Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the San Diego Fairy Shrimp (Branchinecta sandiegonensis)

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AV37

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the San Diego Fairy Shrimp (Branchinecta sandiegonensis)

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are designating revised final critical habitat for the San Diego fairy shrimp

(Branchinecta sandiegonensis)

under the Endangered Species Act of 1973, as amended (Act). Approximately 3,082 acres (ac) (1,248 hectares (ha)) of habitat in Orange and San Diego counties, California, are being designated as critical habitat for the San Diego fairy shrimp. This revised final designation constitutes a reduction of 943 ac (382 ha) from the 2000 designation of critical habitat for the San Diego fairy shrimp.

DATE:

This rule becomes effective on January 11, 2008.

ADDRESSES:

Comments and materials received, as well as supporting documentation used in the preparation of this revised final rule, will be available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011. The revised final rule, economic analysis, and maps are available on the Internet at

http://www.fws.gov/carlsbad/

.

FOR FURTHER INFORMATION CONTACT:

Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see

ADDRESSES

); telephone 760-431-9440; facsimile 760-431-5901. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the San Diego fairy shrimp in this revised final rule. For more information on the taxonomy, biology, and ecology of the San Diego fairy shrimp, please refer to the final listing rule published in the

Federal Register

on February 3, 1997 (62 FR 4925), the original proposed and final critical habitat rules published in the

Federal Register

on March 8, 2000 (65 FR 12181) and October 23, 2000 (65 FR 63438), respectively, and the proposed rule to revise critical habitat published in the

Federal Register

on April 22, 2003 (68 FR 19888).

The San Diego fairy shrimp

(Branchinecta sandiegonensis)

is a small aquatic crustacean in the order Anostraca, generally restricted to vernal pools and other ephemeral (lasting a short time) basins in coastal Orange and San Diego Counties in southern California and in northwestern Baja California, Mexico. Vernal pools in southern California typically contain water in the winter and are dry in the summer. The San Diego fairy shrimp is a habitat specialist found in shallower pools that range in depth from 2 to 12 inches (in) (5 to 30 centimeters (cm)) (Simovich and Fugate 1992, p. 111; Hathaway and Simovich 1996, p. 670). San Diego fairy shrimp feed on algae, diatoms, and particulate organic matter (Parsick 2002, pp. 37-41, 65-70). Male San Diego fairy shrimp are distinguished from males of other species of

Branchinecta

by differences in the distal (located far from the point of attachment) tip of the second antennae. The females carry their eggs or cysts in an oval or elongate ventral brood sac (Eriksen and Belk 1999, pp. 20-24; Fugate 1993, p. 301). Females are distinguishable from females of other species of

Branchinecta

by the shape and length of the brood sac, the length of the ovary, and the presence of paired dorsolateral (located on the sides, toward the back) spines on five of the abdominal segments (Fugate 1993, p. 301).

San Diego fairy shrimp occur in groups of vernal pools referred to as vernal pool complexes (Keeler-Wolf

et al.

1998, p. 9). Vernal pool complexes tend to include between 5 and 50 vernal pools, although some contain as few as two vernal pools and some contain several hundred vernal pools. Vernal pools within a complex are generally hydrologically connected, meaning that water flows over the surface from one vernal pool basin to another and/or water flows and collects below ground such that the soil becomes saturated with water, and the vernal pool basins fill with water (Hanes

et al.

1990, pp. 51-56). For this reason the vernal pool ecosystems, on which the San Diego fairy shrimp depend, are best described from a watershed perspective (Service 1998a, p. 59). The vernal pool watershed includes all areas around a vernal pool complex needed to collect rainfall and adequately fill the vernal pool basins within the vernal pool complex. In rainy years, California's vernal pools begin to fill following the onset of fall and winter rains. Some pools in a complex have substantial watersheds that contribute to filling the vernal pools, while others fill almost entirely from rainfall (Hanes

et al.

1990, pp. 51-54; Hanes and Stromberg 1998, pp. 38, 47-49). Subsurface inflows from surrounding soils may also be an important factor in the filling of some vernal pools (Hanes

et al.

1990, pp. 55-56; Hanes and Stromberg 1998, pp. 41-42).

A recent mitochondrial DNA (genetic sequence) study sampled 223 San Diego fairy shrimp from 24 vernal pool complexes (Bohonak 2004, p. 2). Researchers identified 39 unique alleles; each unique allele was found only at specific vernal pool complexes or within isolated geographic areas (Bohonak 2004, pp. 2-9). This indicates that fairy shrimp within a vernal pool complex or in limited geographic areas are more closely related to each other than to those at more distant locations. This analysis of mitochondrial DNA also indicates that there are two distinct genetic clades (genetic groups within a taxa) among populations of San Diego fairy shrimp, referred to as Group A and Group B (Bohonak 2004, p. 3; Bohonak 2007, p. 1). The difference in the alleles within either of the clades is less that one percent divergence; however, between the two groups there is a 2.5 percent divergence between pairs of alleles. Bohonak states that “this means individuals from Group A and B have been isolated from one another biologically for tens of thousands or perhaps millions of years with little or no dispersal or hybridization (2004, p. 3).” The distribution of the two clades is unusual because with the degree of difference between the two clades one would expect them to be geographically separate; however, the two clades are somewhat intermixed geographically.

The extant range of the San Diego fairy shrimp is restricted to San Diego and Orange Counties in the United States, and in northwestern Baja California in Mexico. San Diego County supports the largest number of remaining vernal pools occupied by the San Diego fairy shrimp. Scientists estimate vernal pool soils historically covered 200 square miles (mi) (518 square kilometers (km)) in San Diego County; habitat losses have been extensive, only remnants of most vernal pool landscapes remain (Bauder and McMillan 1998, p. 66). The majority of vernal pool habitat in coastal Orange County has also been lost; currently there are only five vernal pool complexes in Orange County known to

support the San Diego fairy shrimp (Riefner and Pryor, p. 300; Keeler-Wolf

et al.

1998, p. 63; Mattoni and Longcore 1997, pp. 71, 89; CNDDB 2004, pp. 9, 11, 12, 29-32).

Previous Federal Actions

On October 23, 2000, we published a final rule designating approximately 4,025 ac (1,629 ha) of critical habitat for the San Diego fairy shrimp in Orange and San Diego Counties, California (65 FR 63438). Following publication of the final rule, a lawsuit was filed against the Service challenging the critical habitat designation by multiple parties, including the Building Industry Association of Southern California, the National Association of Home Builders, and the Foothill/Eastern Transportation Corridor Agency (

Building Industry Association of Southern California et al.

v.

Norton

, CV 01-7028 (D.C.C., filed 1/17/01) (venue subsequently transferred to C.D.Cal. and case assigned CV 01-07028). On June 11, 2002, the U.S. District Court for the Central District of California granted our request for a remand of the San Diego fairy shrimp critical habitat designation so that we could reconsider the economic impact of designating any particular area as critical habitat. The Court ordered us to submit a new proposed rule to the

Federal Register

by April 11, 2003.

On April 22, 2003, we published a proposed rule to designate approximately 6,098 ac (2,468 ha) of land within Orange and San Diego counties, California, as critical habitat for the San Diego fairy shrimp in the

Federal Register

, and we accepted public comments on the proposed revision until June 23, 2003 (68 FR 19888). On April 8, 2004 (69 FR 18516), we published a notice in the

Federal Register

announcing: (1) The availability of the draft economic analysis (DEA) of the proposed rule to revise critical habitat for public review; (2) the reopening of the public comment period on the proposed rule; and (3) the scheduling of public hearings on the proposed critical habitat designation and DEA. Public hearings were conducted on April 29, 2004, in Carlsbad, California. The second public comment period closed on May 10, 2004.

The Service initiated work on the revised final critical habitat rule for the San Diego fairy shrimp, but because of other court-ordered priorities we did not complete the rule. On February 8, 2007, a motion was filed by the Plaintiffs requesting the Court to direct us to finalize the revised critical habitat designation for the San Diego fairy shrimp. We reached an agreement with the Plaintiffs whereby a revised final designation would be completed on or before November 1, 2007. On April 3, 2007, we published a notice in the

Federal Register

announcing the reopening of the public comment period for the April 22, 2003, proposed rule to revise critical habitat for the San Diego fairy shrimp, and we accepted comments and information until May 3, 2007 (72 FR 15857). This rule is being finalized in compliance with the court order.

Summary of Comments and Recommendations

As discussed in the Previous Federal Actions section above, we have opened three public comment periods associated with the 2003 proposed rule to revise critical habitat for the San Diego fairy shrimp; the second and third comment periods also sought public comment on the associated DEA. During these comment periods, we requested all interested parties to submit comments or information related to the proposed revision to the critical habitat designation, including, but not limited to, the following: Unit boundaries; species occurrence information and distribution; land use designations that may affect critical habitat; potential economic effects of the proposed designation; benefits associated with critical habitat designation; areas considered but not proposed for designation and the associated rationale for the non-inclusion/exclusion of these areas; and methods used to designate critical habitat.

We informed all appropriate entities of the opening of these comment periods, including State and Federal agencies, County governments, elected officials, and other interested parties through telephone calls, letters, and news releases sent by facsimile, by U.S. mail, and/or by electronic mail. During the April 22 to June 23, 2003, comment period, we also invited public comment through the publication of notices in the following newspapers: Los Angeles Times, Orange County Register, The Press-Enterprise, San Bernardino Sun, and the San Diego Union-Tribune. During the April 8 to May 10, 2004, comment period, we announced the date and times of two public hearings that were held on the 2003 proposed revision to designated critical habitat and DEA. Hearings were held on April 29, 2004, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. in Carlsbad, California. Transcripts of these hearings are available for inspection (see

FOR FURTHER INFORMATION CONTACT

section above).

During the comment period that opened on April 22, 2003, and closed on June 23, 2003, we received 43 comments directly addressing the proposed critical habitat designation: 4 from peer reviewers, 3 from Federal agencies, 3 from local jurisdictions, and 33 from organizations or individuals. During the comment period that opened on April 8, 2004, and closed on May 10, 2004, we received 11 comments directly addressing the proposed critical habitat designation and the DEA. Of these latter comments, one was from a State agency, 5 were from local jurisdictions, and 5 were from organizations or individuals. During the comment period that opened on April 3, 2007, and closed May 3, 2007, we received 12 comments directly addressing the proposed revision to critical habitat and the DEA. Of these comments, 3 were from Federal agencies, 3 were from local jurisdictions, and 6 were from organizations or individuals.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from eight individuals with scientific expertise that included familiarity with the species, the geographic region where the species occurs, and conservation biology principles. We received responses from four of the peer reviewers. The peer reviewers were generally supportive of the designation of critical habitat. However, they stressed the importance of the genetic uniqueness of each population of San Diego fairy shrimp and the need to identify and preserve all remaining populations of the species.

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for the San Diego fairy shrimp. All comments received were grouped into general issue categories relating to the proposed rule to revise critical habitat for San Diego fairy shrimp and are addressed in the following summary and incorporated into this revised final rule as appropriate.

Peer Review Comments

Comment 1:

Three peer reviewers stated we should take the genetic information on the San Diego fairy shrimp into consideration when designating critical habitat. The peer reviewers stated that allozyme (enzyme) studies (citing Davies

et al.

1997) and mitochondrial DNA (genetic sequence) studies (citing Bohonak 2004) indicate that within pool complexes, there is a low degree of genetic variation, but

between vernal pool complexes there is a high degree of genetic variation. The analysis of mitochondrial DNA indicates that there are two distinct genetic clades (genetic groups within a taxa) among populations of San Diego fairy shrimp (Bohonak 2004, p. 3). The peer reviewers indicated that the two distinct genetic clades are important for the conservation of the San Diego fairy shrimp.

Our Response:

We agree with the peer reviewers that the preservation of the genetic diversity of the San Diego fairy shrimp across its range is important to the conservation of this species, and we believe that we have captured the two distinct genetic clades referenced by the peer reviewers and described in the background section of this revised final rule in our designation. The distribution of the two clades is unusual because the two clades are not geographically separate across the extant range of the species. Our final designation captures a range of vernal pool complexes within each identified clade. Vernal pool complexes sampled in Fairview Park (subunit 1B) (Bohonak 2007, p. 1), Del Mar Mesa (subunit 4A/B), Carmel Mountain (subunit 4E and 4F), Lopez Ridge (subunit 4H), Winterwood (subunit 4I), Otay Mesa (subunit 5F), Lower Otay Reservoir (subunit 5H), and Marron Valley (subunit 5I) are in “Group A” (Bohonak 2004, pp. 3-9). These sites represent 10 of 16 sites in “Group A” sampled by researchers (Bohonak 2004, pp. 7-9). Vernal pool complexes sampled at San Onofre State Beach (subunit 2A) (Bohonak 2007, p. 1), Ramona (subunits 3E.1-3E.4), SANDER (subunit 4K), Montgomery Field (subunit 4M), Murphy Canyon (subunit 4C), and Chollas Heights (subunit 4D) are in “Group B” (Bohonak 2004, pp. 3-9). These sites represent 6 of 12 sites in “Group B” sampled by researches (Bohonak 2004, pp. 7-9; Bohonak 2007, p. 1).

Comment 2:

Three peer reviewers expressed concern that Habitat Conservation Plans (HCPs) and Integrated Natural Resource Management Plans (INRMPs) may not provide the same level of protection for the San Diego fairy shrimp as critical habitat, and therefore can not be substituted for the designation of critical habitat.

Our Response:

Where a Federal nexus exists, lands designated as critical habitat are protected from destruction or adverse modification under section 7 of the Act. However, to be successful, the conservation of the San Diego fairy shrimp relies on proactive conservation and management of vernal pool complexes rather than mere avoidance of certain habitat impacts under section 7 of the Act. Habitat conservation plans and INRMPs typically incorporate on-going management and protection for the San Diego fairy shrimp that will benefit, and is critical to, the long-term conservation of the species. This type of long-term management would not necessarily result from a section 7 consultation on an area where critical habitat has been designated. In addition, the protection and management afforded San Diego fairy shrimp habitat under HCPs extend to private lands that may otherwise lack a Federal nexus triggering consultation under section 7 of the Act.

Comment 3:

One peer reviewer stressed the importance of viewing vernal pools as ecosystems with several important components, such as intact upland habitat and functional watersheds that contribute to the health and productivity of the vernal pool ecosystem and to the conservation of the San Diego fairy shrimp.

Our Response:

We have addressed this comment by providing a more detailed description of the primary constituent elements (PCEs) in this revised final rule. The boundaries of each critical habitat subunit generally correspond to the boundaries of functional watersheds surrounding the included vernal pool complexes. We have attempted to incorporate all of the features that the peer reviewer described that we have determined to be essential to the conservation of the San Diego fairy shrimp (see the Primary Constituent Elements section for further discussion of this topic).

Public Comments

INRMPs and Department of Defense Lands

We received several comments related to the exclusion and exemption of Department of Defense (DOD) lands from the revised final critical habitat. We received comments from the U.S. Navy (Navy) regarding the proposed designation of critical habitat on Marine Corps Base Camp Pendleton (MCB Camp Pendleton), and separate comments regarding the proposed designation on Marine Corps Air Station Miramar (MCAS Miramar), Naval Radio Receiving Facility (NRRF), Naval Outlying Landing Field (NOLF), and Navy housing at Chollas Heights and Murphy Canyon under Naval Base Coronado. We also received comments from individuals, some stating that DOD lands should be designated as critical habitat, and others stating that DOD lands should not be encumbered by critical habitat.

Comment 4:

The Navy requested that critical habitat not be designated at MCB Camp Pendleton, MCAS Miramar, NRRF, and NOLF, based on approved INRMPs for these installations and adverse affects to military training and readiness. Another commenter also requested that military lands at MCB Camp Pendleton not be designated as critical habitat.

Our Response:

In the April 22, 2003, proposed rule to revise critical habitat for the San Diego fairy shrimp (68 FR 19888), we considered but did not propose critical habitat on MCAS Miramar, NRRF, and on mission essential training areas at MCB Camp Pendleton under section 4(b)(2) of the Act. The April 22, 2003, rule proposed to designate some non-training areas at MCP Camp Pendleton and at NOLF. In this revised final designation, we have determined that all the INRMPs in place at MCAS Miramar, NRRF, MCB Camp Pendleton, and NOLF provide a benefit to San Diego fairy shrimp, and therefore these lands are exempt from this revised final critical habitat under section 4(a)(3) of the Act (see Exemptions and Exclusions section below for a detailed discussion of these exemptions).

Comment 5:

The Navy requested that critical habitat not be designated at the vernal pool areas at Murphy Canyon Navy Housing and Chollas Heights Navy Housing because they plan to complete an INRMP for these areas. The Navy continued to request that should critical habitat be designated at these areas that the Service commit to revisiting the designation upon the Navy's completion of an INRMP or other management plan for these areas.

Our Response:

The vernal pool complexes at Murphy Canyon Navy Housing and Chollas Heights areas are not covered under an INRMP at this time; therefore they are not appropriate to consider for exemption under section 4(a)(3) of the Act. The vernal pool complexes at Murphy Canyon Navy Housing and Chollas Heights areas have been preserved for the benefit of the San Diego fairy shrimp and other vernal pool species. The vernal pool complexes at these two Housing Areas provide high quality habitat for the San Diego fairy shrimp and are some of the last remaining areas in urban San Diego that support this species. We applaud the past conservation work that the Navy has implemented at these two housing areas, and we look forward to working with the Navy to minimize any financial or regulatory burden associated with this critical habitat designation. It is our understanding that the Navy is working to complete an INRMP that will include these two areas and will secure funding

for the long-term management of these two areas for the benefit of the San Diego fairy shrimp. Features essential to the conservation of the San Diego fairy shrimp in these areas continue to require special management considerations and protections and are therefore included in this revised final designation. At such time as the Navy completes an INRMP for these areas, we can assess any benefits provided to the San Diego fairy shrimp and revise the designation through the rulemaking process consistent with available funding and program priorities.

Comment 6:

Some commenters stated that our exclusion of INRMPs is not legally or scientifically justified because the commenter believes that the INRMPs, specifically those for MCB Camp Pendleton and MCAS Miramar, do not adequately protect vernal pools or San Diego fairy shrimp.

Our Response:

Section 318 of National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended section 4(a)(3) of Act to address the relationship of INRMPs to critical habitat by adding a new section, 4(a)(3)(B). This amendment prohibits us from designating as critical habitat any lands or other geographical areas owned or controlled by DOD, or designated for its use, that are subject to an INRMP prepared under section 101 of the Sikes Act, if the Secretary of the Interior (Secretary) determines, in writing, that such plan provides a benefit to the species for which critical habitat is proposed for designation. Lands at MCB Camp Pendleton, MCAS Miramar, NRRF, and NOLF are exempt from critical habitat for the San Diego fairy shrimp under section 4(a)(3) of the Act as we have determined that these installations' INRMPs benefit the San Diego fairy shrimp and features essential to its conservation (see Exemptions and Exclusions section below for a detailed discussion on exclusions and exemptions). We believe that these exemptions are legally and scientifically justified because implementation of these INRMPs will benefit the San Diego fairy shrimp and its habitat at each installation.

Habitat Conservation Plans and Natural Community Conservation Plans

We received several comments related to the exclusion or inclusion of Habitat Conservation Plans (HCPs) and Natural Community Conservation Plans (NCCPs). The comments that we received have been paraphrased and grouped to better clarify how we have handled HCPs and NCCPs in this revised final designation of critical habitat.

Comment 7:

We received comments that discussed the benefits of excluding critical habitat in areas covered by HCPs and NCCPs and comments that discussed the benefits of designating critical habitat in areas covered by HCPs and NCCPs. Commenters that supported the exclusion of areas covered by HCPs and NCCPs stated that these plans provide superior conservation than the section 7 process because HCPs and NCCPs plan for conservation at the landscape level rather than using a project-by-project approach. Supporters of the exclusion of critical habitat in these areas stated that the exclusion of critical habitat will: Benefit partnerships and future planning; prevent additional regulation; avoid legal challenges that HCPs will result in “adverse modification” of critical habitat; and support Implementation Agreements. Supporters of the designation of critical habitat in areas covered by HCPs and NCCPs stated that the designation of critical habitat provides additional protection and conservation benefit to the San Diego fairy shrimp, which is needed to avoid impacts that the HCPs and NCCPs do not protect against. Other commenters stated that HCPs and NCCPs are often under-funded, and actual implementation is sometimes ineffective. One commenter stated that the exclusion of areas covered by HCPs from critical habitat is neither legally sound nor appropriate as demonstrated by the October 13, 2006, ruling by the U.S. District Court for the Southern District of California (

Southwest Center for Biological Diversity

v.

Bartel

, CV 98-2234), which clearly rules that the Multiple Species Conservation Program (MSCP) is ineffective, specifically for protecting the fairy shrimp. The commenter stated that the MSCP cannot act as a surrogate for critical habitat, and lands under the MSCP (and other HCPs) should not be excluded from critical habitat designation.

Our Response:

We believe that regional HCPs and NCCPs typically provide for greater conservation benefits to species than project-by-project consultations conducted under section 7 of the Act. Because large HCPs approach conservation from a regional perspective, these plans have the advantage of addressing conservation issues from a coordinated, integrated perspective rather than a piecemeal project-by-project approach. Moreover, regional HCPs typically provide for the proactive monitoring and management of conserved lands, which is important to the survival and recovery of the San Diego fairy shrimp. Such conservation needs are typically not addressed through the application of the statutory prohibition on adverse modification or destruction of critical habitat. Section 4(b)(2) of the Act authorizes the Secretary to consider the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined that the benefits of exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate an area as critical habitat will result in the extinction of the species. We believe that the exclusions that we made in this final revised rule are legally supported under section 4(b)(2) of the Act and scientifically justified because of the level of protection and long-term conservation for the San Diego fairy shrimp that are a result of the HCPs that we have excluded. Please see the Exemptions and Exclusions section in this revised final rule for a detailed analysis on why we reaffirmed our 2003 determination that the benefit of excluding many of these areas from critical habitat is greater than the benefit of including them in a critical habitat designation.

In response to the comment on the

Southwest Center for Biological Diversity

v.

Bartel

, (CV 98-2234) ruling, we have fully considered this significant information. In this challenge, brought by 14 environmental organizations, the court held that the protections afforded the San Diego fairy shrimp and six other vernal pool species under the City of San Diego's MSCP subarea plan are inadequate, and the Service's decision to issue an incidental take permit to the City based on the subarea plan was arbitrary and capricious. The court enjoined the incidental take permit with respect to ongoing and future land use activities that affect vernal pool habitat. The court concluded, in part, that the approach adopted in the City's MSCP subarea plan for evaluating project impacts on vernal pool species through the ACOE's site-specific permitting process under section 404 of the Clean Water Act had been effectively eliminated by the United States Supreme Court's

SWANCC

decision and that the remaining protections contained in the MSCP subarea plan do not adequately protect the San Diego fairy shrimp. As a result of the decision, we have designated as critical habitat lands covered by the City of San Diego's subarea plan that were considered, but not proposed, in the 2003 revised proposed rule (see Summary of Changes From Previously Designated Critical Habitat and 2003 Proposed Rule section

and Unit Descriptions section below for more details).

Comment 8:

Some commenters requested that we exclude pending HCPs and lands enrolled in the NCCP program be excluded under section 4(b)(2) of the Act or that we remove designated critical habitat concurrent with the final approval of an HCP or NCCP. Commenters recommended the establishment of a set of standards for HCPs and NCCPs that would provide for the automatic removal of these areas from critical habitat at the time these plans are completed. Some commenters stated that the designation of critical habitat in these areas may have a negative effect on entities pursuing an HCP and deter the completion of these pending HCPs. Specifically, we received requests to exclude the following pending HCPs: the Orange County Southern Subregion Habitat Conservation Program (Southern Subregion HCP); the City of Carlsbad Habitat Management Plan (Carlsbad HMP) under the Northwestern San Diego County Multiple Habitat Conservation Program (MHCP); and the County of San Diego's HCP covering the proposed critical habitat in Ramona.

Our Response:

Although we believe that an NCCP/HCP completed in the future will conserve the San Diego fairy shrimp if it is a covered species under the plan, we are not able to automatically remove designated critical habitat. In order to revise a critical habitat designation to take into consideration a completed NCCP or HCP, we are required under sections 4(b)(5) and 4(b)(6) of the Act to follow the appropriate rulemaking process, consistent with available funding and program priorities. We have reanalyzed the areas that were covered by pending HCPs or NCCPs at the time we proposed critical habitat and we have made the following conclusions. The Southern Subregion HCP was completed on January 10, 2007. This plan provides for the conservation of the San Diego fairy shrimp in critical habitat subunits 1D and 1E. We have determined that the benefits of exclusion outweigh the benefits of inclusion for these subunits, and therefore we have excluded these subunits from critical habitat under section 4(b)(2) of the Act (see the Exemptions and Exclusion section for more details on this exclusion.)

The Carlsbad HMP under the MHCP was completed on November 15, 2004. This plan provides for the conditional coverage of the San Diego fairy shrimp; however, the coverage of this species is contingent on the specific commitment to manage vernal pool habitat within this plan. At this time the City of Carlsbad has not committed to manage vernal pool habitat or include the area we identified as critical habitat within this plan (subunit 2G); therefore the Carlsbad HMP under the MHCP does not cover the San Diego fairy shrimp at this time, and we have not excluded lands covered under this plan from critical habitat.

At this time the HCP for northern San Diego County is still in the process of being written. No draft of this plan is available for public review. Therefore, we have not excluded lands covered under this plan from critical habitat in and around Ramona (subunits 3E.1, 3E.2, 3E.3, and 3E.4).

Comment 9:

We received comments requesting that we exclude the area covered by the San Diego Gas & Electric (SDG&E) NCCP/HCP.

Our Response:

We have reviewed the appropriateness of excluding lands covered by the SDG&E NCCP/HCP and determined that SDG&E does not own any lands containing features we have determined essential for the conservation of the San Diego fairy shrimp. Although SDG&E is bound by this NCCP/HCP on all easements and access roads that we have determined contain features essential to the conservation of the San Diego fairy shrimp, the actual owners of the land covered by the SDG&E NCCP/HCP are not bound by this plan. Therefore we believe it would be inappropriate to consider lands not under the control of SDG&E for exclusion based on the coverage provided in this NCCP/HCP.

Comment 10:

We received a comment requesting that we reaffirm our exclusion of the Orange County Central-Coastal NCCP/HCP (Central-Coastal NCCP/HCP) in this final revised critical habitat.

Our Response:

In the April 22, 2003, proposed rule to designate revised critical habitat for the San Diego fairy shrimp, we discussed the Central-Coastal NCCP/HCP and stated that areas essential to the San Diego fairy shrimp covered by this plan should be excluded from critical habitat. In our review of the proposed critical habitat we found that, although critical habitat subunits 1A, 1B, and 1C are all near the boundary of this plan, there are no areas containing features essential to the San Diego fairy shrimp within the area covered by the Central-Coastal NCCP/HCP. Furthermore, we do not know of any vernal pools occupied by the San Diego fairy shrimp within the area covered by the Central-Coastal NCCP/HCP. Therefore, we have no reason to include a discussion of the Central-Coastal NCCP/HCP in this revised final designation of critical habitat.

Other Comments on Inclusions, Exclusions, and Removals

Comment 11:

One commenter requested that we exclude the Shaw Lorenz project site on Del Mar Mesa from critical habitat based on the conservation actions that the developer of the site is undertaking as part of this development.

Our Response:

The vernal pool habitat on the Shaw Lorenz project site was not known to be occupied at the time of the proposed rule and the Shaw Lorenz project site was not considered in the proposed rule to revise critical habitat (68 FR 19888, April 22, 2003). Therefore, we are not designating lands at the Shaw Lorenz project site as critical habitat for the San Diego fairy shrimp.

Comment 12:

The Army Corps of Engineers (ACOE) raised the following issues in their comments: (1) Some lands owned by the Department of Homeland Security (DHS) within proposed critical habitat subunits 5D and 5F have already been disturbed and developed by the construction of the 14-Mile Border Infrastructure System (BIS) project along the United States/Mexico border and should be removed from critical habitat; (2) lands owned by the DHS located north of the BIS within proposed critical habitat subunit 5F are being conserved by the DHS and should not be designated as critical habitat under section 3(5)(A) or should be excluded under section 4(b)(2) of the Act; and (3) lands within the footprint of the BIS do not or will not contain any of the PCEs for the San Diego fairy shrimp because of their use as an active enforcement zone subject to ongoing vehicular use.

Our Response:

We evaluated habitat on lands owned by the DHS within proposed subunits 5D and 5F, and removed or excluded all DHS-owned lands from this final designation. Some portions of the BIS project have already been completed and the habitat impacted no longer contains the PCEs essential to support the San Diego fairy shrimp; therefore, we removed these lands from the critical habitat designation. Please see the Summary of Changes From Previously Designated Critical Habitat and 2003 Proposed Rule section for more information about the removal of these lands from critical habitat. The remaining 29 ac (12 ha) of DHS-owned land within subunit 5F includes a vernal pool restoration site (Arnie's Point) where the DHS is offsetting impacts to vernal pool habitat associated with the construction of the BIS. The DHS is implementing conservation measures for the San Diego

fairy shrimp at Arnie's Point even though they have a waiver exempting them from obligations under section 7 of the Act. The entire strip of DHS lands (29 ac (12 ha)) along the U.S./Mexico border that meet the definition of critical habitat are important to national security. We determined that the benefits of excluding this area from critical habitat outweigh the benefits of including this area in critical habitat. A detailed discussion of our rationale for excluding these lands is provided in the Exemptions and Exclusions section of this revised final rule.

Comment 13:

One commenter disagreed with our proposed critical habitat unit for the land in East Otay Mesa. The commenter stated that some of the areas proposed as critical habitat have been developed. The commenter concluded that the mapping of the critical habitat is inaccurate. Another commenter provided comments on a specific area on Otay Mesa. This commenter stated that proposed critical habitat subunit 5D is completely within either the City of San Diego subarea plan under the MSCP or the County of San Diego subarea plan under the MSCP. The commenter added that a significant portion of the proposed critical habitat in subunit 5D, including nearly 100 percent of the Otay Crossings Commerce Park project, is within the MSCP boundaries. The commenter stated that the inclusion of the MSCP land in critical habitat is counter to the involvement of the Service in the HCP process. The commenter stated that the Otay Crossings Commerce Park project site has been surveyed repeatedly for vernal pools and San Diego fairy shrimp and only vernal pools that were present on the site in the recent past have been eliminated by the construction of the BIS project. The commenter indicated that the East Otay Mesa area supports relatively few known locations of the listed San Diego fairy shrimp, and that these locations are scattered and are not vernal pool complexes. The commenter stated that the mesa area generally slopes to the south, providing limited flat areas where fairy shrimp pools could become established. The commenter concluded that the designation of this area as critical habitat for the San Diego fairy shrimp would not afford additional benefits to the species and would not play a significant role in the species' recovery.

Our Response:

The area identified in the April 22, 2003, proposed rule to revise critical habitat for San Diego fairy shrimp on East Otay Mesa was reevaluated at the suggestion of the commenters. Some of the land proposed as critical habitat was removed because it did not contain the PCEs, such as the lands owned by the DHS in subunit 5D. However, we found that the majority of the area was appropriately mapped and is included in the revised final designation. The areas we are designating as critical habitat contain the features essential for the conservation of the San Diego fairy shrimp. Critical habitat subunit 5D on eastern Otay Mesa contains vernal pools that support known locations of the San Diego fairy shrimp and the watershed area necessary to maintain the vernal pools. The area designated as critical habitat gently slopes to the south and contains several vernal pools dispersed across an area of approximately 391 ac (158 ha). The area on East Otay Mesa included in the designation is relatively undamaged by development and off-road vehicle activity. This area is entirely within the County of San Diego's Major and Minor Amendment Areas of the MSCP, which are not covered as part of the County's approved MSCP subarea plan. Therefore, it is not appropriate to exclude these lands because of their location within the boundaries of the MSCP (see Exemptions and Exclusions section below for a detailed discussion).

Criteria and Methodology

Comment 14:

Some commenters stated that the Service has deferred determination of whether specific areas contain PCEs, leaving landowners without effective notice as to whether their property contains critical habitat.

Our Response:

We have determined that all of the designated units contain all of the PCEs (see Unit Descriptions section below). In our proposed rule, we provided a description of the PCEs and maps of the areas that we proposed for critical habitat in the

Federal Register

. Additional maps showing all areas containing features arranged in the quantity and spatial configuration essential for the conservation of the San Diego fairy shrimp were made available to the public for review and comment on our Web site. Also, the contact information for the Carlsbad Fish and Wildlife Office was provided to the public. These resources were readily available to any landowner with a question regarding the critical habitat proposal, including the PCEs. We believe these measures effectively notified landowners concerning the proposed revised designation of critical habitat.

Furthermore, in this revised final rule, we have re-evaluated all units and removed any areas that do not contain the PCEs (see Summary of Changes From Previously Designated Critical Habitat and 2003 Proposed Rule section below). Where possible, the boundaries of final critical habitat have been refined to remove lands containing features such as roads, buildings, and other infrastructure that do not contain the PCEs; however, it was not possible to exclude all such areas from the designation. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed areas. Any such structures and the land under them inadvertently left inside critical habitat boundaries shown on the maps of this revised final rule have been excluded by text and are not designated as critical habitat. Please refer to the Criteria Used to Identify Critical Habitat section below for more information about the mapping methodology. Landowners needing assistance in determining whether their property lies within designated critical habitat can contact the Carlsbad Fish and Wildlife Office for assistance (see

ADDRESSES

).

Comment 15:

One commenter indicated that the mapping methodology to identify areas for critical habitat is too general, and does not adequately account for site-specific analysis of the size and attributes of the vernal pools. Another commenter indicated that we had no scientific basis for using a 328 feet (ft) (100 meters (m)) grid for mapping of critical habitat.

Our Response:

In the April 22, 2003, proposed rule we used a 328 feet (ft) (100 meters (m)) grid to delineate critical habitat. In order to make our mapping more specific we are no longer using the 328 feet (ft) (100 meters (m)) grid, instead we are mapping the specific areas that contain the PCEs for this species. We used a number of data sources to map the vernal pool complexes identified as critical habitat in this revised final rule. The vernal pool and San Diego fairy shrimp data referenced for this revised final rule include: Beauchamp and Cass 1979 (pp. 1-15), Zedler and Ebert 1979 (pp. 1-150), Bauder 1986 (pp. 1-29, Appendices), City of San Diego 2003 (pp. 1-125, Appendices), survey reports for San Diego fairy shrimp from 10(A)(1)(a) permits, and California Natural Diversity Database (CNDDB) (2004, 2007) information. In addition to this location data for vernal pools and San Diego fairy shrimp, we used topographical maps, soil maps (Bowman 1973, pp. 7-17), and aerial imagery to capture the PCEs associated with each vernal pool complex designated as critical habitat. We also relied on information obtained from site visits to vernal pool complexes to verify the

presence of the PCEs in the areas that we identified as critical habitat.

Comment 16:

One commenter stated that it is important to designate the entire area within each vernal pool complex, including the watershed of the vernal pool, in order to provide habitat for animals that are vectors for dispersal of San Diego fairy shrimp cysts. Another commenter provided similar information to specific vernal pool complexes in San Marcos, California.

Our Response:

This revised final designation includes vernal pool basins and the associated watersheds necessary to support the San Diego fairy shrimp; however, we did not include larger areas of habitat needed for animal dispersal vectors. We did not have enough specific information on this topic to include other areas with any degree of certainty. We believe that our discussion of the PCEs adequately captures the physical and biological features essential for conservation of the San Diego fairy shrimp (see Primary Constituent Elements section below for details). The information regarding vernal pool complexes added to the information that we previously had on the vernal pools in San Marcos; however, it did not significantly change our analysis of this area.

Comment 17:

One commenter stated that stochastic (random) events could drive the species to extinction since it no longer has the ability to meet the challenges of environmental or human-caused stress. The commenter stated that the exclusion of any area from critical habitat could result in the extinction of the San Diego fairy shrimp.

Our Response:

We agree that stochastic events could negatively impact the San Diego fairy shrimp throughout its range. We reaffirmed our 2003 determination to exclude areas covered by HCPs that provide for the conservation of vernal pool habitat and the San Diego fairy shrimp because these plans incorporate management and monitoring for vernal pool ecosystems. As environmental conditions change, management of these areas will also change to address new threats to the species and its habitat. The areas we excluded also provide for management actions to address human induced stresses such as off-road vehicle use or the illegal dumping of trash in preserve areas. We determined the exclusion of these areas from critical habitat designation under section 4(b)(2) of the Act will not result in the extinction of the San Diego fairy shrimp (see Exemptions and Exclusions section below for a detailed discussion).

Comment 18:

Several commenters requested that the Service expand the proposed critical habitat to include all essential vernal pools identified in the Recovery Plan for Vernal Pools of Southern California (recovery plan) (Service 1998a), including the vernal pools listed in appendices F and G.

Our Response:

We believe that this final revised critical habitat reflects the intent of the recovery plan (Service 1998a). The 1998 recovery plan outlined four recovery criteria for the seven federally listed vernal pool species occurring in Southern California. In sum the recovery criteria state that: (1) Existing vernal pools and their associated watersheds that contain a federally-listed species should be secured for that specific supported species; (2) existing vernal pools and their associated watersheds need to be secured in a configuration that maintains habitat function and species viability (as determined by future research); (3) secured vernal pools be enhanced or restored such that population levels of existing species are stabilized or increased; and (4) population trends must be shown to be stable or increasing for a minimum of 10 years prior to reclassification (Service 1998a, pp. iv-vi; pp. 62-64T). The intent of the recovery criteria is to identify, protect existing vernal pools, and, as necessary, restore degraded vernal pool habitat within the range of the San Diego fairy shrimp. Appendices F and G of the recovery plan identified vernal pool complexes needed to stabilize or reclassify the San Diego fairy shrimp to threatened status based on information available to the Service in 1998. Since that time we have gained additional information about the relative significance and current status of vernal pool areas identified in appendices F and G, and we have identified several important areas that were discovered to be occupied by the San Diego fairy shrimp after the recovery plan was completed that are not analyzed in the recovery plan. The areas designated in this rule reflect our current assessment, based on the best available information, of habitat essential to the conservation of the species. Please see Table 1 and the Summary of Changes From Previously Designated Critical Habitat and 2003 Proposed Rule section below for a full discussion.

Comment 19:

One commenter stated that the San Diego fairy shrimp has already gone extinct in Los Angeles and Orange counties and that it is close to extinction in Riverside and Ventura counties. The commenter indicated that all remaining habitat throughout the species' range is essential to the species' survival and will require special management. The commenter stated that we should designate critical habitat in areas where new vernal pools have been found since the publication of the proposed rule in April 2003.

Our Response:

This commenter is incorrect about the historical distribution of the San Diego fairy shrimp. The best available scientific information indicates that the San Diego fairy shrimp has always been restricted to Orange and San Diego counties in the United States and to northwestern Baja California in Mexico. There is a single record of a female fairy shrimp in Santa Barbara County; however, the site where this fairy shrimp was collected from has been revisited and there is no corroborating evidence indicating San Diego fairy shrimp occupy this area. We believe this original report was an error. The San Diego fairy shrimp has never been reported from Los Angeles, Riverside, or Ventura counties. The San Diego fairy shrimp is still present in Orange County. The commenter did not provide specific information on the vernal pool complexes that they believe are essential to the conservation of the San Diego fairy shrimp, so we cannot address the reasons that these areas were not included in critical habitat. In addition, we have not evaluated new occurrences discovered after the 2003 proposed rule to determine whether they are essential to the conservation of the species. In light of the fact that the commenter did not provide any specific data and that we have not evaluated new occurrences, it would not be appropriate to include these occurrences in the final rule. Section 4 of the Act allows for revision of any critical habitat designation as appropriate to evaluate and include new information through the full rulemaking process allowing for public comment on all proposed lands.

Policy and Procedures

Comment 20:

The ACOE requested clarification of the definition of “destruction or adverse modification” of critical habitat.

Our Response:

Concerning the ACOE's request for a clarification of “destruction or adverse modification” of critical habitat, we have revisited the regulatory definition of adverse modification in relation to the species' conservation. Recent decisions by the Fifth and Ninth Circuit Court of Appeals have invalidated our regulatory definition of “adverse modification” at 50 CFR 402.02 (see

Gifford Pinchot Task Force

v.

U.S. Fish and Wildlife Service, 378 F. 3d 1059

(9th Cir 2004) and

Sierra Club

v.

U.S. Fish and Wildlife Service, 245 F.3d 434, 442F

(5th Cir 2001)).

Consistent with the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the PCEs to be functionally established) to serve the intended conservation role for the species.

Comment 21:

One commenter stated an environmental impact statement (EIS) as defined under the National Environmental Policy Act (NEPA) should be written to address the potential significant impacts from the designation of San Diego fairy shrimp critical habitat.

Our Response:

It is our position that, outside the Tenth Circuit Court, we do not need to prepare environmental analyses as defined by NEPA in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the

Federal Register

on October 25, 1983 (48 FR 49244). This position was upheld in the courts of the Ninth Circuit (

Douglas County

v.

Babbitt

, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996)).

Comment 22:

Some commenters stated that it was unclear how critical habitat designation would affect private landowners.

Our Response:

The designation of critical habitat does not affect State, local, private or other non-Federal landowners unless a project requires Federal funding, permits, or authorization. Critical habitat does not affect land ownership or establish a refuge, preserve, or other special conservation area. It does not allow government or public access to private lands, and will not result in the closure of an area to all access or use. Please refer to the Effects of Critical Habitat Designation section below for more information.

Comment 23:

One commenter reiterated the Service's mandate to follow Secretarial Order 3206 and Executive Order 13175 regarding consultation and coordination with Tribal governments when deciding to propose critical habitat on Tribal lands.

Our Response:

Executive Order 13175 and Secretarial Order 3206 direct the United States government, and specifically the Service, to establish regular and meaningful consultation and collaboration with Tribal officials in the development of Federal policies that have Tribal implications, to strengthen the government-to-government relationships with Tribes, and reduce the imposition of unfunded mandates upon Tribes. In the case of San Diego fairy shrimp, there are no known occurrences of this species on Tribal lands, nor is there any habitat essential for the conservation of the San Diego fairy shrimp on Tribal lands. Therefore, no critical habitat is designated for this species on Tribal lands.

Comment 24:

One commenter requested that we extend the comment period on the proposed designation and DEA.

Our Response:

Following the publication of the proposed critical habitat designation on April 22, 2003, we opened a 60-day public comment period that closed on June 23, 2003, and conducted outreach notifying affected elected officials, local jurisdictions, interest groups, and property owners. We conducted much of this outreach through legal notices in regional newspapers, telephone calls, letters, and news releases faxed and/or mailed to affected elected officials, local jurisdictions, and interest groups, and publication of the proposed designation and associated material on our Web site. We prepared a DEA of the proposed critical habitat designation, which we made available to the public on April 8, 2004 (68 FR 18516). The public comment period was reopened through May 10, 2004. During this comment period, two public hearings were held on April 29, 2004, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. in Carlsbad, California. We provided notification of the DEA through telephone calls and letters and news releases faxed and/or mailed to affected elected officials, local jurisdictions, and interest groups. We also published the DEA and associated material on our Web site following the draft's release on April 8, 2004. A third period for public comment was opened from April 3, 2007, to May 3, 2007. In addition, several public comment periods were held on our earlier proposed and final critical habitat rules, which are similar in many respects to the current proposed and final rule. Because of our obligation to meet the deadline established in settlement of litigation involving critical habitat designation for the San Diego fairy shrimp, we were not able to extend or open an additional public comment period.

Economic Analysis

Comment 25:

Some commenters stated, in general, that we should exclude areas from critical habitat due to the significant economic impacts associated with the designation of critical habitat.

Our Response:

We have not excluded any lands based on disproportionate economic impacts to a property. We have responded to comments that provided us with specific information and maps requesting economic exclusions below.

Comment 26:

One commenter stated that the placement of critical habitat over subunit 5D, especially the Otay Crossings Commerce Park project, will only divert limited staffing and financial resources towards addressing critical habitat issues instead of focusing on the successful implementation of the MSCP.

Our Response:

As discussed above in the response to Comment 15 we reanalyzed subunit 5D. We removed all areas in this subunit that do not contain features essential to the conservation of the San Diego fairy shrimp. However, a large portion of subunit 5D has been designated because it contains features in quantity and spatial arrangement essential to the conservation of the San Diego fairy shrimp, i.e., PCEs (Please see Criteria Used to Identify Critical Habitat section). Our economic analysis of subunit 5D did not indicate that the economic impacts in this subunit were substantially different from other areas included in critical habitat, therefore we have not excluded this area due to disproportionate economic impacts.

Comment 27:

One commenter stated that the Service's appreciation for, and earlier estimates of, the cost of the shrimp's listing have proven low. The commenter stated that delays in development associated with the breakdown of the MSCP/section 7 of the Act consultation process have been high. The commenter stated that the aftermath of the

Southwest Center for Biological Diversity

v.

Bartel

(CV 98-2234) decision has increased those costs. The commenter stated that a small property or project with a debt of just $10 million, for example, will see an additional cost in interest alone of approximately $50,000 per month of delay in the section 7 consultation process. Large projects with massive early expenditure on design, drawings, and the California Environmental Quality Act (CEQA) planning process, as well as sunk development costs will have incurred and will continue to incur extraordinary carrying costs too large to calculate except by the agency with access to all of the projects delayed and their sunk costs and carry costs. The commenter stated that the new rulemaking obliges the Service to list the projects, public and private, delayed by the ruling and the breakdown of the section 7 consultation process and use the costs to those projects as the minimum cost to date of the critical habitat designation while also calculating the additional cost of going

forward. The commenter stated that the economic analysis should also include a reasonable analysis of the impact of a critical habitat designation on that land not yet under development but newly burdened with this designation. Another commenter echoed these comments and stated that the result of a critical habitat designation would cause land owners to enter into a section 7 consultation with the Service. The commenter stated that this consultation process would lengthen the time and increase the cost to process projects. The commenter added that adding to the regulatory burden does not make sense since the MSCP was created to expedite the processing of projects within the County while providing for the long-term survival of fairy shrimp within the preserve lands.

Our Response:

The draft economic analysis (DEA) addresses potential costs that a private land development may incur from the designation of critical habitat. It is not necessarily the case that delays for development projects will result from the designation of critical habitat. The need to complete section 7 consultations in and of itself does not automatically delay private development projects; these consultations can generally be coordinated with baseline land use regulatory processes and do not necessarily increase the time to obtain approvals. The DEA identified projects that were currently being processed (i.e., those that are reasonably foreseeable) or had been recently completed as the most likely projects to be delayed by the designation of critical habitat. The DEA analyzed the cost that these projects may incur and incorporated this information into the analysis. Please see the section Time-Delay Costs of the DEA (Economic and Planning Systems, Inc. 2004, pp. 53-55). Further, the economic costs associated with development delays resulting from the

Southwest Center for Biological Diversity

v.

Bartel

(CV 98-2234) decision are not the result of the existing critical habitat designation or of the revised critical habitat designation. Rather they are the result of the court's determination that there are deficiencies in the City of San Diego subarea plan under the MSCP and in the Service's decision to issue an incidental take permit based on the plan. In the aftermath of

SWANCC

and

Rapanos

it is not clear to what extent projects affected by the

Southwest Center for Biological Diversity

v.

Bartel

(CV 98-2234) decision are likely to have a Federal nexus that would trigger consultation under section 7 of the Act and an examination of the projects' impacts on critical habitat.

Comment 28:

One commenter stated that the DEA was flawed because it used existing HCPs and INRMPs that are already in place as a baseline for the economic analysis. The commenter indicated that the use of baseline conditions underestimates the economic cost of the designation. The commenter also stated that the DEA fails to take into account the impact of the designation of critical habitat on the housing market or on transportation projects.

Our Response:

The economic analysis used baseline conditions and regulations that are already in place for the economic analysis because the designation of critical habitat will not alter existing conditions. In areas that do not have existing HCPs or other regulations that provide for the regulation of San Diego fairy shrimp habitat, the economic analysis highlights the possible costs that may be due to the designation of critical habitat. We believe that the economic analysis did address both impacts on the housing market and transportation projects by analyzing the impacts of critical habitat on private land development and on road construction and maintenance.

Comment 29:

Commenters stated that the DEA should use case studies rather than cost estimates or projections and that the economic analysis should be released to the public prior to the final designation of critical habitat. Other commenters stated that the economic analysis should be completed prior to proposing critical habitat.

Our Response:

We agree that cost estimates derived from real examples are preferable. To the extent possible, our economic analysis is derived from actual cost information collected in the preparation of the economic analysis and during the comment periods. The DEA was made available for public review and comment prior to the final designation of critical habitat. Under 50 CFR 424.19, we are not required to consider the probable economic impacts of designating a particular area as critical habitat until after critical habitat is proposed. There were two comment periods for the public to provide input on the DEA, one opened on April 8, 2004, and closed May 10, 2004 (69 FR 18516), the other opened on April 3, 2007, and closed May 3, 2007. There were also public hearings on April 29, 2004, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. in Carlsbad, California, to provide comments on the DEA. An additional comment period was opened from April 3, 2007, to May 3, 2007, on the DEA and proposed rule. The final designation takes into consideration the findings of the DEA, and comments and information submitted to us regarding the DEA.

Comments From State Agencies

Comment 30:

California Department of Fish and Game (CDFG) supported the exclusion of Natural Communities Conservation Plans (NCCP)/HCPs that include the San Diego fairy shrimp as a covered species. Additionally, CDFG also requested that land designated as critical habitat be automatically removed from such designation upon approval of an NCCP.

Our Response:

Although we agree with CDFG that an approved NCCP/HCP likely provides a conservation benefit to the species covered by that particular plan and should be considered for exclusion from critical habitat designation under section 4(b)(2) of the Act, we are not able to automatically remove designated critical habitat from areas once an NCCP/HCP is approved. In order to revise a critical habitat designation to take into consideration a completed NCCP or HCP, we are required under sections 4(b)(5) and 4(b)(6) of the Act to follow the appropriate rulemaking process. If an NCCP or HCP that includes the San Diego fairy shrimp as a covered species is approved subsequent to the designation of critical habitat for the species, we can reassess the critical habitat boundaries and revise such designation through the rulemaking process, consistent with available funding and program priorities.

Comment 31:

CDFG requested that State-owned land on Del Mar Mesa be excluded from the revised final designation of critical habitat.

Our Response:

The State-owned lands on Del Mar Mesa are intermingled with other conservation lands on Del Mar Mesa under Federal, local, and private ownership. We have determined that many of these lands meet the definition of critical habitat and contain the features essential to the conservation of the SDFS; we are designating these lands (including State-owned lands) as critical habitat in this final rule. Several landowners, including the State, are working together toward preservation and management of the vernal pools on Del Mar Mesa and we applaud this effort. The “Del Mar Mesa Preserve” lands are essential for the conservation of the San Diego fairy shrimp because they consist of one of the largest continuous blocks of largely undisturbed mesa topography, on non-military land, remaining in San Diego County. The area contains several hundred vernal pools occupied by San Diego fairy shrimp and other sensitive

vernal pool species. The lands that contain the features essential for the conservation of the San Diego fairy shrimp on Del Mar Mesa are part of the area that is within the City of San Diego subarea plan under the MSCP. Consistent with the City's subarea plan, a draft management plan for the Del Mar Mesa Preserve has been written (Recon 2002); however, the plan has not been finalized or implemented. As recognized in the plan, the Del Mar Mesa Preserve requires integrated management to control threats associated with off-road vehicle use and illegal dumping; however, the Del Mar Mesa Preserve lands are not adequately fenced or otherwise managed. Funding to implement the draft management plan has yet to be identified. Although we considered, but did not propose lands covered by the City of San Diego subarea plan under the MSCP under section 4(b)(2) in the proposed rule; we have determined that it is inappropriate to exclude lands within the City of San Diego subarea plan (including State-owned lands) under the MSCP (see Summary of Changes From Previously Designated Critical Habitat and 2003 Proposed Rule section and Exemptions and Exclusions section below for a detailed discussion).

Summary of Changes From Previously Designated Critical Habitat and 2003 Proposed Rule

On October 3, 2000, we designated five units comprising a total of 4,025 ac (1,629 ha). We proposed to revise this designation to 6,098 ac (2,468 ha) on April 22, 2003 (68 FR 19888). The areas designated in this revised final rule constitute a revision of the areas we proposed as critical habitat for San Diego fairy shrimp on April 22, 2003 (68 FR 19888). In addition, all of the land designated in this revised final rule was considered for critical habitat in the 2003 proposed rule. In this section we present the differences between what was designated in 2000, what was proposed in 2003, and what is included in this final designation.

1. The 2000 final critical habitat designation (65 FR 63438, October 3, 2000) consisted of five units totaling 4,025 ac (1,629 ha). This revision to designated critical habitat also includes five units totaling 3,082 ac (1,248 ha). The five units in this revision generally correspond to the previously designated five critical habitat units, though some vernal pool complexes have been added to units where occupancy of the San Diego fairy shrimp has been identified outside of previously designated critical habitat. Additionally, we have refined our mapping techniques (as detailed below) and used data to limit the critical habitat designation to those areas that contain the features essential to the conservation of the species that may require special management considerations or protection.

2. In the 2000 critical habitat rule (65 FR 63438, October 3, 2000), the descriptions of unit boundaries were delineated on Universal Transverse Mercator (UTM) gridlines set on a 820 ft (250 m) grid. In the 2003 revised proposed designation, we based the critical habitat boundary descriptions on UTM gridlines set every 100 m (328 ft). These square grids were overlaid on areas determined to contain the PCEs required by the species. Portions of these grid squares did not contain PCEs, and were inadvertently included within the boundaries of the critical habitat designation due to mapping limitations. The use of UTM gridlines was the best available methodology to digitize critical habitat boundaries and provide UTM coordinates to the public of the boundaries at the time of the 2000 final designation and 2003 proposed designation. We are now able to delineate critical habitat unit boundaries by screen-digitizing habitat polygons using ArcMap, a computer Geographic Information System (GIS) program. We have used this methodology to produce boundaries associated more precisely with areas that we determined contain the PCEs for the species and are essential for the conservation of the San Diego fairy shrimp, and removed large areas of habitat that do not contain the features essential to the conservation of the species (see the “Criteria Used to Identify Critical Habitat” section for a detailed discussion).

3. As a result of comments received, we made editorial changes to the sections of the rule pertaining to the background, the PCEs, the criteria used to identify critical habitat, and the unit descriptions. We made these changes to eliminate redundancy, improve clarity, and provide a more in-depth explanation of the biological requirements of the San Diego fairy shrimp. We have revised the PCE section since publication of the 2000 critical habitat rule (65 FR 63438, October 3, 2000) to include more information about how we developed the PCEs. We added more specific information relating to: the ponding duration and depth required by the San Diego fairy shrimp (PCE 1); surrounding upland areas that vernal pools need to function naturally (PCE 2); and the soils that vernal pools are known to form on (PCE 3). We also provided additional information in our Criteria Used to Identify Critical Habitat Section to increase the transparency of the critical habitat designation. We provided information to better explain how we identified which vernal pool complexes contain the features essential to the conservation of the San Diego fairy shrimp, and how we delineated the areas that contain the PCEs for each critical habitat subunit.

4. The 2000 designation (65 FR 63438, October 3, 2000) and the 2003 proposed revision (68 FR 19888, April 22, 2003) broadly included upland habitat surrounding many vernal pools. Much of the surrounding upland habitat did not contain the PCEs. Furthermore, the 2000 designation (65 FR 63438, October 3, 2000) and the 2003 proposed revision (68 FR 19888, April 22, 2003) included habitat that does not contribute to any vernal pool watershed; for example, these rules included lands that are down-slope from vernal pool complexes. We used recent aerial imagery to determine where development has occurred, and removed any lands from this revision that do not contain the PCEs nor support the species. We also removed areas that do not contribute to any vernal pool watershed and have no affect on the ability of the San Diego fairy shrimp to persist or be recovered within a vernal pool watershed, and are therefore not essential to the conservation of this species. The majority of these lands were on the edges of an area considered for designation.

5. The 2000 critical habitat rule (65 FR 63438, October 3, 2000), the 2003 proposed revision (68 FR 19888, April 22, 2003), and this final designation are all largely based on the 1998 recovery plan. The San Diego fairy shrimp was first taxonomically described in 1993 (Fugate 1993, pp. 296-304). The species was subsequently listed as endangered in 1997, and included in a recovery plan for seven vernal pool species (two invertebrates and five plants) in southern California published the following year. The 1998 recovery plan outlined four recovery criteria for the seven federally listed vernal pool species. In sum the recovery criteria state that: (1) Existing vernal pools and their associated watersheds that contain a federally listed species should be secured for that specific supported species; (2) existing vernal pools and their associated watersheds need to be secured in a configuration that maintains habitat function and species viability (as determined by future research); (3) secured vernal pools be enhanced or restored such that population levels of existing species are

stabilized or increased; and (4) population trends must be shown to be stable or increasing for a minimum of 10 years prior to reclassification (Service 1998a, pp. iv-vi; pp. 62-64). In addition, the 1998 recovery plan included appendices that identified specific vernal pool complexes as “necessary to stabilize the proposed and listed vernal pool” (appendix F) and other vernal pool complexes as “necessary to reclassify the proposed and listed vernal pool species” (appendix G). The recovery plan did not explain how the vernal pool complexes listed in these appendices were identified for inclusion on the list nor why other occupied vernal pool complexes were not included in these appendices. Task 113, which relates to criteria 1, recognizes that certain pools within any vernal pool complex may not be necessary to maintain habitat function and species viability (Service 1998a, p. 66). As illustrated in Table 1, the 2000 critical habitat designation included many, but not all of the vernal pools identified in appendices F and G of the recovery plan. Likewise, the 2003 proposed revision included many, but not all, of the vernal pools identified in appendices F and G and also added several occupied vernal pools that were either not identified in the recovery plan, or were identified but not included in appendices F and G. In this final designation, we reanalyzed all vernal pool complexes identified in the recovery plan and reviewed all data identifying additional vernal pool complexes occupied by the San Diego fairy shrimp to determine which vernal pool complexes are essential to the conservation of this species, including the surrounding watershed necessary to support the complex.

As a consequence, this final revision to critical habitat does not include some lands that were identified in the recovery plan for which we have no data documenting historical or existing occupancy by the species or that, because of location, we do not believe would contribute meaningfully to the conservation of the species. Though the recovery plan focused predominantly on protecting existing habitat, the recovery plan did include other tasks to reestablish vernal pool habitat based on historical structure and composition to increase genetic diversity and population stability (Service 1998a, p. 69). The recovery plan noted that historical distributions of vernal pool species can be reconstructed and the landscape restored sufficiently to allow for the reestablishment and expansion of populations, where necessary (Service 1998a, p. 71). At this time, we have not identified any specific areas within the extant range of the San Diego fairy shrimp where this species should be reestablished; therefore we are not designating any areas for this purpose. If such areas are identified and restored in the future, we may at that time revise critical habitat to include them. We also removed areas that were identified in the 1998 recovery plan as occupied but not included in either Appendix F or G as necessary to stabilize or reclassify the San Diego fairy shrimp, unless we had new information that was not evaluated at the time of the 1998 recovery plan that indicated that these areas were essential to the conservation of the species. This final revision to critical habitat includes some lands that were not identified in the recovery plan or the 2000 critical habitat designation, but which we have since concluded are within the geographical area occupied by the species at the time of listing and contain the physical and biological features essential to the conservation of the species. The designation of lands within the extant range of the San Diego fairy shrimp will adequately conserve the species.

In addition, the following specific areas are removed from critical habitat:

a. Subunit 3B, San Marcos, northwest—The recovery plan lists this area in appendix G, grouping this particular complex with other occupied vernal pools in the San Marcos area. This unit was designated in 2000 and included in the 2003 proposal to revise the critical habitat designation. However, this area is degraded, surrounded by development, and does not contribute to the watershed of any occupied vernal pool complexes within the San Marcos area. Furthermore, we do not have any evidence to indicate that the San Diego fairy shrimp has ever occupied this vernal pool complex, currently or historically. Based on this information, we have determined that these lands are not essential to the conservation of the San Diego fairy shrimp and have removed these lands from the final designation.

b. Portions of subunit 3E, Ramona—The recovery plan specifically identifies the need to secure existing vernal pools and their watersheds within the Ramona complexes that contain San Diego fairy shrimp. Since the publication of the 2000 designation and the proposed revision to critical habitat in 2003, a survey was conducted to determine the distribution of vernal pools in the area around Ramona. The 2003 proposed rule included large expanses of habitat that did not contain any vernal pool complexes. The recent surveys in Ramona allowed us to more precisely map the distribution of vernal pool habitat. We used the recent survey data to identify and group all occupied vernal pools within subunit 3E. The Ramona area is gently sloped, and the distribution of soils did not correspond to the distribution of vernal pools, adding complexity to defining the watershed area that contributes to the identified vernal pool basins. Without more specific information on the extent of the watersheds in this gently sloping area, we delineated these units by including all lands connecting the identified vernal pools. Since we removed large areas of habitat within this subunit, we renamed the remaining areas as 3E.1, 3E.2, 3E.3, and 3E.4.

c. Fieldstone—The recovery plan, which specifically identified and evaluated this area in appendix E (Status of the Vernal Pool Species Within the Management Areas), did not include this area within either appendix F or G as necessary to stabilize or reclassify the San Diego fairy shrimp. In addition, this subunit was considered but not proposed in the 2003 proposed revision to critical habitat. Finally, we do not have any evidence to indicate that the San Diego fairy shrimp has ever occupied this vernal pool complex, currently or historically. Based on the lack of occupancy data or any recent data contrary to the recovery plan, which specifically did not identify this area as necessary to stabilize or reclassify the San Diego fairy shrimp, we do not consider this complex essential to the conservation of this species.

d. Maddox—The recovery plan, which specifically identified and evaluated this area in appendix E (Status of the Vernal Pool Species Within the Management Areas), did not include this area within either appendix F or G as necessary to stabilize or reclassify the San Diego fairy shrimp. The recovery plan did specifically identify this area in appendix G as necessary to reclassify two plant species (

Eryngium aristulatum

var.

parishii

and

Pogogyne abramsii

). Though this subunit was occupied at the time of listing and it was considered in the 2003 proposed revision to critical habitat, the area was not proposed. This site has been proposed for development and we are working with landowners to identify appropriate offsite mitigation for project impacts. We have no new information on this site that was not considered at the time the recovery plan was written for the San Diego fairy shrimp, and we still conclude that these lands are not essential to the conservation of the

species. Therefore, we are not including these lands in this final designation.

e. Vernal pool complex K1, K2, K6, and K7—The recovery plan groups these complexes together in appendix G as the Otay River complexes and considers these complexes as necessary to reclassify both the San Diego fairy shrimp and

Navarretia fossalis

. The 2000 final designation included the K1 complex and K7 complex within the area designated as critical habitat (subunits 5B and 5A respectively); however, the 2000 final designation did not include complexes K2 or K6 as critical habitat for the San Diego fairy shrimp. In the 2003 proposed revision to critical habitat we proposed the K1 complex as subunit 5A; however, at that time we determined that the K2, K6, and K7 complexes were not essential to the conservation of the species, and furthermore did not include these complexes in the 2003 proposed revision to critical habitat. At this time, we do not have any records to indicate that the San Diego fairy shrimp occupies the vernal pools in the K1 complex, currently or historically. Furthermore, we do not have any records for San Diego fairy shrimp in the Otay River Valley below Lower Otay Reservoir. Conversely, eastern Otay Mesa, directly south of the Otay River Valley, supports many vernal pools where occupancy by the San Diego fairy shrimp has been confirmed although these vernal pools are not identified in the recovery plan. Therefore, consistent with the intent of the recovery plan, we are designating those complexes on eastern Otay Mesa that were not identified in the recovery plan, but are known to support the San Diego fairy shrimp (e.g., complexes in subunit 5D). However, we do not consider the K1 complex or features contained therein to be essential to the conservation of the San Diego fairy shrimp and have removed the vernal pools in the K1 complex from this final designation.

6. In the 2000 critical habitat designation (65 FR 63438, October 3, 2000), we evaluated DOD lands covered by INRMPs to determine if an INRMP that addressed the San Diego fairy shrimp adequately provided management for the species and its habitat. We determined that the INRMP for MCAS Miramar provided adequate management for San Diego fairy shrimp and its habitat; therefore, we determined that vernal pools on MCAS Miramar did not meet the definition of critical habitat and did not include this area under section 3(5)(A) of the Act. In the 2000 critical habitat rule (65 FR 63438, October 3, 2000), we also excluded lands on MCB Camp Pendleton under section 4(b)(2) of the Act. We did not exclude the portion of MCB Camp Pendleton leased to the State of California at San Onofre State Beach from the 2000 critical habitat rule. In the 2003 proposed revision to critical habitat (68 FR 19888), we considered, but did not propose as critical habitat lands, on MCAS Miramar and the NRRF in Coronado under sections 3(5)(A) and 4(b)(2) of the Act, based on the benefits provided by their completed INRMPs. We also considered, but did not propose, mission-essential training areas on MCB Camp Pendleton under section 4(b)(2) of the Act for national security reasons. In this final revised critical habitat designation, all Department of Defense lands covered by an INRMP that we have determined will provide a benefit to the San Diego fairy shrimp are exempt from this critical habitat designation under section 4(a)(3)(B) of the Act; this includes lands at MCAS Miramar, NRRF, MCB Camp Pendleton, and at NOLF (see Exemptions and Exclusions section below for a detailed discussion of each exemption).

7. The 2003 proposed rule to revise critical habitat for the San Diego fairy shrimp identified some lands that we “considered but, did not propose” either because we did not believe these lands met the definition of critical habitat under section 3(5)(A) of the Act or because we specified the land for exclusion under section 4(b)(2) of the Act. Although these areas were not formally identified as proposed critical habitat, we specifically sought public review and comment on these lands and provided maps on the Carlsbad Fish and Wildlife Office's public Web site to facilitate the public's ability to comment substantively on these lands. Through such notice and request for public comment, we alerted the public that the lands could potentially be included in the final designation. Lands considered but not included or proposed for designation were also analyzed for potential economic impacts in the DEA published on April 8, 2004 (69 FR 18516).

8. In the 2003 proposed rule to revise critical habitat for the San Diego fairy shrimp, we “considered but, did not propose” lands covered by the City and County of San Diego's subarea plans under the MSCP (collectively referred to as lands in the San Diego MSCP in the 2003 proposed rule). In this revised final rule, we reaffirm our exclusion of lands covered by the County of San Diego's subarea plan under section 4(b)(2) of the Act (see Exemptions and Exclusions section below for a detailed discussion of these exclusions). However, in light of a ruling issued by the U.S. District Court for the Southern District of California on October 13, 2006, (

Southwest Center for Biological Diversity

v.

Bartel

, CV 98-2234) (referred to here as the

Bartel

decision), we have reevaluated the City of San Diego's subarea plan and have determined that exclusion of lands covered by the City's subarea plan is not appropriate at this time. In a challenge brought by 14 environmental organizations, the district court held that the protections afforded the San Diego fairy shrimp and six other vernal pool species under the City of San Diego's MSCP subarea plan are inadequate, and the Service's decision to issue an incidental take permit for these species to the City based on the subarea plan was arbitrary and capricious. The court enjoined the incidental take permit with respect to ongoing and future land use activities that affect vernal pool habitat. The court concluded, in part, that the approach adopted in the City's MSCP subarea plan for evaluating project impacts on vernal pool species through the ACOE's site-specific permitting process under section 404 of the Clean Water Act had been effectively eliminated by the United States Supreme Court's decision in

Solid Waste Agency of Northern Cook County

v.

U.S. Army Corps of Engineers

, 531 U.S. 159 (2001 (

SWANCC

)) and that the remaining protections contained in the MSCP subarea plan do not adequately protect the San Diego fairy shrimp. As a result of the decision, we have designated as critical habitat the lands that we consider to be essential to the conservation of the species covered by the City of San Diego's subarea plan that were considered, but not proposed, in the 2003 revised proposed rule (see Unit Descriptions section below for more details). Although we did not formally propose these lands in the 2003 proposed rule to revise critical habitat, we notified the public that the lands had been considered for designation and invited the public to comment on our exclusion of the lands from proposed designation. We also provided maps of the lands on our Web site. In our

Federal Register

notice of April 3, 2007, that reopened the comment period on the proposed rule to revise critical habitat, we expressly asked for public comment on how the lands covered by the City of San Diego's subarea plan should be reevaluated with regard to critical habitat designation in light of the

Bartel

decision (72 FR 15857). Therefore, we believe that we provided the public with adequate notice of and an opportunity to

comment on the potential inclusion of these lands in the final designation.

9. In the 2003 proposed rule, we included land within the North Ranch Policy Planning Area, which is owned by The Irvine Company. At the time we published the proposed rule, we recognized that this area was not covered under the incidental take permit issued for the Central-Coastal NCCP/HCP, and that additional planning was necessary to determine conservation and development areas. We have reanalyzed this area, which is known presently as The Irvine Ranch, and have determined that The Irvine Ranch is permanently conserved, managed with adequate current and future funding for the entire property, and managed for the benefit of the San Diego fairy shrimp. As a result, we have excluded The Irvine Ranch under section 4(b)(2) of the Act (see the Exemptions and Exclusions section below for a discussion of these exclusions).

10. In 2003, we proposed inclusion of land in revised critical habitat of lands within the Orange County Southern Subregion HCP. At that time, the plan was still under development. This HCP, which has since been completed and approved by the Service, includes the San Diego fairy shrimp as a covered species. We have determined that the benefits of excluding essential San Diego fairy shrimp habitat lands covered by this plan outweigh the benefits of including these lands in a critical habitat designation. Therefore, we have excluded lands in Orange County covered by the Southern Subregion HCP (proposed subunits 1D and 1E) from this revised final designation under section 4(b)(2) of the Act (see Exemptions and Exclusions section below for a discussion of this exclusion).

11. We are also excluding Fairview Regional Park, City of Costa Mesa (proposed subunit 1B) under section 4(b)(2) of the Act as we have determined that the City of Costa Mesa has completed and is implementing a management plan. We have determined that the benefits of excluding Fairview Regional Park outweigh the benefits of including this area in the critical habitat designation. Please see the Exemptions and Exclusions section below for a discussion of this exclusion.

12. In 2003, we proposed to designate critical habitat on land near the United States/Mexico border. We are excluding a portion of these lands in subunit 5F from the revised final designation under section 4(b)(2) of the Act based on impacts to national security. We determined that the benefit of excluding lands at Arnie's Point outweighs the benefit of including these lands in the critical habitat designation (see the Exemptions and Exclusions section below for a discussion of this exclusion).

As a result of the above exemptions, removals, and exclusions, we are designating 3,082 ac (1,248 ha) as critical habitat in this revised final rule. The lands designated as critical habitat include areas in Orange and San Diego counties. To minimize confusion, we retained our subunit numbers from the 2003 proposed revision. Due to the inclusion of lands that were considered, but not proposed, in the 2003 rule, some of the areas that we are designating as critical habitat do not have subunit numbers. In Unit 4, the inclusion of lands on Del Mar Mesa makes proposed subunits 4A and 4B contiguous, and this area is referred to as subunit 4A/B in this revised final rule. Other areas included in Unit 4 are not contiguous with any proposed subunits and these areas are named consecutively starting with subunit 4E and continuing through subunit 4M. In Unit 5, most of the areas that were considered, but not proposed in the 2003 proposed revision are contiguous with proposed subunits and the names of the existing proposed subunits are used to refer to these areas. Three areas in Unit 5 are not contiguous with proposed subunits and these areas are referred to as subunits 5G, 5H, and 5I in this revised final rule. As previously discussed, we removed large areas of proposed critical habitat in subunit 3E; for greater clarity we renamed the remaining critical habitat in this area 3E.1; 3E.2; 3E.3; and 3E.4.

Table 1.—Guide to Changes Between the October 23, 2000 Critical Habitat Designation, the April 22, 2003 Proposed Designation, and This Revised Final Designation

Unit

Area identification used in this rule (naming convention in recovery plan)*

Included in Appendix F or G 1998 recovery plan

San Diego fairy shrimp detected following the recovery plan

2000

Designation of critical habitat*

2003 Proposed

revision to the

critical habitat designation*

2007 Final revised critical habitat designation*

Unit 1 Orange County

The Irvine Ranch

X

Subunit 1A

Excluded under 4(b)(2).

Fairview Park

X

Unit 1

Subunit 1B

Excluded under 4(b)(2).

Newport Banning Ranch

X

Subunit 1C

Subunit 1C.

Chiquita Ridge

X

Subunit 1D

Excluded under 4(b)(2).

Radio Tower Road

X

Subunit 1E

Excluded under 4(b)(2).

San Clemente State Park

X

Unit 2 North coastal San Diego County

MCB Camp Pendleton (San Onofre State Lease Area)

X

Subunit 2A

Subunit 2A

Exempt under 4(a)(3).

MCB Camp Pendleton (Cockleburr Mesa)

X

Excluded under 4(b)(2)

Subunits 2B, 2C

Exempt under 4(a)(3).

MCB Camp Pendleton (O Neil)

X

Excluded under 4(b)(2)

Considered essential; not proposed

Exempt under 4(a)(3).

MCB Camp Pendleton (Las Pulgas, San Mateo, Stuart Mesa)

X

Excluded under 4(b)(2)

Considered essential; not proposed

Exempt under 4(a)(3).

MCB Camp Pendleton (Wire Mountain Housing)

X

Excluded under 4(b)(2)

Subunits 2D, 2E, 2F

Exempt under 4(a)(3).

Palomar Airport

X

Subunit 2C

Determined not to be essential

Poinsettia Lane Commuter Station (JJ1, JJ3)

X

Subunit 2B

Subunit 2G

Subunit 2G.

Unit 3 Inland San Diego County

San Marcos (L15-16)

X

X

Subunit 3B

Subunit 3A

Subunit 3A.

San Marcos (L14)

X

Subunit 3A

Subunit 3B

Determined not to be essential.

San Marcos (L1-6, 9-10)

X

X

Subunit 3C

Subunit 3C

Subunit 3C.

San Marcos (L 11-13, 19)

X

X

Subunit 3D

Subunit 3D

Subunit 3D.

San Marcos (L7)

X

Determined not to be essential

San Marcos (L8, 17-18, 20)

X

Ramona, grasslands

X

X

Subunit 3E

Subunit 3E

Subunit 3E.1.

Ramona, airport

X

Subunit 3E

Subunit 3E

Subunit 3E.2.

Ramona, downtown

X

Subunit 3E

Subunit 3E

Subunit 3E.3.

Ramona, downtown

X

Subunit 3F

Subunit 3E

Subunit 3E.3.

Ramona, high school

X

Subunit 3E

Subunit 3E

Subunit 3E.4.

Unit 4 Central coastal San Diego County

Del Mar Mesa (H18-23)

X

X

Subunit 4A

Subunit 4A

Subunit 4A/B.

Del Mar Mesa (H1-10, 13-15, Peñasquitos North/Del Mar Mesa)

X

X

Subunit 4A

Subunit 4B

Subunit 4A/B.

Murphy Canyon Navy Housing (G1-2 Tierrasanta South, G3)

X

Subunit 4C

Subunit 4C

Subunit 4C.

Chollas Heights Navy Housing

X

Subunit 4D

Subunit 4D

Subunit 4D.

Carmel Mountain (H (undescribed))

X

Considered essential; not proposed

Considered essential; not proposed

Subunits 4E, 4F.

Mira Mesa North (B)

X

Considered essential; not proposed

Tierra Alta (B5-6)

X

Subunit 4B

Considered essential; not proposed

Subunit 4G.

Lopez Ridge (B7-8)

X

Subunit 4B

Considered essential; not proposed

Subunit 4H.

Winterwood (C10-16)

X

Considered essential; not proposed

Considered essential; not proposed

Subunit 4I.

Fieldstone (C17-18)

Considered essential; not proposed

Determined not to be essential.

Mira Mesa Central (C26)

X

Maddox (Maddox Park)

Considered essential; not proposed

Determined not to be essential.

Carroll Canyon (D5-8)

X

Considered essential; not proposed

Considered essential; not proposed

Subunit 4J.

MCAS Miramar (A4; F1-27; I7; U1-13; U North; Z1-3, Z6; Z7; Z10; AA1-13; EE1-2; FF1-2; HH1-4 and RR1-2)

X

Not included under 3(5)(A)

Considered essential; not proposed

Exempt under 4(a)(3).

Miramar Industrial

X

Nobel Drive (X5)

X

X

New Century (BB2)

X

Considered essential; not proposed

SANDER and Magnatron (U15, SANDER)

X

Excluded under 4(b)(2)

Considered essential; not proposed

Subunit 4K.

Cubic (U19, Cubic Pools)

X

Excluded under 4(b)(2)

Considered essential; not proposed

Subunit 4L.

Montgomery Field (N1-4, 6)

X

X

Considered essential; not proposed

Considered essential; not proposed

Subunit 4M.

Unit 5 South San Diego County

Otay Mesa (J26)

X

X

Excluded under 4(b)(2)

Considered essential; not proposed

Subunit 5A.

Otay Mesa (J23-25)

X

X

Considered essential; not proposed

Considered essential; not proposed

Excluded under 4(b)(2).

Otay Mesa (J29-30)

X

Considered essential; not proposed

Considered essential; not proposed

Subunit 5B.

Otay Mesa (J22)

X

Subunit 5C

Subunit 5C

Subunit 5C.

Otay Mesa (J27-28)

X

X

Considered essential; not proposed

Otay Mesa

X

Considered essential; not proposed

Subunit 5D.

Naval Base Coronado, Naval Radar Receiving Facility

X

Considered essential; not proposed

Exempt under 4(a)(3).

Naval Base Coronado, Navy Outlying Landing Field (Tijuana Estuary)

X

Subunit 5D

Subunit 5E

Exempt under 4(a)(3).

Otay Mesa (J11-21)

X

Considered essential; not proposed

Considered essential; not proposed

Subunit 5F.

Otay Mesa (J2, 5, 7)

X

Considered essential; not proposed

Considered essential; not proposed

Subunit 5G.

Otay River Valley (K1)

X

Subunit 5B

Considered essential; not proposed

Determined not to be essential.

Otay River Valley (K2)

X

Determined not to be essential

Otay River Valley (K6)

X

Lower Otay Reservoir (K3-5)

X

Considered essential; not proposed

Subunit 5H.

Otay Lakes Road (K7)

X

Subunit 5A

Determined not to be essential

Marron Valley

X

Considered essential; not proposed

Subunit 5I.

* The unit and subunit areas listed in this table have changed in size and configuration, largely due to the various methods that were used to delineate critical habitat. The table is provided to make general comparisons between analogous areas, but not meant to define which individual vernal pools were or were not included in each specific unit or subunit.

Critical Habitat

Critical habitat is defined in section 3(5)(A) of the Act as:

(i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(I) Essential to the conservation of the species and

(II) Which may require special management considerations or protection; and

(ii) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) of the Act requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by the landowner. Where the landowner seeks or requests federal agency funding or authorization that may affect a listed species or critical habitat, the consultation requirements of Section 7 would apply, but even in the event of a destruction or adverse modification finding, the landowner's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

For inclusion in a critical habitat designation, habitat within the geographical area occupied by the species at the time it was listed must contain features that are essential to the conservation of the species. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).

Occupied habitat that contains the features essential to the conservation of the species meets the definition of critical habitat only if those features may require special management considerations or protection.

Under the Act, we can designate areas outside of the geographical area occupied by the species at the time of listing only when we determine that the best available scientific data demonstrate that the designation of such areas is essential to the conservation needs of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the

Federal Register

on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and the associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require Service biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that we may eventually determine, based on scientific data not now available to the Service, are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species.

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

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and the regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical and biological features that are essential to the conservation of the species to be the primary constituent elements (PCEs) laid out in the appropriate quantity and spatial arrangement for conservation of the species. These include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

We derive the specific primary constituent elements required for the San Diego fairy shrimp from the biological needs of the San Diego fairy shrimp as described in the proposed critical habitat rule published in the

Federal Register

on April 22, 2003 (68 FR 19888), and below.

Space for Individual and Population Growth, and for Normal Behavior

San Diego fairy shrimp require vernal pool habitat to grow and reproduce. Their life cycle requires periods of inundation as well as dry periods (Ripley

et al.

2004, pp. 221-223). The San Diego fairy shrimp is most often found in vernal pools or vernal pool complexes that have the appropriate temperature, water chemistry, depth, and duration. More specifically, San Diego fairy shrimp are found in vernal and ephemeral wetlands that range in ponding duration from 7 days to 2 months and that range in depth from less than 2 inches (in) (5 centimeters (cm)) to over 12 in (30 cm) (Simovich and Fugate 1992, p. 111; Hathaway and Simovich 1996, p. 670). For the appropriate conditions to occur, the following factors are necessary: (1) Associated hydrology that provides water to fill the pools; and (2) any soil type with a claypan or hardpan component that forms an impermeable layer and provides space for individual and population growth and normal behavior. Vernal pool hydrology (i.e., seasonal filling and drying of vernal pools) is an essential feature that governs the life cycle of the San Diego fairy shrimp; proper timing, duration, and depth of these hydrological processes is necessary for cyst hatching and successful reproduction of San Diego fairy shrimp.

Vernal pools generally occur in complexes. Vernal pool complexes are defined by two or more vernal pools in the context of a larger vernal pool watershed. Adjacent upland habitat also contributes to the overall functions important to the vernal pool ecosystem. Protection of the upland habitat between vernal pools within the vernal pool watershed is important for maintaining the hydroperiods of adequate length to support the entire reproductive cycle for San Diego fairy shrimp and to buffer the vernal pools from edge effects. During periods of high rainfall, adult fairy shrimp and cysts (dormant eggs) may be transported between vernal pools in a complex as individual pools become connected by over surface flows of water. To maintain high-quality vernal pool ecosystems, all components including the vernal pool basin, the vernal pool watershed, and the surrounding upland habitat must be available and functional (Hanes and Stromberg 1998, p. 38). Many of the remaining pools that support the San Diego fairy shrimp are no longer in a pristine or undisturbed state. Yet these pools, and the associated upland habitat, continue to function and provide space for individual and population growth and for normal behavior.

Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements

Temperature, water chemistry, and length of time vernal pools are inundated with water are factors that play an important role in the distribution and temporal appearance of the San Diego fairy shrimp (Gonzalez

et al.

1996, pp. 315-316; Hathway and Simovich 1996, p. 669). San Diego fairy shrimp hatch and reproduce in water at temperatures that range from 41 to 68 degrees Fahrenheit (F) (5 to 20 degrees Celsius (C)), and do not hatch at temperature greater than 77 degrees F (25 degrees C) (Hathway and Simovich 1996, pp. 674-675). This limitation keeps San Diego fairy shrimp from hatching during the summer months if the vernal pools were to fill with water. Also, San Diego fairy shrimp do not survive well in temperatures below 41 degrees F (5 degrees C) (Hathaway and Simovich 1996, pp. 674-675). San Diego fairy shrimp typically inhabit dilute, freshwater pools with low levels of total dissolved solids (low ion levels (Na

+

concentrations below 60 millimoles per liter (mmol/l)), low alkalinity levels (lower than 80 to 1,000 milligrams per liter (mg/l)), and that are characterized by a range of pH levels from neutral to alkaline (8.0 to 10.3) (Gonzalez

et al.

1996, pp. 319-322). The San Diego fairy shrimp is not known to successfully mature and reproduce outside these limits in laboratory conditions; therefore, proper temperature, water chemistry, and length of time vernal pools are inundated may be necessary for survival and successful reproduction.

San Diego fairy shrimp have been shown to tightly regulate their internal body chemistry in pool environments that have low salinity and low alkalinity (Gonzalez

et al.

1996, pp. 319-322). In a laboratory experiment, San Diego fairy shrimp were unable to maintain their body chemistry balance in conditions with sodium ion (Na+) concentrations greater than 60 mmol/l but less than half survived when concentrations exceeded 100 mmol/l (Gonzalez

et al.

1996, pp. 319-322). This limited tolerance for saline conditions is one of the factors that restrict the San Diego fairy shrimp to its current range. San Diego fairy shrimp are filter feeders and their diet consists mostly of algae, bacteria, and other microorganisms (Parsick 2002, pp. 37-41, 65-70). In a natural vernal pool setting these food items are readily available.

Sites for Breeding, Reproduction and Rearing of Offspring

Adult San Diego fairy shrimp are usually observed from January to March. In years with early or late rainfall, the hatching period may be extended. When vernal pools fill with water the cysts hatch and juvenile fairy shrimp quickly develop into adults. San Diego fairy shrimp can reach sexually maturity and begin mating in 7 to 10 days from the time the vernal pool fills with water. When the females' eggs are fertilized they begin to develop; however, the development of the fertilized eggs stops at an early stage and the eggs become dormant. The dormant eggs are referred to as “cysts” or “resting eggs” and each egg is smaller than the tip of a pencil and contains a dormant fairy shrimp embryo encased in a hard outer shell. Cysts drop to the bottom of the vernal pool and then become part of the cyst bank in the soil of the vernal pool. In the absence of more rainfall the vernal pool dries and any remaining adult San Diego fairy shrimp die as the water evaporates. The cysts, however, are capable of withstanding temperature extremes and prolonged drying (i.e., drought conditions lasting several years). During subsequent filling events these cysts will emerge from dormancy and hatch. Researchers have found that only a small portion of the cysts in the cyst bank hatch each time the vernal pool fills. Simovich and Hathaway (1997, pp. 40-43) referred to this as “bet-hedging” and concluded that it allows the San Diego fairy shrimp to survive in an unpredictable environment. Many times when a vernal pool fills, the pool will evaporate before San Diego fairy shrimp are able to reproduce (Ripley

et al.

2004, pp. 221-223). The “bet-hedging” insures that some cysts will hatch when the vernal pools hold water for a period long enough for the San Diego fairy shrimp to complete its entire life cycle. Thus, reproductive output of small aquatic crustaceans living in variable environments is spread over several seasons.

Primary Constituent Elements for the San Diego Fairy Shrimp

Within the geographical area occupied by the San Diego fairy shrimp, we must identify the PCEs that may require special management considerations or protection. All areas designated as critical habitat for San Diego fairy shrimp are occupied, within the species' geographic range, and contain sufficient PCEs to support at

least one life history function. In the case of this designation, all of the units contain all of the PCEs. The data provided in these PCEs have been generalized from existing scientific data. There may be cases where San Diego fairy shrimp persist in conditions outside the ranges expressed in these PCEs. It is also important to note that the variable amounts and timing of precipitation in southern California do not result in favorable conditions for San Diego fairy shrimp in every year.

Based on our current knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life history functions of the species, we have determined that the San Diego fairy shrimp's PCEs are:

(1) Vernal pools with shallow to moderate depths (2 in (5 cm) to 12 in (30 cm)) that hold water for sufficient lengths of time (7 to 60 days) necessary for incubation, maturation, and reproduction of the San Diego fairy shrimp, in all but the driest years;

(2) Topographic features characterized by mounds and swales and depressions within a matrix of surrounding uplands that result in complexes of continuously, or intermittently, flowing surface water in the swales connecting the pools described in PCE 1, providing for dispersal and promoting hydroperiods of adequate length in the pools (i.e., the vernal pool watershed); and

(3) Flat to gently sloping topography, and any soil type with a clay component and/or an impermeable surface or subsurface layer known to support vernal pool habitat (including Carlsbad, Chesterton, Diablo, Huerhuero, Linne, Olivenhain, Placentia, Redding, and Stockpen soils).

We have designed this revised final designation for the conservation of PCEs necessary to support the life history functions and the areas containing those PCEs. The matrix of vernal pools/ephemeral wetlands, upland habitats, and underlying soil substrates in combination create ecologically functional units. These features and the lands that they represent are essential to the conservation of the San Diego fairy shrimp. All lands designated as critical habitat contain all of the features essential to the conservation of the San Diego fairy shrimp (i.e., PCEs). As stated in the Summary of Changes section of this rule, we believe that a designation limited to the extant range is adequate to conserve the San Diego fairy shrimp.

We designate units based on sufficient PCEs being present to support at least one of the species' life history functions. In the case of this designation, all of the units contain all of the PCEs.

Special Management Considerations or Protection

When designating critical habitat under the first prong of the statutory definition of critical habitat, as here, we assess whether areas within the geographical area occupied by the species contain features that are essential to the conservation of the species and that may require special management considerations or protection. In this section, we describe special management considerations and protection required to conserve the PCEs for the San Diego fairy shrimp.

The most pressing threat to critical habitat for the San Diego fairy shrimp is the loss of habitat. Vernal pools supporting the San Diego fairy shrimp are found on level or gently sloping land within 40 mi (64 km) of the coast. Virtually all of this land is sought after for commercial and residential development. Soils supporting vernal pools have been almost completely lost to development (Bauder and McMillan 1998, p. 56). Development of an area can directly impact all the PCEs for this species if the vernal pool basins are lost during the development process. The vernal pool basin (PCE 1) can also be indirectly impacted by development if the vernal pool watershed (PCE 2) is impacted during the development process. Development can also indirectly impact PCE 1 and PCE 2 if the vernal pool soils or topography is altered (PCE 3). Specifically, the following subunits include land that is not protected from development through ownership by a conservation organization or by a conservation easement or other similar legal mechanisms: 1C; 3A; 3C; 3E.1; 3E.2; 3E.3; 3E.4; 4A/B; 4H; 4J-4M; 5A-5D; 5F; and 5G. These lands require special management considerations or protections from negative impacts associated with development.

Once a vernal pool complex has been protected from loss from habitat conversion or development, it is still necessary to ensure that the habitat is not degraded as a result of altered hydrology, contamination, nonnative species invasions, or other incompatible land uses (e.g., off-road vehicle use, mountain bike use, illegal dumping). Special management considerations are necessary to ensure that vernal pool habitat protected for the San Diego fairy shrimp retains the physical and biological features essential to the conservation of the San Diego fairy shrimp. As discussed below, all of the subunits designated as critical habitat require some form of special management consideration or protection of their constituent PCEs.

Special management may be necessary to prevent and reduce incursion of nonnative invasive plant species that alter PCE 1. Nonnative plant species can impact the duration of ponding in a vernal pool basin. Nonnative plant species can also impact the vernal pool watershed (PCE 2) by reducing the inundation period through an over-abundance of vegetation within the watershed (Marty 2005, p. 1630). Special management actions can be taken to reduce the negative effects of such invasions. Removal of weed species by hand, increased planting of vernal pool species, mowing, restoration of native species in the upland areas, and prescribed burns may be potential tools to manage this threat. Nonnative species threaten the following subunits: 1C; 2G; 3A; 3C; 3D; 3E.1; 3E.2; 3E.3; 3E.4; 4I-4M; 5A-5D; 5F; 5G; and 5I.

Special management considerations or protections may be necessary to protect and restore vernal pool hydrology (PCE 1 and PCE 2). Alteration of natural hydrology directly threatens San Diego fairy shrimp, and the invasion of nonnative species may be facilitated by alterations in the natural vernal pool hydrology. Runoff from adjacent developments should be monitored to ensure that a pool's hydrology has not been altered, either through changes in ponding duration or changes to water temperature or chemistry. Discing, grading and digging in ways that impact the topography and soils near vernal pool complexes (PCE 3) can also indirectly impact the hydrology (PCE 1 and PCE 2). Altered hydrology threatens the following subunits: 1C; 2G; 3A; 3C; 3D; 3E.1; 3E.2; 3E.3; 3E.4; 4A/B; 4I-4M; 5A-5D; 5F; 5G and 5I.

Special management considerations or protection may be necessary to reduce degradation of vernal pools. Management actions such as fencing, trail building, and sign posting can help to reduce human activities that threaten San Diego fairy shrimp habitat. Vehicular traffic can impact to adult and juvenile San Diego fairy shrimp, and may crush cysts during the wet season (Hathaway

et al.

1996, p. 451). Motorized and non-motorized off-road vehicle use, illegal trash dumping, and trampling can: (1) Affect the ponding duration in the vernal pool by increasing or decreasing the amount of water in the basin (PCE 1) or move soils and alter the topography, and (2) divert water or compact the soil such that the water does not saturate the soils (PCE 2). Degradation associated with human

activities threatens the following subunits: 1C; 2G; 3A; 3C; 3D; 3E.1; 3E.2; 3E.3; 3E.4; 4A/B; 4C-4F; 4I-4M; 5A-5I.

The control of invasive nonnative species, the maintenance and enhancement of natural vernal pool hydrology, and the control of incompatible and often illegal activities, such as off-road vehicle use and trash dumping, will help to ensure the preservation of vernal pool complexes. Ongoing monitoring of the threats to preserved vernal pool complexes and the San Diego fairy shrimp in each vernal pool complex is necessary for the long-term conservation of the San Diego fairy shrimp.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(1)(A) of the Act, we use the best scientific and commercial data available in determining the specific areas within the geographical area occupied by the species at listing that contain the features essential to the conservation of species which may require special management considerations or protection, as well as when determining if any specific areas outside the geographical area occupied by the species at listing are essential to the conservation of the species. We only designate areas outside the geographical area occupied at the time of listing by a species when a designation limited to its present range would be inadequate to ensure the conservation of the species (50 CFR 424.12(e)).

We based this final revision to the critical habitat designation on the 1998 recovery plan, which calls for the preservation and enhancement of existing vernal pools that are within the extant range of the San Diego fairy shrimp (Service 1998a). We used all scientific and commercial data available to identify existing vernal pool complexes that contain San Diego fairy shrimp. Occupancy status was determined using occurrence data from the CNDDB (2001, 2004, 2007), the City of San Diego's Vernal Pool Inventory (2003), the Ramona Vernal Pool Conservation Study (TAIC and EDAW 2005), Appendix E of the Recovery Plan for Vernal Pools of Southern California (Service 1998a, pp. E1-E16), and 10(A)(1)(a) reports submitted to the Service for San Diego fairy shrimp. Since the publication of the recovery plan we have become aware of several more vernal pool complexes that are occupied by the San Diego fairy shrimp. In addition to vernal pool complexes identified in appendices F and G, we have included the following areas in this designation that were not identified as essential to the San Diego fairy shrimp in the recovery plan or the 2000 designation of critical habitat: Subunits 1A; 1B; 1C; 1D; 5D; 5H; and 5I (see Table 1).

We consider all of the vernal pool complexes designated as critical habitat to have been occupied at the time of listing and to be currently occupied by the San Diego fairy shrimp. Genetic studies indicate that there is low rate of dispersal for this species, meaning that it is infrequent for San Diego fairy shrimp to move from one area to another. The San Diego fairy shrimp was first described in 1993, and there are only a limited number of people who have been trained to survey for this species (Fugate 1993, pp. 296-304). As a result, “new” populations of this species have been identified since listing in 1997, not because the San Diego fairy shrimp recently appeared there, but rather San Diego fairy shrimp were discovered at new locations the first time focused surveys were conducted at those locations. For these reasons we believe that all areas designated as critical habitat were occupied by San Diego fairy shrimp at the time of listing. As stated above, we believe that a designation encompassing habitat within the extant range of the San Diego fairy shrimp is adequate to conserve this species. After we delineated all of the vernal pool complexes occupied by San Diego fairy shrimp, we examined the complexes to delineate the watersheds associated with the complexes and determined the extent of the PCEs in each complex and watershed. Areas determined to contain the PCEs were based on the boundaries of vernal pool complexes delineated in Beauchamp and Cass 1979 (pp. 12-13) and Bauder 1986 (Appendix 4). However, these boundaries were drawn to group and classify vernal pool complexes and did not always capture the entire watershed area needed to support the vernal pool complex. To better capture the watershed areas in the critical habitat we included areas of similar topography and soil type (Service GIS database; soils described by Bowman 1973, pp. 7-17).

Finally, we removed vernal pool complexes that lack any evidence to indicate historical or current occupancy by San Diego fairy shrimp or that are unlikely to contribute to the conservation of the species due to location or other limitations. We removed subunit 3B in San Marco; the Fieldstone vernal pools; and the K1, K2 and K6 vernal pool complexes (see Summary of Changes From Previously Designated Critical Habitat and 2003 Proposed Rule for additional details on these areas).

When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas such as lands containing buildings, paved areas, and other structures that lack PCEs for San Diego fairy shrimp. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed areas. Any such structures and the land under them inadvertently left inside critical habitat boundaries shown on the maps of this final rule are excluded by text in the final rule and are not designated as critical habitat. Therefore, Federal actions involving these areas would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the primary constituent elements in the adjacent critical habitat.

Revisions to the Critical Habitat Designation

We are designating 3,082 ac (1,248 ha) of land as critical habitat for San Diego fairy shrimp in 5 units with a total of 29 subunits. Table 2 outlines the areas included (definitional areas) and the areas excluded and exempt from this revised final critical habitat. Subunits designated as critical habitat are discussed in detail below in the Unit Description section; exempt or excluded subunits are further discussed in the Exemptions and Exclusions section below. The five units in this final revision to critical habitat are defined by the Management Areas described in the recovery plan (Service 1998a, pp. 35-44). The critical habitat areas described below constitute our best assessment of the areas that are within the geographical area occupied by the San Diego fairy shrimp at the time of listing and that contain the primary constituent elements essential to the conservation of the San Diego fairy shrimp that may require special management considerations or protection.

Table 2.—Size of Areas Containing Features Essential to the Conservation of the San Diego Fairy Shrimp (Definitional Area), the Area Excluded or Exempt From the Final Critical Habitat Designation (Excluded and Exempt Area), and the Total Area Designated for Each Subunit of Critical Habitat (Total Designated). Numbers Have Been Rounded to the Nearest Whole Digit and May Overestimate Area Due to Rounding

Unit/subunit

Geographic area

Definitional area

Excluded and exempt area

Total designated

Unit 1

Orange County

1A

North Ranch Policy Plan Area

4 ac (2 ha)

4 ac (2 ha)

0 ac (0 ha).

1B

Costa Mesa Fairview Park

43 ac (17 ha)

43 ac (17 ha)

0 ac (0 ha).

1C

Newport-Banning Ranch

15 ac (6 ha)

0 ac (0 ha)

15 ac (6 ha).

1D

Chiquita Ridge

56 ac (23 ha)

56 ac (23 ha)

0 ac (0 ha).

1E

Radio Tower Road

84 ac (34 ha)

84 ac (34 ha)

0 ac (0 ha).

Subtotal for Unit 1

202 ac (82 ha)

187 ac (76 ha)

15 ac (6 ha).

Unit 2

North Coastal Mesa, San Diego County

2A

MCB Camp Pendleton, San Onofre State Lease Area

17 ac (9 ha)

17 ac (9 ha)

0 ac (0 ha).

2B

MCB Camp Pendleton, Cockleburr Mesa

43 ac (17 ha)

43 ac (17 ha)

0 ac (0 ha).

2C

MCB Camp Pendleton, Cockleburr Mesa

132 ac (53 ha)

132 ac (53 ha)

0 ac (0 ha).

2D

MCB Camp Pendleton, Wire Mountain Housing

155 ac (63 ha)

155 ac (63 ha)

0 ac (0 ha).

2E

MCB Camp Pendleton, Wire Mountain Housing

18 ac (7 ha)

18 ac (7 ha)

0 ac (0 ha).

2F

MCB Camp Pendleton, Wire Mountain Housing

203 ac (82 ha)

203 ac (82 ha)

0 ac (0 ha).

2G

Poinsettia Lane Commuter Station

6 ac (3 ha)

0 ac (0 ha)

6 ac (3 ha).

MCB Camp Pendleton, training areas

7182 ac (2906 ha)

7182 ac (2906 ha)

0 ac (0 ha).

Subtotal for Unit 2

7756 ac (3140 ha)

7750 ac (3137 ha)

6 ac (3 ha).

Unit 3

Inland Valley, San Diego County

3A

San Marcos, northeast unit

17 ac (7 ha)

0 ac (0 ha)

17 ac (7 ha).

3C

San Marcos, southwest unit

63 ac (25 ha)

0 ac (0 ha)

63 ac (25 ha).

3D

San Marcos, southeast unit

5 ac (2 ha)

0 ac (0 ha)

5 ac (2 ha).

3E.1

Ramona, grasslands

382 ac (154 ha)

0 ac (0 ha)

382 ac (154 ha).

3E.2

Ramona, airport

191 ac (77 ha)

0 ac (0 ha)

191 ac (77 ha).

3E.3

Ramona, downtown

27 ac (11 ha)

0 ac (0 ha)

27 ac (11 ha).

3E.4

Ramona, high school

40 ac (16 ha)

0 ac (0 ha)

40 ac (16 ha).

Subtotal for Unit 3

725 ac (292 ha)*

0 ac (0 ha)

725 ac (292 ha).*

Unit 4

Central Coastal Mesa, San Diego County

4A/B

Del Mar Mesa

252 ac (102 ha)

0 ac (0 ha)

252 ac (102 ha).

4C

Murphy Canyon Navy Housing

41 ac (17 ha)

0 ac (0 ha)

41 ac (17 ha).

4D

Chollas Heights Navy Housing

16 ac (7 ha)

0 ac (0 ha)

16 ac (7 ha).

4E

Carmel Mountain, west

32 ac (13 ha)

0 ac (0 ha)

32 ac (13 ha).

4F

Carmel Mountain, east

4 ac (2 ha)

0 ac (0 ha)

4 ac (2 ha).

4G

Tierra Alta

5 ac (2 ha)

0 ac (0 ha)

5 ac (2 ha).

4H

Lopez Ridge

11 ac (4 ha)

0 ac (0 ha)

11 ac (4 ha).

4I

Winterwood

17 ac (7 ha)

0 ac (0 ha)

17 ac (7 ha).

4J

Carroll Canyon

14 ac (6 ha)

0 ac (0 ha)

14 ac (6 ha).

4K

Sander and Magnatron

56 ac (23 ha)

0 ac (0 ha)

56 ac (23 ha).

4L

Cubic

7 ac (3 ha)

0 ac (0 ha)

7 ac (3 ha).

4M

Montgomery Field

96 ac (39 ha)

0 ac (0 ha)

96 ac (39 ha).

MCAS Miramar

1703 ac (689 ha)

1703 ac (689 ha)

0 ac (0 ha).

Subtotal for Unit 4

2254 ac (914 ha)

1703 ac (689 ha)

551 ac (225 ha).

Unit 5

Southern Coastal Mesa, San Diego County

5A

Otay Mesa, northeast unit

234 ac (95 ha)

196 ac (79 ha)

38 ac (16 ha).

5B

Otay Mesa, north unit

327 ac (132 ha)

23 ac (9 ha)

304 ac (123 ha).

5C

Otay Mesa, east unit

75 ac (30 ha)

0 ac (0 ha)

75 ac (30 ha).

5D

Otay Mesa, southeast unit

391 ac (158 ha)

0 ac (0 ha)

391 ac (158 ha).

5E

Naval Outlying Landing Field (NOLF)

8 ac (3 ha)

8 ac (3 ha)

0 ac (0 ha).

5F

Otay Mesa, southwest unit

650 ac (263 ha)

29 ac (12 ha)

621 ac (251 ha).

5G

Otay Mesa, northwest unit

132 ac (53 ha)

0 ac (0 ha)

132 ac (53 ha).

5H

Lower Otay Reservoir

205 ac (83 ha)

5 ac (2 ha)

200 ac (81 ha).

5I

Marron Valley

24 ac (10 ha)

0 ac (0 ha)

24 ac (10 ha).

Naval Radar Receiving Facility (NRRF)

161 ac (65 ha)

161 ac (61 ha)

0 ac (0 ha).

Subtotal for Unit 5

2,207 ac (892 ha)*

422 ac (170 ha)*

1,785 ac (722 ha).*

Total

13,144 ac (5,320 ha)*

10,062 ac (4,072 ha)*

3,082 ac (1,248 ha).*

*Figures in table may not sum due to rounding.

The approximate area encompassed within each critical habitat subunit by landownership is shown in Table 3.

TABLE 3.—Critical Habitat Units and Subunits for the San Diego Fairy Shrimp. Numbers Have Been Rounded to the Nearest Whole Digit and May Overestimate Area Due to Rounding

Unit/subunit

Geographic area

Owner

Total

designated

Unit 1

Orange County

1C

Newport-Banning Ranch

Private

15 ac (6 ha).

Unit 2

North Coastal Mesa, San Diego County

2G

Poinsettia Lane Commuter Station

Private

2 ac (1 ha).

North County Transit District (NCTD)

4 ac (2 ha).

Unit 3

Inland Valley, San Diego County

3A

San Marcos, northeast unit

Private

16 ac (6 ha).

Other Special Districts

1 ac (<1 ha).

3C

San Marcos, southwest unit

City of San Marcos

11 ac (4 ha).

Water District

4 ac (2 ha).

Private

48 ac (19 ha).

3D

San Marcos, southeast unit

Private

5 ac (2 ha).

3E.1

Ramona, grasslands

Water District

1 ac (<1 ha).

Private

381 ac (153 ha).

3E.2

Ramona, airport

County of San Diego

67 ac (27 ha).

Private

124 ac (50 ha).

3E.3

Ramona, downtown

Private

26 ac (10 ha).

County of San Diego

1 ac (<1 ha).

3E.4

Ramona, high school

Ramona Unified School District

35 ac (14 ha).

Private

5 ac (2 ha).

Unit 4

Central Coastal Mesa, San Diego County

4A/B

Del Mar Mesa

U.S. Fish and Wildlife Service

41 ac (16 ha).

State of California

56 ac (23 ha).

County of San Diego

5 ac (2 ha).

City of San Diego

51 ac (21 ha).

Private

99 ac (40 ha).

4C

Murphy Canyon Navy Housing

Department of Defense

40 ac (16 ha).

City of San Diego

1 ac (<1 ha).

4D

Chollas Heights Navy Housing

Department of Defense

16 ac (7 ha).

4E

Carmel Mountain, west

City of San Diego

31 ac (12 ha).

Private

1 ac (<1 ha).

4F

Carmel Mountain, east

City of San Diego

4 ac (2 ha).

4G

Tierra Alta

City of San Diego

2 ac (1 ha).

Private

3 ac (1 ha).

4H

Lopez Ridge

City of San Diego

7 ac (3 ha).

Private

4 ac (2 ha).

4I

Winterwood

City of San Diego

17 ac (7 ha).

4J

Carroll Canyon

City of San Diego

13 ac (5 ha).

Private

1 ac (<1 ha).

4K

SANDER and Magnatron

City of San Diego

55 ac (22 ha).

Private

1 ac (1 ha).

4L

Cubic

Private

7 ac (3 ha).

4M

Montgomery Field

City of San Diego

96 ac (39 ha).

Unit 5

Southern Coastal Mesa, San Diego County

5A

Otay Mesa, northeast unit

State of California

16 ac (7 ha).

County of San Diego

8 ac (3 ha).

Water District

1 ac (<1 ha).

Private

13 ac (5 ha).

5B

Otay Mesa, north unit

Private

304 ac (123 ha).

5C

Otay Mesa, east unit

Private

75 ac (30 ha).

5D

Otay Mesa, southeast unit

Private

391 ac (158 ha).

5F

Otay Mesa, southwest unit

U.S. Government

11 ac (4 ha).

City of San Diego

73 ac (30 ha).

Private

537 ac (217 ha).

5G

Otay Mesa, northwest unit

City of San Diego

19 ac (7 ha).

Private

113 ac (46 ha).

5H

Lower Otay Reservoir

City of San Diego

200 ac (81 ha).

5I

Marron Valley

City of San Diego

24 ac (10 ha)

Total

3,082 ac (1,248 ha)*.

*Figures in table may not sum due to rounding.

Unit Descriptions

We present brief descriptions of all units and reasons why they meet the definition of critical habitat for the San Diego fairy shrimp below.

Unit 1: Orange County (15 ac (6 ha))

Unit 1 is located in Orange County, California. The area was occupied at the time of listing and contains the PCEs essential to the conservation of the San Diego fairy shrimp that may require special management considerations or protection. The majority of the vernal pools in Orange County were eliminated prior to 1950 and only a small number of vernal pool complexes remain (Riefner and Pryor 1996, p. 300). This unit represents the northern extent of the species' distribution in southern California and represents the historical distribution of coastal terrace vernal pools in this area. The vernal pools in Orange County are the only pools that form on Alo clay, Calleguas clay loam, Cieneba sandy loam, and Soper gravelly loam that support the San Diego fairy shrimp. This unit contains vernal pools that support San Diego fairy shrimp populations in the “Group A” genetic clade (Bohonak 2007, p. 1). For these reasons this unit is essential for recovery of the San Diego fairy shrimp. For more information about Unit 1 please see the proposed rule (68 FR 19888; April 22, 2003).

Subunit 1A: The Irvine Ranch (Formerly North Ranch Policy Plan Area)

We are excluding Subunit 1A from critical habitat because this area is part of The Irvine Ranch. We have determined that the benefits of excluding this subunit from the final designation outweigh the benefits of including it (see Exemptions and Exclusions section below for a detailed discussion of this exclusion).

Subunit 1B: Fairview Park

We are excluding Subunit 1B from critical habitat because this area is part of the Fairview Park Master Plan. We have determined that the benefits of excluding this subunit from the final designation outweigh the benefits of including it (see Exemptions and Exclusions section below for a detailed discussion of this exclusion).

Subunit 1C: Newport-Banning Ranch

We are designating subunit 1C as critical habitat for the San Diego fairy shrimp. Subunit 1C consists of 15 ac (6 ha) of habitat occupied by the species at the time of listing and the species continues to occur within this subunit. This subunit contains all of the features essential to the conservation of the species. It is located south of the Santa Ana River, 2 mi (3 km) inland from the coast. Subunit 1C consists of privately owned land.

The vernal pool complex at Newport-Banning Ranch is one of only five known vernal pool complexes containing the San Diego fairy shrimp in Orange County. This vernal pool complex and the vernal pool complex at Fairview Park (subunit 1B) represent the only remaining examples of coastal vernal pools in Orange County. Subunit 1C is closed to recreational use; however, this area has been degraded by past activities and may face future impacts from the development of this site and/or its watershed. The PCEs in this critical habitat subunit may require special management considerations or protection to address threats from development activities and nonnative species that may negatively impact the San Diego fairy shrimp, its PCEs, and its habitat.

Subunit 1D: Chiquita Ridge

We are excluding Subunit 1D from critical habitat because this area is part of the Southern Subregion NCCP/HCP. We have determined that the benefits of excluding this subunit from the final designation outweigh the benefits of including it (see Exemptions and Exclusions section below for a detailed discussion of this exclusion).

Subunit 1E: Radio Tower Road

We are excluding Subunit 1E from critical habitat because this area is part of the Southern Subregion NCCP/HCP. We have determined that the benefits of excluding this subunit from the final designation outweigh the benefits of

including it (see Exemptions and Exclusions section below for a detailed discussion of this exclusion).

Unit 2: San Diego, North Coastal Mesa (6 ac (3 ha))

Unit 2 is located in San Diego County, California. The area was occupied at the time of listing and contains the features we have identified as essential to the conservation of the San Diego fairy shrimp that may require special management considerations or protection. The vernal pool complexes in this unit occur on Carlsbad gravelly loam sand, Diablo clay, and Salinas clay. As a result of coastal development, most vernal pools supporting the San Diego fairy shrimp on coastal terraces in San Diego County have been lost. Unit 2 represents the largest collection of vernal pools on coastal terraces that remain in San Diego County. Given the rarity of the San Diego fairy shrimp and the limited amount of remaining vernal pool habitat, this unit is essential to the conservation of this species because of the need to conserve vernal pools throughout the range of the species. This unit contains vernal pools that support San Diego fairy shrimp populations in the “Group B” genetic clade (Bohonak 2007, p. 1). This unit is also essential due to its role in maintaining the genetic diversity and population stability of the San Diego fairy shrimp. For more information about Unit 2 please see the proposed rule (68 FR 19888; April 22, 2003).

We have determined that MCB Camp Pendleton's INRMP provides a benefit to the San Diego fairy shrimp and therefore MCB Camp Pendleton, including the proposed subunits 2A-2F, is exempt from the designation of critical habitat pursuant to section 4(a)(3) of the Act (see Summary of Changes From Previously Designated Critical Habitat and 2003 Proposed Rule and Exemptions and Exclusions sections for more information on this exemption).

Subunit 2G: Poinsettia Lane Commuter Station

We are designating subunit 2G as critical habitat for the San Diego fairy shrimp. Subunit 2G consists of 6 ac (3 ha) of habitat occupied by the species at the time of listing and the species continues to occur within this subunit. This subunit contains all of the features essential to the conservation of the species. It is located in Carlsbad, California, north of Poinsettia Lane, 0.25 mi (0.4 km) inland from the coast. Subunit 2G consists of 4 ac (2 ha) of public land owned by the North County Transit District (NCTD) and 2 ac (1 ha) of private land.

Lands in this subunit owned by NCTD are in a conservation easement managed by CDFG. However, at this time additional management measures, such as monitoring of water quality and the restoration of native vegetation around the vernal pools, may be needed to conserve the PCEs for San Diego fairy shrimp. The PCEs in this critical habitat subunit may also require special management considerations or protection to address threats from altered hydrology and nonnative species that may negatively impact the San Diego fairy shrimp and its habitat.

Unit 3: San Diego, Inland Valley (725 ac (292 ha))

Unit 3 contains vernal pool complexes within the jurisdiction of the City of San Marcos and the community of Ramona. The area was occupied at the time of listing and contains the features essential to the conservation of the San Diego fairy shrimp that may require special management considerations or protection for the San Diego fairy shrimp. The vernal pool complexes in unit 3 are associated with alluvial or volcanic type soils and include the only vernal pool complexes known to occur on Placentia soils (Service GIS database; soils described by Bowman 1973, pp. 68-69). The vernal pool complexes in San Marcos are associated with a unique plant association of multiple species of

Brodiaea

(Armstrong 2007, pp. 11-16). The recovery plan specifically identifies these vernal pools as essential for the recovery of the San Diego fairy shrimp. This unit includes vernal pools within the easternmost edge of the geographical distribution of the species and at the highest elevation where this species occurs. This unit contains vernal pools that support San Diego fairy shrimp populations in the “Group B” genetic clade (Bohonak 2004, pp. 3-9). Conservation of vernal pools in this unit will help maintain the diversity of vernal pool habitats and their unique geological substrates, and will retain the genetic diversity of these geographically distinct populations. For more information about Unit 3 please see the proposed rule (68 FR 19888; April 22, 2003).

Subunit 3A: San Marcos: Northeast

We are designating subunit 3A as critical habitat for the San Diego fairy shrimp. Subunit 3A consists of 17 ac (7 ha) of habitat occupied by the species at the time of listing and the species continues to occur within this subunit. This subunit contains all of the features essential to the conservation of the species. Subunit 3A is located north of State Route 78, just south of Palomar Community College, 8 mi (13 km) inland from the coast. Subunit 3A consists of 16 ac (6 ha) of privately owned land and of 1 ac (<1 ha) of land owned by a Special District.

This site has been proposed for development, and it is likely that the vernal pools within this subunit will be directly or indirectly impacted by the development. The PCEs within this critical habitat subunit may require special management considerations or protection to address threats from development, off-road vehicles, and nonnative species that may negatively impact the San Diego fairy shrimp and its habitat.

Subunit 3C: San Marcos: Southwest

We are designating subunit 3C as critical habitat for the San Diego fairy shrimp. Subunit 3C consists of 63 ac (25 ha) of habitat occupied by the species at the time of listing and the species continues to occur within this subunit. This subunit contains all of the features essential to the conservation of the species. Subunit 3C is located south of State Route 78, to the north of San Marcos Boulevard between South Pacific Street and South Las Posas Road, 8 mi (13 km) inland from the coast. Subunit 3C consists of 11 ac (4 ha) of land owned by the City of San Marcos, 4 ac (2 ha) of land owned by the Water District, and 48 ac (19 ha) of privately owned land.

This site is currently not fenced and the vernal pool habitat in this subunit is subject to continuing impacts from off-road vehicles and illegal dumping. The PCEs in this critical habitat subunit may require special management considerations or protection to address threats from development, off-road vehicles, and nonnative species that may negatively impact the San Diego fairy shrimp and its habitat.

Subunit 3D: San Marcos: Southeast

We are designating subunit 3D as critical habitat for the San Diego fairy shrimp. Subunit 3D consists of 5 ac (2 ha) of habitat occupied by the species at the time of listing and the species continues to occur within this subunit. This subunit contains all of the features essential to the conservation of the species. Subunit 3D is located south of State Route 78, east of Linda Vista Drive and west of Bent Avenue, 9 mi (14 km) inland from the coast. Subunit 3C is privately owned. The PCEs in this critical habitat subunit may require special management considerations or protection to address threats from altered hydrology and nonnative species

that may negatively impact the San Diego fairy shrimp and its habitat.

Subunit 3E.1: Ramona Grasslands

We are designating subunit 3E.1 as critical habitat for the San Diego fairy shrimp. Subunit 3E.1 consists of 382 ac (154 ha) of habitat occupied by the species at the time of listing and the species continues to occur within this subunit. This subunit contains all of the features essential to the conservation of the species. Subunit 3E.1 is located in the western portion of the Santa Maria Valley, north of the Santa Maria Creek and southwest of the Ramona Airport, 20 mi (32 km) inland from the coast. Subunit 3E.1 consists of 1 ac (<1 ha) land owned by the Water District and 381 ac (153 ha) of privately owned land.

Various conservation organizations are in the process of acquiring land within this subunit; however, not all of the land is conserved at this point and there is no long-term management plan for the conservation of the San Diego fairy shrimp and its vernal pool habitat. The PCEs in this critical habitat subunit may require special management considerations or protection to address threats from development, off-road vehicles, altered hydrology, and nonnative species that may negatively impact the San Diego fairy shrimp and its habitat.

Subunit 3E.2: Ramona Airport

We are designating subunit 3E.2 as critical habitat for the San Diego fairy shrimp. Subunit 3E.2 consists of 191 ac (77 ha) of habitat occupied by the species at the time of listing and the species continues to occur within this subunit. This subunit contains all of the features essential to the conservation of the species. Subunit 3E.2 is located in the central portion of the Santa Maria Valley, north of the Santa Maria Creek and south of the Ramona Airport, 21 mi (34 km) inland from the coast. Subunit 3E.2 consists of 67 ac (27 ha) public land owned by the County of San Diego and 124 ac (50 ha) of privately owned land.

Various conservation organizations are in the process of acquiring land within this subunit; however, not all of the land is conserved at this point and there is no long-term management plan for the conservation of the San Diego fairy shrimp. The PCEs in this critical habitat subunit may require special management considerations or protection to address threats from development, off-road vehicles, altered hydrology, and nonnative species that may negatively impact the San Diego fairy shrimp and its habitat.

Subunit 3E.3: Ramona, Main Street

We are designating subunit 3E.3 as critical habitat for the San Diego fairy shrimp. Subunit 3E.3 consists of 27 ac (11 ha) of habitat occupied by the species at the time of listing and the species continues to occur within this subunit. This subunit contains all of the features essential to the conservation of the species. Subunit 3E.3 is located along Main Street in Ramona, 23 mi (37 km) inland from the coast. Subunit 3E.3 consists of 1 ac (<1 ha) of land owned by the County of San Diego and 26 ac (10 ha) of private land.

This site is privately owned and subject to potential development. In addition, the site is currently not fenced and its vernal pool habitat is subject to continuing impacts from off-road vehicles. The PCEs in this critical habitat subunit may require special management considerations or protection to address threats from development, off-road vehicles, altered hydrology, and nonnative species that may negatively impact the San Diego fairy shrimp and its habitat.

Subunit 3E.4: Ramona High School

We are designating subunit 3E.4 as critical habitat for the San Diego fairy shrimp. Subunit 3E.4 consists of 40 ac (16 ha) of habitat occupied by the species at the time of listing and the species continues to occur within this subunit. This subunit contains all of the features essential to the conservation of the species. Subunit 3E.4 is located east of State Route 67, 24 mi (39 km) inland from the coast. Subunit 3E.4 consists of 35 ac (14 ha) of land owned by the Ramona Unified School District and 5 ac (2 ha) of privately owned land. The PCEs in this critical habitat subunit may require special management considerations or protection to address current development threats, and impacts from off-road vehicles, altered hydrology, and nonnative species that may negatively impact the San Diego fairy shrimp and its habitat.

Unit 4: San Diego, Central Coastal Mesas (551 ac (225 ha))

Unit 4 is located in San Diego County, California. The area was occupied at the time of listing and contains the features essential to the conservation of the San Diego fairy shrimp. These features may require special management considerations or protection due to threats from development, illegal trash dumping, OHV activity, and nonnative plant species. The occurrences of San Diego fairy shrimp in Unit 4 are associated with coastal terraces and mesas found south of the San Dieguito River to the Sweetwater River. While many of the vernal pool complexes in this unit have been destroyed or fragmented, the complexes being designated represent some of the best remaining vernal pools in San Diego County. Many of the vernal pools in this unit receive conservation protection by virtue of their land ownership; however, they may require additional management to maintain populations of San Diego fairy shrimp. This unit contains vernal pools that support San Diego fairy shrimp populations in both the “Group A” and “Group B” genetic clade (Bohonak 2004, pp. 3-9). This unit includes vernal pools that are within the center of this species' geographical distribution and retains the genetic diversity of these geographically distinct populations. For more information about Unit 4 please see the proposed rule (68 FR 19888; April 22, 2003).

We have determined that MCAS Miramar's INRMP provides a benefit to the San Diego fairy shrimp and, therefore, MCAS Miramar is exempt from the designation pursuant to section 4(a)(3) of the Act (see Exemptions and Exclusions section below for a detailed discussion of this exemption).

Subunit 4A/B: Del Mar Mesa

We are designating subunit 4A/B as critical habitat for the San Diego fairy shrimp. Subunit 4A/B consists of 252 ac (102 ha) of habitat occupied by the species at the time of listing and the species continues to occur within this subunit. This subunit contains all of the features essential to the conservation of the species. Subunit 4A/B is located south of State Route 56 and north of Los Peñasquitos Canyon, 6 mi (10 km) inland from the coast. Subunit 4A/B consists 51 ac (21 ha) land owned by the City of San Diego, 5 ac (2 ha) land owned by the County of San Diego, 56 ac (23 ha) land owned by the State of California, 41 ac (16 ha) land owned by the Service, and 99 ac (40 ha) is privately owned land.

The PCEs in this critical habitat subunit may require special management considerations or protection to address threats from development, off-road vehicles, altered hydrology, and nonnative species that may negatively impact the San Diego fairy shrimp and its habitat.

Subunit 4C: Murphy Canyon Navy Housing

We are designating subunit 4C as critical habitat for the San Diego fairy shrimp. Subunit 4C consists of 41 ac (17 ha) of habitat occupied by the species at the time of listing and the species

continues to occur within this subunit. This subunit contains all of the features essential to the conservation of the species. Subunit 4C is located northeast of the junction of Interstate 8 and Interstate 15, 10 mi (16 km) inland from the coast. Subunit 4C consists of 40 ac (16 ha) of DOD land and 1 ac (<1 ha) of public land owned by the City of San Diego.

As a result of two section 7 consultations (Service 2002; Service 2003), the vernal pool habitat in this subunit and in subunit 4D were restored to offset project impacts. The Navy has completed a 5-year monitoring and management period as described in the section 7 consultations and is now seeking funds for a long-term management plan for this area (Jacobsen 2007, p. 1). However, at this time additional management measures may be needed for the conservation of San Diego fairy shrimp. The PCEs in this subunit may require special management considerations or protection to address on-going threats from recreational activities, illegal dumping, and nonnative species that may negatively impact the San Diego fairy shrimp and its habitat.

Subunit 4D: Chollas Heights Navy Housing

We are designating subunit 4D as critical habitat for the San Diego fairy shrimp. Subunit 4D consists of 16 ac (7 ha) of habitat occupied by the species at the time of listing and the species continues to occur within this subunit. This subunit contains all of the features essential to the conservation of the species. Subunit 4D is located north of State Route 94 and north Chollas Reservoir, 8 mi (13 km) inland from the coast. Subunit 4D consists entirely of DOD land.

As a result of two section 7 consultations (Service 2002; Service 2003), the vernal pool habitat in this subunit and in subunit 4C were restored to offset project impacts. The Navy has completed a 5-year monitoring and management period as described in the section 7 consultations and is now seeking funds for a long-term management plan for this area (Jacobsen 2007, p. 1). However, at this time additional management measures may be needed for the conservation of San Diego fairy shrimp. The PCEs in this subunit may require special management considerations or protection to address on-going threats from nonnative species that may negatively impact the San Diego fairy shrimp and its habi

This text is long and has been trimmed here. Open the source document for the complete record.