impacts to the Riverside fairy shrimp and involve section 7 consultations; thus little benefit of exclusion, (c) it has the benefit of providing the military with clear, independent scientific regulatory guidance on location of critical habitats for the Riverside fairy shrimp and other endangered species, and (d) the benefits of inclusion outweigh any costs of inclusion.

Our Response:

Please see our responses to

Peer Reviewer Comment 2

and to

Comment 4-4

above, and the section below on

Relationship of Critical Habitat to Department of Defense Lands.

Issue 6—Miscellaneous

6-1.

Comment:

The U.S. Navy at the former MCAS El Toro commented that the proposed inclusion of the El Toro property as critical habitat was based on erroneous property ownership information, as the Department of Defense still owns almost 3,800 ac of former MCAS El Toro Property. Further, Map Sub-unit 2C included 1000 ac of Navy and Federal Aviation Administration owned property, not 1 ac as described in rule.

Our Response:

We have noted these errors and have amended our records and this rule.

6-2.

Comment:

The Service's citation of its website as an example of public education about the Riverside fairy shrimp is inadequate; all the available materials about the Riverside fairy shrimp at the website are related entirely to critical habitat.

Our Response:

We thank the commenter for their observation, and will seek to improve our website with additional educational material on the Riverside fairy shrimp.

Comments Related to the Draft Economic Analysis

1.

Comment:

One comment requests that the DEA update its land use and land ownership information regarding the former MCAS El Toro in Orange County. The comment also suggests that the Riverside fairy shrimp conservation activities will impose higher costs on facility improvements and land transfer projects planned for the former base than estimated by the DEA.

Our Response:

The DEA describes the former MCAS El Toro's likely future land uses based on the best available public information and statements made by knowledgeable individuals in personal interviews. Base Realignment and Closure staff estimated that Riverside fairy shrimp-related conservation costs for El Toro would be $150,000 over the next 20 years based on the assumption that the Service would allow historical uses of the site to continue if El Toro instituted a particulate monitoring program.

The comment suggests that if historical uses for the site continue and planned improvements to the base uses are implemented, then the habitat mitigation costs incurred by MCAS Tustin, a neighboring base that was also recently decommissioned, serve as a better estimate of costs for El Toro. The Final Economic Analysis (FEA) revises the land use and land ownership

context of the El Toro Sub-unit 2C and accepts the revised cost impact of $100 million, noting that El Toro plans to acquire expensive land off-site, restore vernal pools, relocate the species to these pools, initiate biological monitoring, and provide for project management.

2.

Comment:

One commenter stated that the DEA underestimates the impact of Riverside fairy shrimp conservation activities on operations and planned capital improvements to March ARB in Riverside County.

Our Response:

The DEA estimates impacts of Riverside fairy shrimp conservation activities on the former March Air Force Base based on the best available public information and statements made by knowledgeable individuals in personal interviews. For impacts likely to occur in the next 20 years, March Joint Powers Authority staff estimated that $500,000 would be required to implement required Riverside fairy shrimp conservation while increasing the capacity of drainage facilities within which the habitat is located. The drainage facility improvements would support real estate development on more than 3,000 acres of the former base.

The comment suggests that ongoing operations at March ARB will also need costly modifications to comply with Riverside fairy shrimp-related regulations and laws. Based on March ARB's understanding of NEPA, an additional $950,000 of environmental studies (at the Environmental Impact Statement level) will need to be completed to maintain operations of its runway and taxiways. In addition, a California Air National Guard heavy equipment unit will require relocation, costing an additional $31.5 million. Although the comment references additional improvements to the site, including the relocation of California Department of Forestry aircraft to March ARB, construction of a parallel taxiway on the existing airfield, and installation of instrument upgrades as part of the March Inland Port, no information is available about the potential for these projects to impact Riverside fairy shrimp habitat or the magnitude of Riverside fairy shrimp-related project modification, if any.

The FEA accepts revised total cost impacts of $33.0 million resulting from the California Air National Guard unit relocation, the incremental Environmental Impact Statement costs, and March Joint Powers Authority's drainage improvements.

3.

Comment:

A number of commenters stated that the DEA omits consideration of Riverside fairy shrimp-related conservation impacts to major transportation infrastructure projects in Southern California.

Our Response:

The DEA estimated no impacts of Riverside fairy shrimp conservation activities on the proposed extension of the 241 Toll Road based on the best available public GIS information and statements made by knowledgeable individuals in personal interviews. At this time, the project has nine alternatives that range from no action to two alternative road widening projects (I-5 and local arterials, both avoiding construction of the 241 Toll Road itself) to six alignment variations for the toll road. The public review, comment, and approval process for this project has been and is expected to continue be a time-consuming and politically contentious. Given the wide variety of regulatory, institutional, and political factors are play, the ultimate outcome cannot be predicted at this time.

The comment suggests that critical habitat Sub-unit 2H has the potential to add enormous costs to three of the Far East alignments. Additional analysis and interviews with local experts suggest instead that Map Sub-units 2F and 2H lie in the path of the Alignment 7/Avenida La Pata Variation alternative and the A-7 Far East Crossover, Far East (West), and Far East Modified alternatives. While no information is publicly available on the surface area of vernal pools likely to be disturbed by any of these alignments, there is some probability that one of these alignments will be chosen and Riverside fairy shrimp conservation measures may be required prior to project construction.

Given the uncertainty associated with the ultimate outcome, the FEA weights each of the nine project alternatives equally and multiplies the probability of each (

1/9

or 11 percent) by an estimated worst case cost impact for each alternative. The analysis assumes no impact (a $0 economic costs estimate) if the toll road is not built or if the construction footprint is located outside of proposed critical habitat. For alternatives expected to cross Riverside fairy shrimp habitat, the impact is the surface area of all vernal pools in the sub-unit times $500,000 per acre as a generalized mitigation cost for transportation projects. Based on this revised methodology, the FEA estimates the 241 Toll Road may incur an additional $43,000 in project modification costs based on available vernal pool surface area data for all nine alternatives.

The Service recognizes that the Toll Road alignment ultimately constructed, if any, will impact local, and possibly regional, traffic flow. Future differences in traffic flows and volumes can, in turn, have a variety of indirect economic effects, including opportunity costs of labor, efficiency of goods delivery, and growth-inducing effects, among other factors. However, given the high degree of uncertainty associated with the Toll Road project and the variety of factors at play, it is difficult to isolate the unique contribution of the Riverside fairy shrimp conservation activities on the final outcome. Consequently, the FEA does not estimate potential economic impacts associated with potential changes in future transportation patterns attributable to the Riverside fairy shrimp conservation activities.

The comment also suggests that no formal analysis was completed on Caltrans projects underway or just completed in Southern San Diego County. Estimates of project-specific cost impacts based on Caltrans interviews for three projects in the Otay Mesa area of San Diego County can be found in Chapter V of the Economic Analysis.

4.

Comment:

Two comments suggest that real estate assumptions used to calculate impacts to private land development activities in one Southern Orange County sub-unit are inaccurate. The comments also recommend using census tract level data for supply and price effects associated with Riverside fairy shrimp conservation activities.

DEA Methods

Our Response:

The DEA relies on DataQuick's transaction-based 2003 residential market data to characterize real estate prices in all zip codes where critical habitat was proposed. In addition, regional planning agencies such as the Southern California Association of Governments and the San Diego Association of Governments provided the DEA with Global Information System (GIS) layers that describe existing and planned land uses for areas of proposed critical habitat. Biological opinion records from the Service also establish a range for the habitat setaside, given variable project footprint and vernal pool site geometry. The combination of the three datasets produces an estimate of the total value of unimproved land affected by Riverside fairy shrimp-related conservation measures such as on-site habitat setasides.

The DEA considers the potential for habitat set-asides to affect aggregate housing supply and market prices. The San Diego Association of Government's data covering the period of 1990 to 1995 allow for an estimate of gross public

land uses required per 1,000 acres of private development. The Construction Industry Research Board supplies information about building activity since 1993. From this information, a forecast can be made of the Riverside fairy shrimp-related conservation land that is taken from residential development as a share of the market's future demand for land used to build new housing. The result suggests an insignificant or near zero impact on housing market supply and price in all “since listing” time periods and counties and in all but one county during the “2005-2024” time period.

Specific Real Estate Assumptions

Several comments object to the use of a 4.25 percent property appreciation rate in the DEA, believing it to be an understatement of the true appreciation rate given an anticipated shortage of finished lots for new housing in the County. To estimate future appreciation in home values, the DEA relies on long-term historical trends which are appropriate for the 20-year forecast utilized by the DEA.

In particular, the DEA relies on the average of a 10-year and a 20-year trend of repeat sales and refinancing of the same properties in California. The price indexing of the same properties over time controls for potential changes in housing quality, location and size over time. These data were obtained from U.S. Department of Labor, Office of Federal Housing Enterprise Oversight. The Service regards this source as the most reliable indicator of long-term real estate price trends because it is less affected by short-term business cycle fluctuations.

Several comments also state that 2004 housing price data would show a significant increase over 2003 data. Although potentially true at the County level, different zip codes may have highly varied year to year changes in housing prices. Establishing the actual year to year change in housing prices at the zip code level would require a purchase of a new dataset and matching (using GIS-based weighting) of this data to critical habitat land areas. Recalculating the median housing price is not possible given the time constraints for preparation of the FEA.

Finally, the comments posit that returns on real estate investments typically fall below the 10 percent level, in contrast to the assumption in the DEA of a 25 percent pre-tax return. These assumptions are used to determine the value of raw land as a percent of finished home price. The DEA bases its calculation on the understanding that the development of a finished home may require the actions of several major agents who in turn move the land from an agricultural or un-entitled basis to an entitled, paper lot basis through to a finished lot and finished home, at which point the product is sold to the end user. Multiple private entities are likely to have participated in this process, each at different levels of risk.

The comments' preferences for a below-10 percent return on investment apply best to higher volume segments of the homebuilding industry in which a single entity purchases lots, builds homes, and sells them to buyers. The DEA, in contrast, uses a composite risk level that includes the greater returns to speculative land purchase and entitlement obtained for such property, and bases its calculations on a more appropriate composite return of 25 percent.

5.

Comment:

One comment requests that the DEA revise the sub-unit land use and land ownership descriptions for Southern Orange County proposed critical habitat. The comment also states that development of one sub-unit is now foreseeable and will be adversely impacted by Riverside fairy shrimp-related conservation activities.

Our Response:

The DEA estimated the impacts of Riverside fairy shrimp conservation activities for the Radio Tower Road (Sub-unit 2G) and other Foothill sub-units based on the best available public information and statements made by knowledgeable individuals in personal interviews. After the publication of the notice of availability of the DEA, the Orange County Board of Supervisors changed the designation of the property to Suburban Residential from Open Space, and rezoned much of the land for Planned Community instead of Agricultural.

The FEA analyzes impacts from Riverside fairy shrimp-related conservation using the same methods established and applied to land use data in the DEA. Land that is zoned for development is deemed likely to be developed within the next 20 years, given general trends in land use for the areas identified as supportive of the Riverside fairy shrimp. These areas tend to be generally flat and readily built upon, notwithstanding other development considerations such as infrastructure, and land ownership. Given this conservative assumption, all 753 undeveloped acres of the Radio Tower Road are considered impacted by Riverside fairy shrimp-related conservation measures that include on-site habitat setasides worth $8 million to $45 million dollars in potential land value over the next 20 years.

The FEA also uses corrected references of this region's habitat sub-units to the Ranch Plan, a master planned community covering many thousands of acres of the area.

6.

Comment:

One comment requests that the land ownership and planned uses information for Los Angeles International Airport (LAX) from the DEA be revised. The comment also suggests that the impacts to LAX from Riverside fairy shrimp-related conservation activities in the DEA are grossly understated.

Our Response:

DEA Methods.

The DEA estimated the impacts of Riverside fairy shrimp conservation activities on LAX based on the best available public information and statements made by knowledgeable individuals in personal interviews. Several individuals contacted for personal interviews did not return phone calls during the process of preparing the DEA. The agency operating LAX, in recent publications, has characterized the airport's daily operations at and major facility expansion plans as incompatible with maintenance of Riverside fairy shrimp habitat.

Given LAX's objectives of minimizing the risk of aircraft-bird collisions that it believes is higher due to the presence of seasonal vernal pools on the airfield, the DEA assumes that Riverside fairy shrimp-related conservation measures would include eventual off-site mitigation of the entire 1.3 acres of wetted area. Adding monitoring and administrative costs to this sub-total, approximately $950,000 in impacts are estimated for the airport over the next 20 years.

Impacts of Significant Events

The comment requests that a full accounting of the cost impact of two significant events be attributed to the designation of critical habitat on the LAX airfield:

• Property loss and loss of life damages resulting from serious aircraft-bird collisions.

• Loss of regional mobility for goods and people given an inability of the airport to complete its planned improvements.

Publicly available literature was searched for references to impacts related to catastrophic events involving bird strikes. One source estimates that between 1990 and 2004 approximately 732 bird strikes have taken place at LAX, inflicting total damages of $17.5 million. The estimate did not match the damage levels of these incidents to birds

using vernal pool habitat, apart from birds that came into contact with aircraft because of other landscape features, natural or human constructed. It is not possible, therefore, to easily distinguish damage due to Riverside fairy shrimp-related habitat from damage related to birds attracted by other habitat or landscape features.

In addition, these bird strike loss estimates do not include an analysis of hardware or other means that would reduce bird attraction to ephemeral wetlands on airport land without removal of the wetlands as a habitat feature. Current discussions being held between LAX and the Service will explore the installation of equipment that allows for wetlands to be maintained on the airfield while discouraging avian feeding or travel patterns within the habitat.

Regarding airport operation and expansion plans, the DEA assumes that Riverside fairy shrimp conservation activities will have no impact on regional transportation mobility. Based on comments received, additional research was conducted on the potential relationship between LAX's operational capacity and regional economic activity. However, the Service was unable to identify any existing studies providing quantitative analysis of this relationship. A detailed analysis of the impact of LAX on the regional economy and/or the potential for RSF conservation activities to affect airport capacity, would require more time and effort than can be devoted to this FEA.

No information about Riverside fairy shrimp habitat disposition appears in any Environmental Impact Report/Statement alternative besides a loss of a small amount of wetted acreage in Alternative D. A consultation has been completed with the Service regarding Alternative D of the LAX Master Plan, in which construction activities at LAX would require a staging area that will necessitate fill of portions of the vernal pools. A second consultation recently began that will address LAX operations. As a worst case scenario, the FEA calculates the impact of Riverside fairy shrimp conservation as a requirement for LAX to mitigate for the entire loss of vernal pool habitat. At $500,000 per wetted acre in unit mitigation costs, the sub-total of habitat restoration activities for the worst case scenario is estimated at $650,000 for LAX.

The comment also stipulates that the restoration monitoring period will last 15 years instead of 5, and that the administrative cost of the operations consultation will amount to $180,000. The FEA accepts these statements and calculates monitoring impacts at $750,000. Administrative costs are listed in the FEA as $400,000 for historical (since listing) section 7 compliance regarding the Riverside fairy shrimp, and $180,000 for the recently initiated consultation, for a total of $580,000 in administrative spending.

FEA References to Documents and Permitting Processes

The FEA text on LAX's Master Plan and operations has been revised based on new information provided in the comment. EIR/EIS documents released to the public since the appearance of the first drafts of the DEA were reviewed, and the consultation history with the Service was updated.

Land Ownership Information

The DEA cites GIS layers provided by Southern California Association of Governments as the basis of existing land uses for proposed critical habitat on or near LAX. Table 10 in the DEA notes that Southern California Association of Governments data classifies 3 acres of the proposed habitat sub-unit as private developed, 66 acres as public land, and 35 acres as unfeasible to develop due to physical constraints. The comment requests that all sub-unit land be recognized as airport controlled (public) land. The impacts estimated by the FEA would not change based on the different land use classifications assigned to the proposed critical habitat by either the Southern California Association of Governments or the comment. Hence, the Southern California Association of Governments information will remain the primary source of land use data.

Comments From States

Section 4(i) of the Act states “the Secretary shall submit to the State agency a written justification for her failure to adopt regulation consistent with the agency's comments or petition.” Comments received from States regarding the proposal to designate critical habitat for the Riverside fairy shrimp are addressed below.

1.

State Comment:

The California Department of Fish and Game requested that the Service avoid any later revisions to the proposed critical habitat that would include Department-owned lands.

Our Response:

No lands or areas within the jurisdiction of the California Department of Fish and Game were considered within the proposed or final critical habitat designation.

Summary of Changes From Proposed Rule

Based on our review of the public comments received on the proposed designation of critical habitat, the economic analysis for the Riverside fairy shrimp, and available information, we re-evaluated our proposed designation and revised the final critical habitat designation for this species as follows.

Areas Removed From Critical Habitat Designation

We re-evaluated our proposed critical habitat unit boundaries, refined our mapping methodology, and used new information to remove 4,822 ac (1,951 ha) of non-essential habitat within each critical habitat map sub-unit (see

Table 1

and

Methods

section below for more details).

In the proposed rule, we identified critical habitat in Sub-units 1C, 2A, 2B, 3A, and in portions of 5A and 5B. However, we have re-evaluated these sub-units based on updated information, and determined that, due to habitat modifications and ongoing operations and maintenance activities, these areas no longer contain one or more of the necessary PCE's for the Riverside fairy shrimp to successfully complete its life-cycle. We therefore removed the following areas from consideration for the final critical habitat designation:

(1)

Cruzan Mesa (Sub-unit 1C).

This sub-unit consisted of approximately 534 ac (216 ha). We have insufficient documentation regarding the occurrence or non-occurrence of the Riverside fairy shrimp in the Cruzan Mesa vernal pools, it occurs outside the known geographical range of the species, and we were unable to determine whether this area is essential to the conservation of this species. We therefore removed this sub-unit from our analyses of critical habitat.

(2)

Los Angeles International Airport (LAX; Sub-units 2A, 2B).

These sub-units consisted of approximately 103 ac (42 ha) in total. As a result of the ongoing operations and maintenance activities at LAX, these ephemeral wetlands cannot pond long enough for the Riverside fairy shrimp to complete its lifecycle. Thus, we have removed both proposed sub-units at LAX from critical habitat designation as they do not contain this primary constituent elements, and are thus not essential for the conservation of the Riverside fairy shrimp.

(3)

March ARB (Sub-unit 3A).

This sub-unit consisted of approximately 101 ac (41 ha). We have re-evaluated this sub-unit and determined to remove it

from this critical habitat designation as the vernal pool area has been modified and no longer contains the primary constituent elements for the Riverside fairy shrimp.

(4)

Southwestern and Southeastern Otay Mesa (portions of Sub-units 5A, 5B).

These sub-units consisted of approximately 255 ac (104 ha) in total. Portions of these sub-units (totaling 119 ac (48 ha)) lie within the footprint of the BIS, which is completed or under construction by the DHS for use in their border patrol activities. After evaluation of these areas, we determined that the necessary PCE's for the Riverside fairy shrimp are absent; these areas have thus been removed from our critical habitat analyses. See discussion of

Units Excluded Due to National Security Under Section 4(b)(2) of the Act

below.

Units Exempted Due to INRMPs Under Section 4(a)(3) of the Act

(1)

MCB Camp Pendleton (Sub-units 4A, 4B).

The total area of these proposed sub-units was approximately 254 ac (103 ha), and contains approximately 226 ac (91 ha) of essential habitat in the final rule. In the proposed rule, we excluded essential habitat within mission-critical training areas on MCB Camp Pendleton under section 4(

b

)(2) of the Act. In this final rule, we re-evaluated this exclusion and instead have exempted these mission-critical training areas as well as other essential habitat areas on MCB Camp Pendleton from critical habitat under section 4(a)(3) of the Act (see

Application of Section 4(a)(3) to MCB Camp Pendleton

for a detailed discussion). Thus, no lands owned or controlled by MCB Camp Pendleton have been designated as critical habitat in this final rule.

Lands leased to the California Department of Parks and Recreation have been excluded under section 4(b)(2) of the Act (see

Units Excluded Due to National Security Under Section 4(b)(2) of the Act

).

(2) MCAS Miramar. We reaffirm our exemption of MCAS Miramar under section 4(a)(3) of the Act.

Units Excluded Due to National Security Under Section 4(b)(2) of the Act

(2)

March ARB (Sub-unit 3B)

. This sub-unit consisted of approximately 44 ac (18 ha) of essential habitat. See

Application of Section 4(b)(2) National Security to March Air Reserve Base (March ARB)

for a detailed discussion. Thus, no lands owned or controlled by March ARB have been designated as critical habitat in this final rule.

(3)

Department of Homeland Security (DHS; Sub-unit 5B).

We have excluded approximately 147 ac (59 ha) of essential habitat within DHS-owned lands along the U.S—Mexico border (see

Application of Section 4(b)(2) to Department of Homeland Security lands

for a detailed discussion). Thus, no lands owned by the DHS have been designated as critical habitat.

(1)

Lands near Christianitos Creek (Sub-unit 2H).

This sub-unit consisted of approximately 47 (19 ha) of essential habitat on lands MCAS Camp Pendleton leased to the California Department of Parks and Recreation. We have excluded this sub-unit (see

Application of Section 4(b)(2) National Security to MCAS Camp Pendleton

for a detailed discussion.

Exclusions Due to Economic Impacts Under Section 4(b)(2) of the Act

In the proposed rule, we identified vernal pools in 6 sub-units for which we proposed critical habitat. In this final rule, we have conducted benefits analyses and under section 4(b)(2) of the Act and have determined not to designate critical habitat in these sub-units for economic impacts. By excluding these 6 units, some or all of the costs associated with a critical habitat designation in those areas will be avoided. This regards the following sub-units:

(1)

Former MCAS El Toro (Sub-unit 2C).

The proposed area of this sub-unit was approximately 133 ac (54 ha), and contains approximately 14 ac (6 ha) of essential habitat in the final rule. We have excluded all of this sub-unit (see

Application of Section 4(b)(2) Economic Exclusion to lands on Former MCAS El Toro (Sub-unit 2C)

below for a detailed discussion).

(2)

Saddleback Meadows (northern portion of Sub-unit 2D).

In the proposed rule, Sub-unit 2D consisted of approximately 736 ac (298 ha). We have excluded approximately 57 ac (23 ha) of essential habitat in the northern portion of sub-unit 2D that occurs within private lands owned by Saddleback Meadows Residential Development Project and other private landowners. See

Application of Section 4(b)(2) Economic Exclusion to Saddleback Meadows (portion of Sub-unit 2D)

below for a detailed discussion.

(3)

Tijeras Creek (Sub-unit 2E).

The proposed area of this sub-unit was approximately 321 ac (130 ha), and contains approximately 101 ac (41 ha) of essential habitat in the final rule. We have excluded all of this sub-unit (see

Application of Section 4(b)(2) Economic Exclusion to lands near Tijeras Creek (Sub-unit 2E)

below for a detailed discussion).

(4)

Chiquita Ridge (Sub-unit 2F).

The proposed area of this sub-unit was approximately 489 ac (198 ha), and contains approximately 263 ac (106 ha) of essential habitat in the final rule. We have excluded all of this sub-unit (see

Application of Section 4(b)(2) Economic Exclusion to lands on Chiquita Ridge (Sub-unit 2F)

below for a detailed discussion).

(5)

Radio Tower Road (Sub-unit 2G).

The proposed area of this sub-unit was approximately 736 ac (298 ha), and contains approximately 417 ac (169 ha) of essential habitat in the final rule. We have excluded all of this sub-unit (see

Application of Section 4(b)(2) Economic Exclusion to lands near Radio Tower Road (Sub-unit 2G)

below for a detailed discussion).

(6)

Southeastern Otay Mesa (Sub-unit 5C).

The proposed area of this sub-unit was approximately 866 ac (350 ha), and contains approximately 111 ac (45 ha) of essential habitat in the final rule. We have excluded all of this sub-unit (see

Application of Section 4(b)(2) Economic Exclusion to Southeastern Otay Mesa (Sub-unit 5C)

below for a detailed discussion).

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (i) The specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary.

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands.

To be included in a critical habitat designation, the habitat within the area occupied by the species must first have

features that are “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (

i.e.

, areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).

Specific areas within the geographic area occupied by the species may be included in critical habitat only if the essential features thereon may require special management or protection. Thus, we do not include areas where existing management is sufficient to conserve the species. (As discussed below, such areas may also be excluded from critical habitat pursuant to section 4(b)(2).)

Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species” (50 CFR 424.12(e)). Accordingly, when the best available scientific and commercial data do not demonstrate that the conservation needs of the species so require, we will not designate critical habitat in areas outside the geographic area occupied by the species.

The Service's Policy on Information Standards Under the Endangered Species Act, published in the

Federal Register

on July 1, 1994 (59 FR 34271), and section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that decisions made by the Service represent the best scientific and commercial data available. They require Service biologists to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas constitute critical habitat, a primary source of information is generally the listing documents for the species. Additional information sources include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. All information is used in accordance with the provisions of section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub.L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.

Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Methods

As required by section 4(b)(2) of the Act and regulations at 50 CFR 424.12, we are to use the best scientific and commercial data available to determine areas that contain the physical and biological features that are essential to the conservation of the Riverside fairy shrimp. We have reviewed available information that pertains to the habitat requirements of this species. To accomplish this, we utilized data and information contained in, but not limited to, the final rule listing the Riverside fairy shrimp (58 FR 41384, the prior proposed and final rules designating critical habitat for the Riverside fairy shrimp (69 FR 23024, 65 FR 57136, 66 FR 29384), the proposed rule to designate critical habitat for the San Diego fairy shrimp (68 FR 19888), the Vernal Pools of Southern California Final Recovery Plan (Recovery Plan; Service 1998), research and survey observations published in peer-reviewed scientific journals, maps from the regional Geographic Information System (GIS) database with vegetation and species coverages (including vegetation layers for Orange and San Diego counties), the California Natural Diversity Database (CNDDB), the California Vernal Pool Assessment Preliminary Report (Keeler-Wolf

et al.

1998), vernal pool mapping and other data collected for the development of HCPs, reports submitted by biologists holding section 10(a)(1)(A) recovery permits, biological assessments provided to us through section 7 consultations, reports from site investigations on MCB Camp Pendleton and MCAS Miramar, site visit reports by staff biologists, reports and documents on file in the Service's field offices, and communications with experts outside the Service who have extensive knowledge of vernal pool species and habitats. In addition, we used information contained in comments received by May 27, 2004 which were submitted on the proposed critical habitat designation (69 FR 23024) and comments received by November 18, 2004 submitted on the draft economic analysis (69 FR 61461).

Based on a compilation of information listed above on the known occurrences of Riverside fairy shrimp, we created maps indicating the habitat associated with each of the occurrences. The habitat units were delineated using ArcView (Environmental Systems Research Institute, Inc.), a computer GIS program to evaluate GIS data derived from a variety of Federal, State, and local agencies, and from private organizations and individuals. Data layers included current and historic species occurrence locations (CNDDB 2002); we presumed occurrences identified in the database to be extant unless there was affirmative documentation that an occurrence had been extirpated. We also relied on unpublished species occurrence data contained within our files, including section 10(a)(1)(A) reports and biological assessments.

We then evaluated the areas defined by the overlap of the combined coverages (data layers) to initially focus on those areas which provide those physical and biological features essential to the conservation of the Riverside fairy shrimp;

i.e.

, we identified and mapped vernal pool basins and ephemeral wetlands supporting the Riverside fairy shrimp that contained the primary constituent elements for the species. The areas were further refined by using satellite imagery, aerial map coverages,

elevational modeling data, vegetation/land cover data, and agricultural/urban land use data to eliminate areas that contained features such as cultivated agriculture fields, housing developments, and other areas that are unlikely to contribute to the conservation of the Riverside fairy shrimp.

Next, the upslope areas, located immediately surrounding the vernal pool basins and ephemeral wetlands, areas that also contained the primary constituent elements for the Riverside fairy shrimp were mapped based on topographic features such as ridges, mima mounds, and elevational gradients or slopes. The boundaries for these areas were further refined and delineated by mapping those areas that sloped toward the pools, from highest point to highest point in the immediate surrounding upland areas, following the map's topographic elevational gradient around the high points (peaks), to the sides and the lowest part of the basin that encompassed the complex of vernal pools, keeping within the boundaries of the previously proposed critical habitat. Those areas that the topographic maps showed sloped steeply away from the pools, or that were developed or altered, such that necessary PCEs (

i.e.

, water, soil, minerals) could not be transported toward the vernal pools over such areas, were left outside the refined delineation. This method was used for vernal pools in both basin and mesa-type topographic settings.

The combined extent of these mapped areas was defined as the habitat essential to the survival and recovery of the Riverside fairy shrimp. Whenever possible, areas not containing the primary constituent elements, such as developed areas or open water, were not included as essential habitat. To aid us in this elimination, we u

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