Endangered and Threatened Wildlife and Plants; Determination of Endangered Status and Withdrawal of Proposal to Give Endangered Status; Final Rule and Proposed Rule DEPARTMENT OF THE INTERIOR

SUMMARY: The U.S. Fish and Wildlife Service (Service) determines

endangered status pursuant to the Endangered Species Act of 1973, as

amended (Act) for the Conservancy fairy shrimp (Branchinecta

conservatio), longhorn fairy shrimp (Branchinecta longiantenna), and

the vernal pool tadpole shrimp (Lepidurus packardi); and threatened

status for the vernal pool fairy shrimp (Branchinecta lynchi). These

four invertebrate species are restricted to vernal pools in the State

of California and are in danger of extinction principally as the result

of urban development, conversion of native habitats to agriculture, and

stochastic (random) extinction by virtue of the small isolated nature

of many of the remaining populations. This rule implements Federal

protection and recovery provisions afforded by the Act for all of these

animals.

One species, the California linderiella (Linderiella occidentalis),

which had been proposed for listing with the above species, has been

withdrawn. Additional information that has become available to the

Service since the publication of the proposed rule reveals that this

species is more abundant than previously known. The Service has

considered the additional information and has determined that the

California linderiella is not likely to become either endangered or

threatened throughout all or a significant portion of its range in the

foreseeable future, and it does not qualify for listing under the Act.

A notice withdrawing the proposal is published in the Federal Register

concurrently with this final rule.

EFFECTIVE DATE: September 19, 1994.

ADDRESSES: The complete file for this final rule is available for

public inspection, by appointment, during normal business hours at the

Sacramento Field Office, U.S. Fish and Wildlife Service, 2800 Cottage

Way Room E-1823, Sacramento, California 95825-1846.

FOR FURTHER INFORMATION CONTACT:

Chris Nagano or Jim Browning at the above address or by telephone (916/

978-4866).

SUPPLEMENTARY INFORMATION:

Background

The Conservancy fairy shrimp, longhorn fairy shrimp, and the vernal

pool fairy shrimp are members of the aquatic crustacean order

Anostraca. The vernal pool tadpole shrimp is a member of the aquatic

crustacean order Notostraca. They are endemic to vernal pools in the

Central Valley, coast ranges, and a limited number of sites in the

Transverse Range and Santa Rosa Plateau of California.

The three fairy shrimp and the vernal pool tadpole shrimp live in

vernal pools, an ephemeral freshwater habitat. None are known to occur

in riverine waters, marine waters, or other permanent bodies of water.

They are ecologically dependent on seasonal fluctuations in their

habitat, such as absence or presence of water during specific times of

the year, duration of inundation, and other environmental factors that

include specific salinity, conductivity, dissolved solids, and pH

levels. Water chemistry is one of the most important factors in

determining the distribution of fairy shrimp and tadpole shrimp (Belk

1977; Jamie King, University of California, in litt., 1992; Marie

Simovich, University of San Diego, in litt., 1992). The four species

included in this final rule are sporadic in their distribution, often

inhabiting only one or a few pools in otherwise more widespread vernal

pool complexes (Larry Eng, California Department of Fish and Game,

pers. comm., 1990; Jamie King, in litt., 1992; Marie Simovich, in

litt., 1992; Richard Brusca, San Diego Museum of Natural History, pers.

comm., 1992).

Fairy shrimp have delicate elongate bodies, large stalked compound

eyes, no carapace, and 11 pairs of swimming legs. They swim or glide

gracefully upside down by means of complex beating movements of the

legs that pass in a wave-like anterior to posterior direction. Nearly

all fairy shrimp feed on algae, bacteria, protozoa, rotifers, and bits

of detritus (Pennak 1989). The second pair of antennae in the adult

females are cylindrical and elongate, but in the males are greatly

enlarged and specialized for clasping the females during copulation.

The females carry the eggs in an oval or elongate ventral brood sac.

The eggs are either dropped to the pool bottom or remain in the brood

sac until the female dies and sinks. The ``resting'' or ``summer'' eggs

are capable of withstanding heat, cold, and prolonged desiccation. When

the pools refill in the same or subsequent seasons some, but not all,

of the eggs may hatch. The egg bank in the soil may be comprised of the

eggs from several years of breeding (Donald 1983). The eggs hatch when

the vernal pools fill with rainwater. The early stages of the fairy

shrimp develop rapidly into adults. These non-dormant populations often

disappear early in the season long before the vernal pools dry up.

Tadpole shrimp have dorsal compound eyes, a large shield-like

carapace that covers most of the body, and a pair of long cercopods at

the end of the last abdominal segment (Brusca and Brusca 1991; Pennak

1989; Linder 1952; Longhurst 1955a; Lynch 1966, 1972). They are

primarily benthic animals that swim with their legs down. Tadpole

shrimp climb or scramble over objects, as well as plow along in bottom

sediments. Their diet consists of organic detritus and living

organisms, such as fairy shrimp and other invertebrates (Pennak 1989;

Fryer 1987). Mating in tadpole shrimp is described by Longhurst

(1955b). The females deposit their eggs on vegetation and other objects

on the bottom. Vernal pool tadpole shrimp populations pass the dry

summer months as diapaused eggs in pool sediments. Some of the eggs

hatch as the vernal pools are filled with rainwater in the fall and

winter of subsequent seasons.

Vernal pools have a discontinuance occurrence in several regions of

California. Generally vernal pool habitat is found west of the Sierra

Nevada and extends from southern Oregon into northern Baja, California

(Holland and Jain 1977, 1988). Vernal pools form in regions with

Mediterranean climates where shallow depressions fill with water during

fall and winter rains and then evaporate in the spring (Collie and

Lathrop 1976; Holland 1976, 1978; Holland and Jain 1977, 1988; Norwick

1992; Thorne 1984). Overbank flooding from intermittent streams may

augment the amount of water in some vernal pools (Hanes et al. 1990).

Downward percolation is prevented by the presence of an impervious

subsurface layer, such as a claypan, hardpan, or volcanic stratum

(Holland 1976, 1988). Due to local topography and geology, the pools

are usually clustered into pool complexes (Holland and Jain 1988).

Pools within a complex typically are separated by distances on the

order of meters and may form dense, interconnected mosaics of small

pools or a more sparse scattering of larger pools. Temporary inundation

makes vernal pools too wet during the wetted period for adjacent upland

plant species adapted to drier soil conditions, while rapid drying

during late spring makes pool basins unsuitable for typical marsh or

aquatic species that require a more permanent source of water. However,

many indigenous plant and aquatic invertebrate species have evolved to

occupy the extreme environmental conditions found in vernal pool

habitats. Fairy shrimp and tadpole shrimp play an important role in the

community ecology of many ephemeral water bodies (R. Brusca, pers.

comm., 1992; Loring et al. 1988). They are fed upon by waterfowl (Ahl

1991; Driver 1981; Krapu 1974; Swanson et al. 1974) and other

vertebrates, such as western spadefoot toad (Scaphiopus hammondi)

tadpoles (M. Simovich, pers. comm., 1991).

The genetic characteristics of the three fairy shrimp and the

vernal pool tadpole shrimp, as well as ecological conditions, such as

watershed contiguity, indicate that populations of these animals are

defined by pool complexes rather than by individual vernal pools

(Fugate 1992; J. King, unpubl. data). Therefore, the most accurate

indication of the distribution and abundance of the four vernal pool

crustaceans is the number of inhabited vernal pool complexes.

Individual vernal pools occupied by the four species listed herein are

most appropriately referred to as subpopulations.

Urban, water, flood control, highway, and utility projects, as well

as conversion of wildlands to agricultural use, have eliminated vernal

pools in southern California (Riverside and San Diego Counties), the

Central Valley, and San Francisco Bay area (Jones and Stokes Associates

1987). Changes in hydrologic pattern, overgrazing, and off-road vehicle

use also imperil this aquatic habitat and the four species listed

herein. Human activities that alter the watershed of vernal pools

indirectly affect these animals. The flora and fauna in vernal pools or

swales can change if the hydrologic regime is altered (Bauder 1986,

1987). Anthropogenic activities that reduce the extent of the watershed

or that alter runoff patterns (i.e., amounts and seasonal distribution)

may eliminate the animals, reduce their population sizes or

reproductive success, or shift the location of sites inhabited by these

animals.

According to Holland (1978), there were an estimated 1.7 million

hectares (4.2 million acres) in the Central Valley that possibly

supported vernal pools at the time Europeans arrived in California.

Holland estimated that between 67 and 88 percent of this acreage was

destroyed by 1973, largely by human activities (Holland 1978). However,

both the acreage of historic vernal pool habitat and estimates of loss

determined in this study have been disputed by others. Vernal pools in

southern California have been highly impacted by human activities

(Zedler 1987). The rate of loss of vernal pool habitat in parts of

California has been estimated to occur at approximately 2 or 3 percent

per year (Holland 1988).

Discussion of the Four Species

The Conservancy fairy shrimp (Branchinecta conservatio), a member

of the family Branchinetidae, was described from specimens collected at

the Jepson Prairie Preserve, located in the Central Valley east of

Travis Air Force Base in Solano County (Eng et al. 1990). The animal

ranges in size from 14 to 27 millimeters (0.6 to 1.1 inches) long and

is most similar in appearance to Lindahl's fairy shrimp (Branchinecta

lindahli). However, the female brood pouch is fusiform and usually ends

under abdominal segment 8 in the Conservancy fairy shrimp, whereas the

pouch is cylindrical and usually ends under segment 4 in Lindahl's

fairy shrimp. The large, oval pulvillus at the proximal end of the

basal segment of the male antenna appears similar in both species,

however, the terminal end of the distal antennal segments of the

Conservancy fairy shrimp are distinctive (Eng et al. 1990).

The Conservancy fairy shrimp inhabits vernal pools with highly

turbid water. The species is known from six disjunct populations: Vina

Plains, Tehama County; south of Chico, Tehama County; Jepson Prairie,

Solano County; Sacramento National Wildlife Refuge, Glenn County (Joe

Silviera, U.S. Fish and Wildlife Service, pers. comm., 1993), near

Haystack Mountain northeast of Merced in Merced County; and the

Lockewood Valley of northern Ventura County (Michael Fugate, University

of California at Riverside, pers. comm., 1991). The pools inhabited by

the Conservancy fairy shrimp are large, such as the 36 hectare (89

acre) Olcott Lake at Jepson Prairie (Eng, pers. comm., 1990). The

Conservancy fairy shrimp has been observed from November to early

April. The pools at Jepson Prairie and Vina Plains inhabited by this

animal have very low conductivity, total dissolved solids (TDS), and

alkalinity (Barclay and Knight 1984; Eng et al. 1990). The Conservancy

fairy shrimp is usually collected at cool temperatures and appears to

be relatively long-lived (Simovich et al. 1992; Patton 1984).

The longhorn fairy shrimp (Branchinecta longiantenna), a member of

the family Branchinectidae, was described from specimens collected at

Souza Ranch in the Kellogg Creek watershed, about 35 kilometers (22

miles) southeast of the City of Concord, Contra Costa County (Eng et

al. 1990). It ranges in size from 12.1 to 20.8 mm (0.5 to 0.8 inches).

This species differs from other branchinectids in that a portion of the

distal segment of its antennae is flattened in the antero-posterior

plane rather than the latero-medial plane.

The longhorn fairy shrimp inhabits clear to turbid grass-bottomed

vernal pools in grasslands and clear-water pools in sandstone

depressions. This species is known only from four disjunct populations

along the eastern margin of the central coast range from Concord,

Contra Costa County south to Soda Lake in San Luis Obispo County: the

Kellogg Creek watershed, the Altamont Pass area, the western and

northern boundaries of Soda Lake on the Carrizo Plain (Eng et al.

1990), and Kesterson National Wildlife Refuge in the Central Valley

(Dennis Woolington, U.S. Fish and Wildlife Service, in litt. 1993). All

vernal pools inhabited by this species are filled by winter and spring

rains and may remain inundated until June. The longhorn fairy shrimp

has been observed from late December until late April. The water is

grassland pools inhabited by this species has very low conductivity,

TDS, and alkalinity (Eng et al. 1990).

The vernal pool fairy shrimp (Branchinecta lynchi), a member of the

family Branchinectidae, was described from specimens collected at Souza

Ranch in the Kellogg Creek watershed, Contra Costa County, California

(Eng et al. 1990). It ranges in size from 10.9 to 25.0 mm (0.4 to 1.0

inches). This species most resembles the Colorado fairy shrimp

(Branchinecta coloradensis). There are several differences in the

antennae of the males of the two species, including the basal segment

outgrowth below and posterior to the pulvillus, which is ridge-like in

the vernal pool fairy shrimp but is cylindrical and often much larger

in the Colorado fairy shrimp. The shorter brood pouch of the vernal

pool fairy shrimp is pyriform, whereas the longer one in the Colorado

fairy shrimp is fusiform (Eng et al. 1990).

Although the vernal pool fairy shrimp has a relatively wide range,

the majority of known populations inhabit vernal pools with clear to

tea-colored water, most commonly in grass or mud bottomed swales, or

basalt flow depression pools in unplowed grasslands, but one population

occurs in sandstone rock outcrops and another population in alkaline

vernal pools. The vernal pool fairy shrimp has been collected from

early December to early May. The water in pools inhabited by this

species has low TDS, conductivity, alkalinity, and chloride (Collie and

Lathrop 1976). This species has a sporadic distribution within vernal

pool complexes (Jones and Stokes, 1992, 1993; County of Sacramento

1990; Patton 1984; Stromberg 1993; Sugnet and Associates 1993b) wherein

the majority of pools in a given complex typically are not inhabited by

the species. Simovich et al. (1992) reported that the vernal pool fairy

shrimp typically is found at low population densities. Only rarely does

the vernal pool fairy shrimp co-occur with other fairy shrimp species,

but where it does, the vernal pool fairy shrimp is never the

numerically dominant one (Eng et al. 1990). Although it can mature

quickly, allowing populations to persist in short-lived shallow pools,

it also persists later into the spring where pools are longer lasting

(Simovich et al. 1992). Sugnet and Associates (1993b) listed 178

records for the species out of 3092 ``discrete locations'' containing

potential habitat in their report. These 178 records represent the 32

known populations of the vernal pool fairy shrimp, which extend from

Stillwater Plain in Shasta County through most of the length of the

Central Valley to Pixley in Tulare County, and along the central coast

range from northern Solano County to Pinnacles in San Benito County

(Eng et al. 1990; M. Fugate, pers. comm., 1991; Sugnet & Associates

1993b). Five of these populations are believed to be comprised of a

single inhabited pool. Four additional, disjunct populations exist; one

near Soda Lake in San Luis Obispo County, one in the mountain

grasslands of northern Santa Barbara County, one near the Santa Rosa

Plateau in Riverside County, and one near Rancho California in

Riverside County. Three of these four isolated populations contain only

a single known pool occupied by the vernal pool fairy shrimp.

The vernal pool tadpole shrimp (Lepidurus packardi), a member of

the family Triopsidae, was described by Eugene Simon in 1866 (Longhurst

1955a). Longhurst (1955a) placed the name in synonymy with Lepidurus

apus. Subsequently, Lynch (1972) examined the taxa and determined that

Lepidurus packardi is a valid species. The Service accepts Lynch's

taxonomic treatment of the genus Lepidurus, which maintains L. packardi

as a species.

Vernal pool tadpole shrimp adults reach a length of 50 millimeters

(2 inches). They have about 35 pairs of legs and two long cercopods.

This species superficially resembles the ricefield tadpole shrimp

(Triops longicaudatus). However, Lepidurus possess a flat paddle-shaped

supra-anal plate that is entirely lacking in members of the genus

Triops (Pennak 1989; R. Brusca in litt., 1992; M. Simovich in litt.,

1992; J. King in litt., 1992). The vernal pool tadpole shrimp is known

from 18 populations in the Central Valley, ranging from east of Redding

in Shasta County south through the Central Valley to the San Luis

National Wildlife Refuge in Merced County, and from a single vernal

pool complex located on the San Francisco Bay National Wildlife Refuge

in the City of Fremont, Alameda County.

The vernal pool tadpole shrimp inhabits vernal pools containing

clear to highly turbid water, ranging in size from 5 square meters (54

square feet) in the Mather Air Force Base area of Sacramento County, to

the 36 hectare (89 acre) Olcott Lake at Jepson Prairie. The pools at

Jepson Prairie and Vina Plains have a very low conductivity, TDS, and

alkalinity (Barclay and Knight 1984; Eng et al. 1990). These pools are

located most commonly in grass bottomed swales of grasslands in old

alluvial soils underlain by hardpan or in mud-bottomed pools containing

highly turbid water.

The life history of the vernal pool tadpole shrimp is linked to the

phenology of the vernal pool habitat. After winter rainwater fills the

pools, the populations are reestablished from diapaused eggs that lie

dormant in the dry pool sediments (Ahl 1991; Lanway 1974). Ahl (1991)

found that eggs in one pool hatched within three weeks of inundation

and maturated to sexually reproductive adults in another three to four

weeks. Simovich et al. (1992) reported sexually mature adults occurred

in another pool three to four weeks after the pools had been filled. A

female surviving to large size may lay up to six clutches of eggs,

totaling about 861 eggs in her lifetime (Ahl 1991). The eggs are sticky

and readily adhere to plant matter and sediment particles (Simovich et

al. 1992). A portion of the eggs hatch immediately and the rest enter

diapause and remain in the soil to hatch during later rainy seasons

(Ahl 1991). The vernal pool tadpole shrimp matures slowly and is a

long-lived species (Ahl 1991; Alexander 1976). Adults are often present

and reproductive until the pools dry up in the spring (Ahl 1991;

Simovich et al. 1992).

Previous Federal Actions

Ms. Roxanne Bittman petitioned the Service to list the Conservancy

fairy shrimp, longhorn fairy shrimp, vernal pool fairy shrimp, and

California linderiella as endangered species in a letter dated November

19, 1990, which was received by the Service on November 20, 1990. Ms.

Bittman submitted additional information on these species in a letter

dated November 20, 1990, which was received on November 26, 1990. On

March 21, 1991, the Service made a 90-day finding that the petition

contained substantial information indicating that the action requested

may be warranted. A notice announcing this finding was published in the

Federal Register on August 30, 1991 (56 FR 426968).

Ms. Dee Warenycia petitioned the Service to list the vernal pool

tadpole shrimp as an endangered species in a letter dated April 28,

1991, which was received by the Service on April 30, 1991. On November

21, 1991, the Service determined in the administrative 90-day finding

that the petition contained substantial information that the action

requested may be warranted. On May 8, 1992, the Service published a

proposed rule in the Federal Register (57 FR 19856) to list the four

fairy shrimp and vernal pool tadpole shrimp as endangered.

Summary of Comments and Recommendations

In the May 8, 1992, proposed rule (57 FR 19856) and associated

notifications, all interested parties were requested to submit factual

reports or information that might assist the Service in determining

whether these taxa warrant listing. Appropriate State agencies, county

governments, including affected planning departments, Federal agencies,

scientific organizations, and other interested parties were contacted

and requested to comment. Notices of this proposal were published in

the Santa Rosa Press Democrat, San Francisco Chronicle, Monterey

Herald, Chico Enterprise Record, San Luis Obispo Telegram-Tribune,

Santa Barbara News-Press, Modesto Bee, Sacramento Bee, and the Fresno

Bee on June 5, 1992.

On June 4, 1992, the Service received a written request for a

public hearing from Mr. George Robson of the Tehama County Planning

Department. Several other requests for a public hearing also were

received. As a result, on August 13, 1992, the Service published a

notice in the Federal Register (57 FR 36380) announcing the public

hearing and reopening the comment period until September 18, 1992. The

Service conducted a public hearing on August 31, 1992, at the Radisson

Hotel in Sacramento, California. Testimony was taken from 6 p.m. to 8

p.m. Twenty-one persons presented testimony.

On September 18, 1992, the Service attended a public meeting held

at the Red Bluff Community Center in Red Bluff, Tehama County,

California. Six people presented oral and written comments to the

Service.

During the comment periods, the Service received 117 comments

(letters and oral testimony). Several people submitted more than one

comment to the Service. The Service received two petitions containing

63 signatures of people supporting the listing and one petition

containing 190 signatures of people opposed to the listing. The

California Department of Parks and Recreation supported a listing of

threatened for the four fairy shrimp but did not state a position on

the vernal pool tadpole shrimp. The California Department of Fish and

Game expressed concern for the fairy shrimp and also did not state a

position on the vernal pool tadpole shrimp. Comments supporting the

listing were received from 41 private parties, including the Riverside

County Planning Department, and nine professional biologists from

several institutions, including the Stanford University Center for

Conservation Biology, University of California, University of San

Diego, and San Diego Museum of Natural History. Comments opposing the

listing were received from 34 private parties, organizations, and

agencies including seven mosquito abatement districts. Opposition to

the listing also was expressed by Congressman Wally Herger and

Congressman Vic Fazio. Four commenters did not express an opinion.

In addition, after the comment period closed, six parties,

including the California Department of Fish and Game, requested that

the Service extend the date of the final determination for the five

species by six months pursuant to 16 U.S.C. 1533(b)(6). The Act

provides for a six-month extension if the Secretary finds that ``* * *

there is substantial disagreement regarding the sufficiency or accuracy

of the available data relevant to the determination * * * for the

purposes of soliciting additional data.'' One of these commenters

submitted a report that summarized collection records and field work

conducted in 1993 (Sugnet and Associates 1993b). The California

Department of Fish and Game supported the extension but stated that

they had no additional information. The California Native Plant Society

opposed the six-month extension and urged the Service to immediately

list the five species under the Act.

The Service has reviewed all of the written and oral comments

described above. Comments updating the data presented in the

``Background'' or ``Summary of Factors Affecting the Species'' are

incorporated in those sections of this final rule. Opposing comments

and other comments concerning the rule have been organized into

specific issues. These issues and the Service's response to each are

summarized as follows:

Issue 1: A number of commenters stated that a single public hearing

was inadequate to obtain full public input on the proposal. They

requested that public hearings be held in all of the towns and counties

that contain vernal pools and swales inhabited by the five species.

Service Response: The Service is obligated to hold one public

hearing on a listing proposal if requested to do so within 45 days of

publication of the proposal (16 U.S.C. 1533(b)(5)(E)). In addition to

the public hearing held on August 31, 1992, the Service attended a

public meeting organized by Congressman Vic Fazio in Red Bluff, on

September 18, 1992. The public comment period was extended to September

8, 1992, to allow all interested parties to provide written comments.

In making a decision on a listing proposal, written comments are given

the same weight as oral comments presented at hearings.

Issue 2: Several respondents stated that the Service's notification

of the public on this proposal was inadequate.

Service Response: The Service went through an extensive

notification process to make the public aware of this proposal; this

process satisfied the requirements of the Act and is described at the

beginning of this section.

Issue 3: Many respondents concluded that listing the fairy shrimp

and the vernal pool tadpole shrimp would result in adverse economic

impacts to thousands of hectares of land and questioned the value of

these animals to society. Two commenters requested that an analysis of

the economic impact of listing these species be completed. Two

commenters noted that these species are restricted to vernal pools but

stated that listing would result in adverse economic impacts by

eliminating future residential or commercial development in areas

containing this habitat. Five commenters claimed the fairy shrimp and

the vernal pool tadpole shrimp are ``insignificant'' species and that

listing would interfere with the natural evolutionary process of

extinction. On the other hand, a number of respondents asserted that

opposition to the listing of the species was based solely on economic

interests. They cited the ecological and educational value of vernal

pool plants and animals. Four crustacean biologists noted the species

can be considered ``living fossils'' and are of great scientific value

to the study of biological evolution, systematics, and ecology.

Service Response: Under section 4(b)(1)(A) of the Act, a listing

determination must be based solely on the best scientific and

commercial data available. The legislative history of this provision

clearly states the intent of Congress to ``ensure'' that listing

decisions are ``based solely on biological criteria and to prevent non-

biological criteria from effecting such decisions'' H.R. Rep. No. 97-

835, 97th Cong. 2d Sess. 19 (1982). As further stated in the

legislative history, ``economic considerations have no relevance to

determinations regarding the status of species.'' Because the Service

is specifically precluded from considering economic impacts in a final

decision on a proposed listing, the Service has not considered possible

economic consequences of listing the three fairy shrimp and the vernal

pool tadpole shrimp. There may be many opinions as to a particular

species' contribution to society, including their aesthetic,

scientific, or other significance, however, this contribution is not

among the five factors upon which a listing determination is based.

Issue 4: One commenter recommended that the Service prepare an

Environmental Impact Statement (EIS), pursuant to the National

Environmental Policy Act (NEPA), on this rule. He stated that a

decision to list these five crustaceans is a major Federal action that

significantly affects the quality of the human environment.

Service Response: For the reasons set out in the NEPA section of

this document, the Service takes the position that rules issued

pursuant to section 4(a) of the Act do not require the preparation of

an EIS. The courts held in Pacific Legal Foundation v. Andrus, 657 F2d.

829 (6th Circuit 1981) that an EIS is not required for listing under

the Act. The decision noted that preparing EIS's on listing actions

does not further the goals of NEPA or the Act.

Issue 5: One commenter requested that the Service conduct a Takings

Implications Assessment under Executive Order 12630 for this listing

action.

Service Response: The Attorney General has issued guidelines to the

Department of the Interior (Department) regarding implementation of

Executive Order 12630.

The Attorney General's guidelines state that Taking Implications

Assessments (TIAs), which are used to analyze the potential for Fifth

Amendment taking claims are to be prepared after, rather than before,

an agency makes a decision upon which its discretion is restricted. In

enacting the Endangered Species Act, Congress required the Department

to list a species based solely upon scientific and commercial data

indicating whether or not the species is in danger of extinction. No

discretion is afforded and the Service may not withhold a listing based

upon economic concerns. Therefore, even though a TIA is required, a TIA

for a listing action is to be finalized only after the final decision

whether to list a species is made.

Issue 6: The California Department of parks and Recreation

recommended that the four fairy shrimp should be listed as threatened

species rather than endangered species.

Service Response: The Service has determined that threatened status

is appropriate for the vernal pool fairy shrimp. The proposal to list

the California linderiella as an endangered species has been withdrawn.

The rationale for these actions and endangered status for the two other

fairy shrimp species and the vernal pool tadpole shrimp is described at

the conclusion of the ``Summary of Factors Affecting the Species''

section.

Issue 7: Several commenters expressed concern that it will be

difficult or impossible to delist any or all of the crustaceans listed

herein.

Service Response: When the recovery goals for a species have been

met, the Service may prepare a proposal to delist or reclassify it. The

process for delisting or reclassifying a species, allowed for at

section 4(b)(3)(A) of the Act, is the same process used for listing the

species.

Issue 8: Three respondents stated that compared to other federally

listed crustaceans, the fairy shrimp and the vernal pool tadpole shrimp

do not warrant listing under the Act.

Service Response: The claim that the status of the fairy shrimp and

the vernal pool tadpole shrimp do not warrant listing under the Act

when compared with other listed crustaceans does not address the full

range of issues and complexities bearing on listing decisions. The

multiplicity of factors and relationships that must be considered and

interpreted in assigning the appropriate status to listed taxa is

sufficiently complex that patterns of consistency may not be

necessarily agreed upon by all parties.

Issue 9: Several respondents stated that critical habitat should be

designated for the fairy shrimp and the vernal pool tadpole shrimp.

Service Response: The Service believes that the danger posed by

designating critical habitat at this time outweighs the potential

benefits. As discussed in Factors ``A'' and ``E'' under the ``Summary

of Factors Affecting the Species'' section below, all of the species

included in this final rule could be adversely affected by acts of

vandalism. The Service is aware of vernal pools that contained suitable

habitat for these animals that apparently were destroyed to escape

regulatory requirements. Designation of critical habitat at this time

would increase the degree of threat facing these species.

Issue 10: One commenter stated that there is not enough data on the

species listed herein upon which to develop a recovery plan.

Service Response: Section 4(f) of the Act directs the Secretary to

develop and implement recovery plans for conservation and survival of

listed endangered and threatened species. The Service intends to pursue

the development of a recovery plan for the four species as soon as

possible. Identification of needed research and acquisition of

additional data are key components of most recovery plans.

Issue 11: Several commenters stated that the California linderiella

and the vernal pool fairy shrimp do not warrant listing because of

their widespread distribution.

Service Response: Species may be listed under the Act if one or

more of the five listing criteria imperils the species with extinction

or if the species is likely to become endangered in the foreseeable

future, throughout all or a significant portion of its range. These

criteria apply for narrowly, as well as widely distributed species. As

described elsewhere in this final rule, the vernal pool fairy shrimp is

imperiled by habitat loss from construction activities and degradation

to the extent that 28 of the 32 known populations face one or more of

the various threats described elsewhere in this rule. Thus, even though

this species has a relatively wide range in California, it is imperiled

by one or more of five factors throughout a significant portion of its

range.

At the time the proposed rule was published, the California

linderiella was known from vernal pools in the Central Valley from

central Tehama County to central Madera County and across the valley in

the Sacramento area to the central and south coast mountains from Lake

County south to Riverside County. Surveys conducted in 1993 and other

information that has become available to the Service indicate that the

range extends from Shasta County south to Fresno County and across the

valley to the Coast and Transverse Ranges from Willits in Mendocino

County south to near Sulfur Mountain in Ventura County. Within this

area more vernal pools have been found to contain subpopulations of the

California linderiella than was known at the time of the proposed rule.

The populations in Riverside County have been determined to represent

an undescribed species of Linderiella. The Service has carefully

considered the additional information and has determined that the

California linderiella fails to meet the definition of either an

endangered or threatened species and has withdrawn it from

consideration for endangered or threatened status.

Issue 12: After the comment period closed, six parties requested

that the Service extend the date of the final determination for these

species pursuant to 16 U.S.C. 1533(b)(6). That section of the Act

provides for a six-month extension to solicit additional data if the

Secretary finds that ``there is substantial disagreement regarding the

sufficiency or accuracy of the available data relevant to the

determination.'' The parties asserted that additional information on

the range and status of these animals could become available during

this time period. One of these commenters submitted a report as the

basis for their request that summarized museum, literature, and field

records, the majority of which were collected in 1993, for the five

species (Sugnet and Associates 1993b). A seventh party, the California

Native Plant Society, stated that they were opposed to the six month

extension and they urged the Service to immediately list the five

species.

Service Response: The report by Sugnet and Associates (1993b)

provided a number of records for the California linderiella, vernal

pool fairy shrimp, and the vernal pool tadpole shrimp that have been

incorporated into this final rule. The report listed 3092 ``discrete

locations'' that contained 703 records of the California linderiella,

178 records of the vernal pool fairy shrimp, and 345 records of the

vernal pool tadpole shrimp.

The report by Sugnet and Associates (1993b) presented only township

and range information on the locations of the California linderiella,

vernal pool fairy shrimp, longhorn fairy shrimp, Conservancy fairy

shrimp, and the vernal pool tadpole shrimp. A request by the California

Department of Fish and Game to obtain the precise locations that served

as the basis for the report was unsuccessful (letter from California

Department of Fish and Game to Sugnet and Associates, dated December

29, 1993; letter from Sugnet and Associates to California Department of

Fish and Game, dated January 29, 1994). The report also treated the

records of the individual vernal pools inhabited by the California

linderiella, vernal pool fairy shrimp, and the vernal pool tadpole

shrimp as ``discrete locations.'' However, as described in greater

detail in the Background section, abundance of inhabited vernal pool

complexes most appropriately describes the population status of the

five vernal pool crustaceans; animals in individual pools most

appropriately are referred to as subpopulations. Accordingly, the study

by Sugnet and Associates (1993b) overestimated the number of

populations of the California linderiella, vernal pool fairy shrimp,

and the vernal pool tadpole shrimp. Statements in Sugnet and Associates

(1993b), such as ``Results of this effort indicate that B. lynchi

occurs at a total of 178 discrete locations * * *'', should be

interpreted in light of the fact that a number of inhabited pools can

occur within a single vernal pool complex, and that all of these could

be threatened by a single project proposal. For example, the proposed

Sunrise-Douglas development in Sacramento County contains over 500

vernal pools (Sugnet and Associates 1993a). An unknown number of these

pools contain the vernal pool fairy shrimp, and/or vernal pool tadpole

shrimp.

The data in Sugnet and Associates (1993b) and other information

available to the Service increased the known ranges and number of

populations from that described in the proposed rule for three of the

five species and located additional populations for one species. The

report identified a geographic range extension for the vernal pool

tadpole shrimp and increased the number of populations from fourteen to

seventeen; none were from unexpected areas or non-vernal pool habitat.

Two additional populations of the Conservancy fairy shrimp were

located, one at the Sacramento National Wildlife Refuge and one in

northern Ventura County. The geographic distribution of the vernal pool

fairy shrimp was not increased but additional pools containing this

species were located within the known range and known populations of

this animal.

With the exception of the California linderiella, the Service

concludes that the report by Sugnet and Associates (1993b) does not

provide a basis for significant disagreement regarding the sufficiency

or accuracy of the available data relevant to this listing action.

Rather, the data presented in the report substantiates the rarity and

fragmented distributions of the four species listed herein. Therefore,

the Service has determined to issue a final regulation pursuant to 16

U.S.C. 1533(b)(6)(i)(I).

Issue 13: Many commenters, including the California Department of

Transportation and Congressman Wally Herger, requested the Service

delay or not list the five species because they believed additional

distributional and ecological data are needed to determine the ``true''

status of these animals. Several people contended that the survey work

and collection data upon which the proposed rule was based are

inadequate. One commenter contended that this perceived lack of

information would result in a procedurally inadequate listing. Eight

commenters stated that the data utilized by the Service presents only

collection places inhabited by the species. They asserted that the

Service did not conduct a random field survey and failed to accurately

delineate the distributions of the species. These parties contended

that the absence of information on locations that are not inhabited by

the animals suggests a general lack of extensive collection efforts or

knowledge of them. To support the need for further field work, one

commenter cited 18 records of the vernal pool fairy shrimp and 30

records of the California linderiella that were not included in this

proposed rule. This commenter did not provide any additional records of

the Conservancy fairy shrimp, the longhorn fairy shrimp, or the vernal

pool tadpole shrimp.

Service Response: Scientifically credible data on the status of the

five crustaceans was collected in a random 322 kilometer (200 mile)

north-south transect in the Sacramento Valley from Fall River in Shasta

County to Jepson Prairie in Solano County (Simovich et al. 1992). This

study found that distinct segments totaling 35 kilometers (22 miles),

or 11 percent of the transect, contain vernal pools and swales. Within

the portions of the transect, the vernal pool tadpole shrimp and the

vernal pool fairy shrimp were found on 16 kilometers (10 miles), the

Conservancy fairy shrimp on 6 kilometers (4 miles), and the California

linderiella on 10 kilometers (6 miles). The animals were not found in

all pools and swales in suitable habitat areas in this study (J. King,

in litt., 1992). King (in litt., 1992) reported that the vernal pool

tadpole shrimp was found in only five pools on 8 kilometers (5 miles)

of the 16 kilometers (10 miles) of vernal pools where the animal

occurred, indicating a sparse distribution within much of the area

where it occurs. The fairy shrimp species and the vernal pool tadpole

shrimp largely were absent from extensive regions in the Sacramento

Valley where degraded vernal pools still remain, such as the Red Bluff

and Coyote Creek areas of Tehama County, and the Allendale area of

Solano County (R. Brusca, in litt., 1992). The three crustacean

biologists who conducted this research concluded that based on this

random field survey, these fairy shrimp species and the vernal pool

tadpole shrimp are rare throughout their ranges.

A comparison of the maps in Sugnet and Associates (1993b) indicates

that the number of occupied pools, and amount of suitable habitat for

the 30 populations of the California linderiella are larger than for

the 32 populations of the vernal pool fairy shrimp. In addition, the

California linderiella is known from the north coast, San Francisco Bay

area, western areas in the San Joaquin Valley, and the western

foothills of the Sierra Nevada in San Joaquin and Stanislaus Counties

where the vernal pool fairy shrimp is not known to be present (Sugnet

and Associates 1993b).

The Service concludes, as detailed in the ``Summary of Factors''

section, that there is sufficient biological evidence that the vernal

pool fairy shrimp, Conservancy fairy shrimp, longhorn fairy shrimp, and

the vernal pool tadpole shrimp warrant listing. Sampling conducted at

various locations and intensities between 1981 and 1993 by biologists

familiar with the four fairy shrimp and the vernal pool tadpole shrimp

and their habitat provided adequate information on the distribution,

habitat requirements, and most importantly, threats to the four species

to warrant the present action. All additional data provided by

respondents during the comment period, including the report by Sugnet &

Associates (1993b) have been incorporated into this final rule; none of

this data indicated that these taxa were not threatened or endangered.

The Service's decision to propose the four fairy shrimp and the vernal

pool tadpole shrimp was based on significant threats associated with

habitat loss and fragmentation, rather than solely on the basis of

population numbers.

Issue 14: Several commenters, including Congressman Wally Herger,

requested the precise locations of the populations of the species be

widely disseminated or included in the final rule. One respondent

requested that the Service notify all landowners whose property has

been found to contain one or more of the species.

Service Response: For the reasons discussed in the response dealing

with critical habitat below, the Service concludes that providing the

exact locations would increase the degree of threat facing these

species.

Issue 15: Some commenters were concerned that the Service did not

give due consideration to the impacts of the six year drought in

California. They contended that increased amounts of rainfall would

result in greater numbers of the fairy shrimp and the vernal pool

tadpole shrimp.

Service Response: The average and above average rainfall levels

that occurred in 1992/1993 did not reveal significant new populations

of the five species in unexpected areas because most vernal pools held

water, at least to some extent, during the drought that extended from

1987 to 1992. Even very small, shallow vernal pools were observed to

hold water, allowing reproduction of the four fairy shrimp and vernal

pool tadpole shrimp during these drought years (J. King pers. comm.

1992; M. Simovich pers. comm. 1992; Simovich et al. 1993). Also,

natural vernal pool complexes are expected to have some pools that at

least partially pond in drought years even though other pools may fill

only during years of average or above average precipitation.

Issue 16: Several commenters concluded that the data on the

crustaceans does not demonstrate a historic and consistent decline in

populations levels. One commenter stated that the data on the

Conservancy fairy shrimp, longhorn fairy shrimp, and the vernal pool

fairy shrimp is very limited because they were only recently described.

Service Response: Relatively little information is available to

reconstruct the distribution of the four species listed herein prior to

the loss of vernal pool habitat that began in the late 1800's. However,

the Service is required to evaluate species based on current and likely

future threats to their status. As discussed in this final rule,

numerous populations of the four species face severe, imminent threats

that could result in substantial habitat losses and extirpations in the

future. Since at least the mid-1980's, the human population has been

growing rapidly throughout the Central Valley and other regions of

California. Although three of the five crustaceans were described

scientifically in 1990, their distribution and abundance are

sufficiently documented relative to current and future threats to their

continued existence. Field samples made from vernal pools have

contained these three fairy shrimp prior to 1990. The earliest known

collections of the Conservancy fairy shrimp were made in 1979, the

vernal pool fairy shrimp in 1965, and the longhorn fairy shrimp in

1937.

Issue 17: The Contra Costa Water District reported that neither the

Los Vaqueros Reservoir alternative nor the Kellogg Reservoir

alternative would impact the single vernal pool complex inhabited by

the vernal pool fairy shrimp within the watershed (John Gregg, Los

Vaqueros Project, in litt., 1992).

Service Response: The Los Vaqueros Reservoir project likely would

result in adverse impacts to the California linderiella, vernal pool

fairy shrimp, and the longhorn fairy shrimp based on an analysis of the

environmental documents for this project (California Department of Fish

and Game 1983; John Gregg, Los Vaqueros Project, in litt., 1992; Jones

and Stokes 1986, 1989, 1990, 1991). On September 2, 1993, the Service

issued a conference opinion to the Bureau of Reclamation for the

effects of the Los Vaqueros Reservoir project on the three fairy shrimp

species.

Issue 18: One commenter stated that there are populations of the

crustacean species located on nature preserves and for this reason the

Service was urged to ``slow'' the listing process for these animals.

Four people noted that portions of three preserves owned by the Nature

Conservancy are inhabited by three of the fairy shrimp species and the

vernal pool tadpole shrimp. One commenter concluded that this assured

the long-term protection of these species. However, the other three

commenters stated that the preserves were either not specifically

managed for these animals or the sites are imperiled by activities on

adjacent properties.

Service Response: The Service recognizes that while some

populations of the fairy shrimp and vernal pool tadpole shrimp are

found on protected public and private lands, almost all are located in

areas that are not secure against adverse impacts to these animals.

Please refer to Factor D below, for an expanded discussion on

landownership patterns and protection for these species.

Issue 19: One commenter said the scientific articles containing

data on the fairy shrimp that were used by the Service are ``primitive

and unreliable'' and the taxonomy of these crustaceans is ``confused''.

However, four recognized crustacean biologists noted that the taxonomy

of fairy shrimp found in California had been reviewed recently in a

peer-reviewed scientific journal and the taxonomic status of these

species is widely accepted by current authorities.

Service Response: Using the best and most recent systematic

information from a number of reliable sources, including Eng et al.

(1990), D. Belk (pers. comm., 192), and M. Fugate (pers. comm., 1992),

the Service maintains that the Conservancy fairy shrimp, vernal pool

fairy shrimp, and the longhorn fairy shrimp are valid species and no

further taxonomic studies are needed.

Issue 20: Several respondents, including Congressman Wally Herger

contended that the vernal pool tadpole shrimp is a ``taxonomically

unstable species''. One commenter stated that taxonomic confusion

between Lemmon's tadpole shrimp (Lepidurus lemmoni) and the vernal pool

tadpole shrimp should be resolved prior to any listing decision.

Several commenters stated that the taxonomy of tadpole shrimps is

unresolved and recommended that the Service not list the animal.

Expressing a contrary position, three recognized authorities on

crustaceans provided information showing the vernal pool tadpole shrimp

is a biologically and taxonomically valid species. They reported that

the vernal pool tadpole shrimp is distinct in both morphology and

ecology from Lemmon's tadpole shrimp, which is restricted to alkaline

lakes is western North America.

Service Response: Using the best and most recent systematic

information from a number of reliable sources, including Lynch (1972)

and various crustacean biologists) (R. Brusca, in litt., 1992; M.

Simovich, in litt., 1992; J. King, in litt,. 1992), the Service

maintains that the vernal pool tadpole shrimp is a valid species and no

further taxonomic studies are needed.

Issue 21: Four respondents expressed concern that the Service was

going to list the ricefield tadpole shrimp (Triops longicaudatus) a

pest in rice fields in the Central Valley. They further stated that

protection of this animal would be an ``economic disaster'' for rice

growers of California. Alternatively, three recognized crustacean

authorities provided information showing that the rice field tadpole

shrimp is only distantly related to the vernal pool tadpool shrimp.

They stated that T. longicaudatus is known to occur in the Central

Valley only in rice fields while L. packardi is found only in vernal

pools. One of the crustacean biologists stated that based on genetic

studies, the two species are separated by genetic distances on the

order of those normally found between crustacean orders (J. King, in

litt., 1992). In addition, the four crustacean biologists noted that

the two species are morphologically distinct and are easily

distinguishable from each other.

Service Response: The findings in this final rule reflect the

published taxonomic literature and the expert opinion of recognized

crustacean biologists.

Issue 22: A number of commenters stated that Federal, State, and

local regulatory processes provide adequate protection for the

crustaceans. Two respondents said that listing would directly affect

agriculture, industrial, and commercial development in areas that have

been meticulously planned and subject to State laws such as the

California Environmental Quality Act (CEQA) and California Subdivision

Map Act. Some commenters noted the wetlands ``no-net-loss'' policies of

several State and county agencies, while other cited section 404 of the

Clean Water Act. On commenter analyzed data for a group of 29

development projects in the Sacramento area and found that 56 percent

of the vernal pools at these project sites had been preserved and 0.9

hectare (2.2 acres) of vernal pools provided as mitigation for each

acre impacted under Corps permit conditions pursuant to section 404

requirements. The commenter stated that this group of projects is

representative of the level of preservation afforded vernal pool

habitat in the Sacramento area and further concluded that this level of

protection may be equaled or exceeded for projects requiring section

404 permits throughout the range of the five species. Another commenter

noted that the Corps recently classified vernal pools at a proposed

project site in Sacramento County as ``aquatic resources of national

importance''. According to the commenter, this designation will cause

the Corps to more closely evaluate impacts to vernal pools from

proposed projects and thus provide significant protection to vernal

pool habitat for the five crustacean species during a six-month time

extension.

Expressing a contrary position, several other commenters noted that

Federal, State, and local laws have been ineffective in providing

protection for these species. The Mount Lassen Chapter of the

California Native Plant Society provided data on the destruction of two

vernal pool complexes known to have been inhabited by the vernal pool

tadpole shrimp in the City of Chico. They provided information on two

other vernal pool complexes in Chico that are located on properties

proposed for residential development. Another commenter stated that

vernal pools in Santa Rosa have been eliminated despite the protective

provisions of State law (CEQA). A number of respondents noted that

destruction of vernal pools commonly is allowed if an attempt is made

to create artificial habitat as compensation.

Service Response: While vernal pool habitat has been preserved

permanently under special conditions of section 404 permits for a

number of projects, significant areas of vernal pool habitat continue

to be lost in spite of the Corps jurisdictional authority to regulate

these wetlands under the Clean Water Act. Since 1987, the Service has

been tracking the Corps' implementation of Nationwide Permit 26 within

the area of responsibility of the Service's Sacramento Field Office. A

Service report produced in October 1992 showed that the Corps'

Sacramento District authorized filling of 189 hectares (467 acres) of

wetlands between 1987 and 1992 pursuant to Nationwide Permit 26 (U.S.

Fish and Wildlife Service 1992). During this same time period, the

Corps' San Francisco District authorized projects under Nationwide

Permit 26 that filled a total of 104 hectares (257 acres) of wetlands

of which 15.6 hectares (38.6 acres) were in the Santa Rosa Plain. The

report notes that these figures are conservative estimates because

notification of agencies for projects affecting less than 0.405

hectares (1.0 acre) are not mandatory. The Service estimates that a

majority of the wetland losses permitted in the Sacramento District

constitute vernal pools. In addition, between December 1, 1992, and

June 15, 1993, the Service identified 10 unauthorized projects in

Sacramento and Butte Counties that destroyed or damaged between 8.5 and

15 hectares (21 and 37 acres) of vernal pool habitat (D. Strait, pers.

comm., 1993). The projects were not authorized because landowners

either were not required or failed to comply with the regulatory

requirements of the section 404 permitting process. In addition, gravel

mines are proposed for significant areas in the Sacramento Valley,

including an approximately 404 hectare (1,000 acres) site south of

Mather Air Force Base that contains the California linderiella, vernal

pool fairy shrimp, and the vernal pool tadpole shrimp. Under recent

changes in the Corps of Engineers regulations, some gravel mining

activities will be regulated. However, in the past, most of these

activities were not subject to the provisions of the Clean Water Act.

In December 1992, the Department of the Interior signed a revised

Memorandum of Agreement with the Department of the Army that provides

an administrative process for requesting higher level review of

District Engineers' decisions on section 404 individual permit

applications. One criterion necessary for higher level review under the

Memorandum of Agreement is that the wetlands in question must

constitute ``aquatic resources of national importance.'' The ultimate

determination on whether the criterion is met will be made on a case-

by-case basis by the Assistant Secretary of the Army (Civil Works).

Requests for higher level review only apply to projects subject to

individual permits, not Nationwide permits. Projects determined by the

Corp's Sacramento District to quality for authorization under

Nationwide Permit 26 are not eligible for higher level review.

Department of the Army concurrence with the designation of vernal pools

at the project site at issue ``as aquatic resources of national

importance'' does not ensure application of additional protection to

vernal pools beyond that site (see discussion under Issue 29 and Factor

D, ``Summary of Factors Affecting the Species'', for a complete

discussion on the adequacy of existing regulatory mechanisms for the

four species listed herein). Such a designation must be made on a site-

specific basis and, by itself, does not necessarily effect any

protection of these resources. San Francisco District of the Corps

considered possible revocation of Nationwide Permit 26 in the Santa

Rosa Plain that would have ensured that all projects affecting wetlands

in this area would require authorization on an individual permit basis

and potential higher level review. However, the Corps decided instead

to impose stricter conditions on the use of Nationwide Permit 26 in

this area, including demonstration that no rare or endangered plant or

animal species are supported on the wetlands within any proposed

project site. The Corps also determined that individual permits would

be required on wetlands that support federally proposed or listed

threatened or endangered species. Regardless, of the four species

listed herein, only the California linderiella is found at the Santa

Rosa Plain and this area constitutes a small percentage of the overall

geographical range of the species. Therefore, any additional protection

afforded vernal pools in this area would not provide rangewide

protection of these animals.

Based on this and other information discussed under Factor D below,

the Service concludes that proposed and on-going damage or destruction

of vernal pools in California caused by urban and agricultural

development is prevalent despite existing Federal, State, and local

regulations and that existing levels of protection are not adequate to

assure the survival of these species.

Issue 23: One commenter completed a literature survey of three

reports that addressed trends in overall wetland losses throughout

California and the Central Valley, in particular. Essentially, this

commenter concluded that the historic trend of wetland losses

throughout California subsided in the mid-1980's and that current

wetland acreages actually are increasing in the State, apparently as a

result of the implementation of Federal wetland regulatory mechanisms.

Service Response: Methodological flaws and ambiguities in the

analysis conducted by this commenter invalidate the report's findings.

The most serious flaw is the comparison of wetland acreages in various

studies that focused on different geographic study areas. For example,

the two Service reports reviewed by the commenter cannot be used

together to draw conclusions on changes in wetland acreages because

data from the Central Valley and the entire State are not comparable.

Issue 24: Several commenters disputed the Service's statement in

the proposed rule that 90 percent of the original vernal pool habitat

throughout the Central Valley has been lost and that an estimated 2 to

3 percent of vernal pool habitat continues to be lost annually. Several

commenters contended that the study referenced by the Service actually

showed a 67 to 88 percent historic loss of vernal pool acreage. One

commenter further stated that additional interpretation and analysis of

the data used in the study revealed that historic losses were 63

percent. Based upon information contained in a separate document

prepared by the Service, other commenters asserted that the actual loss

more closely approximated 50 percent. After the comment period closed,

one respondent commented that preliminary results from a newly-

initiated soils data analysis indicate that the original estimates of

historic vernal pool losses in the Central Valley may be substantially

less than was identified in the proposed rule. Another late commenter

noted that U.S. Soil Conservation Service information supported recent

conclusions drawn by other soil scientists that 404,700 hectares (1

million acres) of soils suitable for vernal pool habitat remain from

809,400 hectares (2 million acres) determined to have historically

existed in the Central Valley, thus implying that historic losses were

close to 50 percent.

Service Response: After closer review of the referenced study

(Holland 1978), the Service discovered apparent arithmetic errors in

the estimates of historic vernal pool habitat (i.e., areas that could

have supported pools) losses. Correction of these errors yields

estimates of vernal pool habitat losses between 60 and 85 percent.

Accordingly, the Service finds that the study's corrected estimates of

historic vernal pool habitat loss in the Central Valley are reasonably

close to the range of estimates determined by those commenters who

criticized the study. Comments concerning a 50 percent habitat

reduction based upon a Service publication appear to be derived from

the Wetlands of the California Central Valley; Status and Trends 1939

to mid-1980's (Frayer et al. 1989), which estimated losses of

palustrine emergent wetlands. However, calculation of vernal pool

losses cannot be deduced from the numerous wetland types categorized as

``palustrine emergent wetlands.'' The results of the soils data

analysis under preparation by the commenter were not available for

review at the time of publication of this final rule.

The purpose of addressing historic vernal pool losses in the

proposed rule was to provide a historical context to the Central Valley

ecosystem inhabited by the four crustacean species. It was not the

intention, nor is it appropriate, to conduct an exhaustive analysis of

information pertaining to the history of vernal pool habitat losses

affecting the five crustacean species. Unverifiable and/or

contradictory information on the extent of former and current vernal

pool habitat will generate continued debate on this issue throughout

the foreseeable future. In a legal context, the extent of historic

habitat loss is of academic interest only, since the five factors at 50

CFR 424.11(c) under which species may qualify for listing look

prospectively to the future rather than retrospectively on the past.

The relevant issues are whether the current extent of fairy and tadpole

shrimp habitat is depleted and/or fragmented enough to render the

species vulnerable to extinction, or whether foreseeable threats

similarly threaten the species.

Issue 25: Eight commenters, including four mosquito abatement

districts, reported that vernal pools provided an important breeding

source for mosquitoes. They stated that the listing of the fairy shrimp

and the vernal pool tadpole shrimp, when coupled with the preservation

and creation of vernal pools next to residential areas, will create a

serious health risk to people. They were especially concerned about the

western encephalitis mosquito (Culex tarsalis), a vector of western

equine encephalitis and Saint Louis encephalitis. Some of the

respondents also expressed concern about mosquito-borne malaria and

yellow fever. A number of commenters stated that continued urban

development would result in greater numbers of people being affected by

mosquitoes and increase the need to control mosquitoes in vernal pools.

The four mosquito abatement districts were concerned that listing of

the crustaceans would increase the costs and restrictions on their

control activities.

Expressing a contrary position, four biologists stated that

mosquitoes rarely are found in vernal pools and swales that have not

been impacted by humans. They reported this is likely due to the

presence of the high abundance of predatory crustaceans and aquatic

insects that inhabit this ecosystem. A crustacean specialist noted that

mosquitoes were absent or not present in significant numbers in pools

inhabited by the fairy shrimp and the tadpole shrimp. Significant

numbers of mosquito larvae were found in areas that contain created

vernal pools or artificial bodies of water e.g., ditches and stock

ponds where the crustaceans are sparse or absent. One biologist

reported that no mosquito larvae were found in any of the 27 randomly

sampled vernal pools at Beale Air Force Base (Mary Ann Griggs, private

biologist, Colusa, California, in litt., 1992). However, mosquitos were

found in areas that had augmented water supply from a pressure release

valve on a well. The water supply produced a distinctively different

flora and fauna than nearby vernal pools. Commenting biologists stated

that the use of oil and mosquito fish (Gambusia affinis) will adversely

affect vernal pool fauna, including the three fairy shrimp and the

vernal pool tadpole shrimp, consequently allowing mosquitoes

populations to sue vernal pools where they otherwise are controlled or

eradicated by the nature pool fauna.

Service Response: The best information available to the Service

indicates that non-degraded vernal pools and swales do not provide a

significant breeding source for mosquitoes. Mosquitoes do not appear in

vernal pools until very late in the season, when they are unlikely to

complete their development before the pools dry (Wright 1991; Stan

Wright and Dave Brown, Sacramento-Yolo Mosquito Abatement District,

pers. comm., 1993). This pattern likely is due to the ecology of vernal

pool invertebrate communities rather than to oviposition timing of

female mosquitoes or to water chemistry, since (1) duck ponds in the

same area that fill at the same time as many vernal pools produce

mosquitoes throughout the wet season while vernal pools do not, and (2)

degraded pools and ruts without healthy vernal pool invertebrate

communities support mosquito populations while undisturbed vernal pools

in close proximity do not (S. Wright, pers. comm., 1993; J. King, pers.

comm., 1993; Christopher Rogers, Redding Mosquito Abatement District,

pers. comm., 1993).

Female mosquitoes are attracted to gases produced by fermentation

that indicate an abundance of decaying organic matter suitable for food

for mosquito larvae (S. Wright, pers. comm., 1993). This likely is the

cue used by females to select oviposition sites. Healthy vernal pools

appear to have tight nutrient cycling and relatively low levels of

decaying organic material, which makes them undesirable as oviposition

sites for gravid mosquitoes. Only late in the season when the abundance

of the invertebrates in vernal pools begins to decline are enough

nutrients and organic material available to make the vernal pools

attractive oviposition sites. By this time, however, it is often too

late for the mosquito larvae to develop before the pools dry.

Therefore, protecting vernal pools from disturbance and degradation can

prevent vernal pools from becoming mosquito breeding grounds, thereby

naturally preempting the need for artificial mosquito control in this

habitat.

Quantitative data collected from 64 vernal pools of widely varying

types, depths, and locations on a random 322 kilometer (200 mile)

north-south transect in the Central Valley from Fall River in Shasta

County to Jepson Prairie in Solano County over an entire season

indicate that mosquitoes are successful in breeding and developing only

in pools that have been disturbed or degraded, or late in the season

(J. King, pers. comm., 1993). Only about one third (34 percent) of the

64 pools studied were occupied by mosquito larvae or pupae. Most of

these pools had relatively low population densities of mosquitoes, and

in all of these pools mosquitoes were only present later in the season.

Of the 5 pools (8 percent) that did contain abundant mosquitoes, one

was an artificially created pool and another appeared to be degraded by

vehicular use and possibly discing.

The Service recognizes that there could be potential conflicts with

protection of the three fairy shrimp and the vernal pool tadpole shrimp

in implementing mosquito control programs. The Service will be working

with Federal, State, and local agencies, and examining additional

alternatives, such as the use of Bacillus thuringiensis var.

israelensis (Bti) and methoprene, to allow suppression programs to

continue. In this way, the Service is confident that Federal listing

will contribute to the survival of the four species and promote the

understanding of their vernal pool environment without jeopardizing

public health and safety.

Issue 26: Several commenters expressed concern that listing of the

crustaceans would curtail or eliminate cattle and livestock grazing in

areas containing vernal pools. Two crustacean biologists reported that

grazing by cattle and the crustacean species are compatible with each

other. They stated that moderate to low levels of grazing likely have

no adverse impacts on the fairy shrimp and the vernal pool tadpole

shrimp.

Service Response: The Service recognizes and acknowledges that low

to moderate levels of livestock grazing likely have no impact or may be

beneficial for these crustaceans. However, overgrazing in areas

containing the shrimp and their habitat likely is detrimental to these

species. High levels of pasture runoff may lead to increased siltation

of vernal pool habitat, and high livestock densities may cause changes

in pool water chemistry, water quality, and excessive physical

disturbances, such as trampling.

Issue 27: Several commenters reported the presence of the fairy

shrimp in non-vernal pool habitats, such as irrigation return ditches,

stock ponds, a backhoe pit, a gravel pit, and a depression left from

scraping. One commenter stated that a historic vernal pool habitat site

in southern Sacramento County that was disced, plowed, and farmed with

winter wheat still contained inundated depressions inhabited by the

vernal pool fairy shrimp and vernal pool tadpole shrimp. This example

was used to support the contention that these species can survive and

reproduce in degraded habitat. The commenter also noted that ``the site

was not leveled unlike other properties in the area, and still retained

some swale and hillock topography.'' (Bill Sugnet, Sugnet and

Associates, in litt., 1992). Another respondent, based on anecdotal

data, concluded that the habitat for the vernal pool fairy shrimp, and

the vernal pool tadpole shrimp has been insufficiently described. He

reported them from roadside ditches, scrapes, tire track depressions,

or similar man-made ephemeral pools from 28 locations in Sacramento

County (E.J. Koford, Ebasco Environmental, in litt., 1992). This

commenter asserted that herbicides and/or mechanical weed control at

sites located along some railroad tracks may have promoted the habitat

for these species. One crustacean biologist, based on discussions,

examination of photographs of these sites, and personal knowledge of

the area concluded that they are remnant or disturbed vernal pools (J.

King pers. comm., 1992).

Service Response: The Service has reviewed carefully the assertion

that the crustaceans are found in non-vernal pool habitat. A number of

the sites that served as the basis for this belief have been examined

by Service biologists and were found to represent degraded vernal pool

habitat or, in one case, an ephemeral wetland located in a gravel pit

that likely was colonized by fairy shrimp washed in from adjacent

vernal pools during periods of high rainfall. Based on the best

information available, the Service believes that a significant portion

of these records most likely represent ``unusual'' vernal pools (e.g.,

rock depression pools) or vernal pool habitat that was incorrectly

identified. Some of these records, such as roadside ditches, scraped

areas, and airport runoff ditches almost certainly represent remnant

vernal pool habitat or are part of the swale systems connected to

vernal pools. Lack of experience or familiarity with vernal pool

ecosystems likely has led some respondents to misinterpret these

observations. Most of these disturbed habitats also are imperiled by

urban development, gravel mining, and, in the cases of roadside

ditches, grading and spraying of herbicides for highway maintenance. In

addition, the accurate identification of fairy shrimp is extremely

difficult because the morphological characters required to

differentiate the various species are often extremely subtle and can be

misinterpreted by biologists not specifically trained in fairy shrimp

identification. Widespread, common species, such as Lindahl's fairy

shrimp, can be mistaken for other fairy shrimp species. Some of the

records of the California linderiella and vernal pool fairy shrimp in

non-vernal pool habitats may result from such misidentifications.

The potential for a fairy shrimp population to persist after

habitat disturbance varies from case to case, depending upon specific

circumstances, such as the nature and intensity of disturbance, how

much of the original egg bank was destroyed, and other factors. With

the exception of a few extremely rare cases, plowed fields that

historically held vernal pool habitat do not support populations of

these species. The example provided by the commenter is not typical of

agricultural operations, as is pointed out in the commenter's statement

that this site was ``unlike other properties in the

area . . .'' (B. Sugnet, in litt., 1992), with respect to the degree of

disturbance (i.e., leveling) and adverse modification of the vernal

pool habitat.

Issue 28: Many respondents contended that the proposed rule did not

reflect accurately the success of vernal pool ``creation'' efforts. For

example, a number of commenters claimed that artificial vernal pools,

primarily in Sacramento and Placer Counties, cited in Sugnet and

Associates (1992), were successful and were adequate mitigation for

adverse impacts to vernal pools resulting from urban development. Other

commenters asserted that ongoing creation ratios of 2:1 or greater and

the ability to transplant these animals makes it likely that the

habitat for these species will increase over time.

One commenter stated that the ability to successfully transplant

the eggs of fairy shrimp and tadpole shrimp is well known. One

submitted report (Sugnet and Associates 1992) asserted that the four

fairy shrimp and vernal pool tadpole shrimp have been shown in the

``literature and in field sampling to be extremely hardy and capable of

surviving long-term in greatly disturbed conditions and artificial

habitats''. The report also stated that there are technical papers that

demonstrate the ability to rear shrimp in the laboratory. The party

submitting this report stated that they have been creating vernal pools

as mitigation for development projects and monitoring the fairy shrimp

and tadpole shrimp for the past three years from 1989 to 1992. They

stated that although the presence of adult fairy shrimp may be due to a

certain number of eggs continuing to hatch from the initial inoculum in

successive years due to differences in physiochemical parameters, the

presence of mating individuals and gravid female fairy shrimp in

artificial pools, as well as historically degraded habitat, leads them

to conclude that natural reproductive mechanisms are still at work. The

report stated that the California linderiella and the vernal pool fairy

shrimp can be transplanted successfully from one vernal pool location

to another. The supporting data and criteria by which success was

determined were not specified in the report. Based partly on the above

information, numerous commenters stated that the fairy shrimp and

vernal pool tadpole shrimp were not imperiled.

On the other hand, one crustacean biologist stated that the reports

of successful vernal pool creation have been ``generally poorly

controlled, completely lacking in long-term monitoring, and do not

appear in the peer reviewed scientific

literature * * *'' (J. King, in litt., 1992). In addition, this

commenter reported that ``contrary to common misconception these

organisms [vernal pool tadpole shrimp] are not easily raised outside of

their natural habitat.'' This crustacean specialist stated that their

efforts to maintain viable reproductive vernal pool tadpole shrimp in

the laboratory have been unsuccessful. Another biologist pointed out

that long-term studies of the effect of mixing genotypes in created

pools likely are adversely impacting the fairy shrimp and the vernal

pool tadpole shrimp (M. Simovich, in litt., 1992).

Eight biologists specializing in crustaceans or plants inhabiting

vernal pools stated that these habitats are an intricate ecosystem and

efforts to recreate them likely will not be successful until they are

more fully understood. Furthermore, six fairy shrimp specialists

concluded that protection of these animals is best assured via the

preservation of extant habitat and its associated community.

Service Response: In a review of 21 vernal pool creation projects

dispersed throughout California, Ferren and Gervitz (1990) concluded

that no conclusive data exist to substantiate the hypothesis ``that

vernal pools can be restored or created to provide functional values

within the range of variability of natural pools.'' Though some

individuals (Sugnet and Associates et al. 1992) have claimed complete

or some degree of success, these conclusions generally are based on

anecdotal unscientific studies and the persistence of fairy shrimp

after only a short period of time, e.g., three years or less. Moreover,

the principal pool creation technique (i.e., relocation of soil from

excavated pool bottoms versus inoculation of a known quantity of eggs)

and lack of scientifically designed monitoring do not allow for

collection of the necessary data to determine the long-term population

viability of transplanted species.

In a study on the preservation and management of vernal pools

(Jones and Stokes Associates 1990), the researchers concluded that the

``science of vernal pool creation is still in its infancy and is

primarily an experimental mitigation technique.'' Environmental

requirements, not dispersal, is likely the limiting factor in the

distribution of the fairy shrimp and the vernal pool tadpole shrimp (D.

Belk, pers. comm., 1992). The four species in this final rule require

unknown, but more restrictive environmental conditions than more widely

distributed taxa (J. King, in litt., 1992; M. Simovich, in litt., 1992;

R. Brusca, pers. comm., 1992). There are no demonstrated proven long-

term populations of the fairy shrimp or the vernal pool tadpole shrimp

in artificial habitats.

Artifically created habitats also may increase the threat of

hybridization between the four fairy shrimp and other more widespread

species. For example, Lindahl's fairy shrimp is a widespread species

found in western North America that inhabits a wide array of

conditions, ranging from pools whose salinity is high enough to support

brine shrimp (Artemia sp.) to snow melt pools. Poorly planned, careless

construction, or haphazard placement of the substrate during vernal

pool creation may enhance conditions for species like Lindahl's fairy

shrimp. Laboratory studies have shown that Lindahl's fairy shrimp and

the vernal pool fairy shrimp readily hybridize in the laboratory and

produce viable first generation hybrids (Fugate, pers. comm., 1992).

There is evidence that hybridization between other fairy shrimp has

occurred in the field because of human actions. Belk (1977) reported

that the westward dispersal from Texas and New Mexico of a desert fairy

shrimp (Streptocephalus dorothae) across extensive expanses of arid

land into Arizona may be due to the cattle ponds and livestock watering

holes that were built after the 1800's in the region. Wiman (1979)

reported that viable hybrid offspring are produced by this species and

Mackin's desert fairy shrimp (Streptocephalus mackini), a resident

species in Arizona.

Given these uncertainties associated with vernal pool creation, the

Service maintains that transplanting target species (e.g., listed,

proposed, and candidate species) into artificial pools cannot be

considered adequate replacement for the loss of occupied vernal pool

habitat. Even if such transplantation of the fairy shrimp and the

vernal pool tadpole shrimp and creation of their habitat were

documented to be a proven procedure rather than an evolving problematic

venture, artificial pool creation for the species listed herein would

not fulfill the mandates of section 2 of the Act, which require the

Service to develop programs that conserve the ecosystems upon which

listed species depend. As discussed elsewhere herein, natural habitats

throughout the ranges of the four species have been damaged or

eliminated. As a result, the Service concludes that the continued

survival and recovery of the three fairy shrimp and the vernal pool

tadpole shrimp only can be assured, at this time, by the preservation

of extant vernal pools and their associated watersheds.

Issue 29: Several comments were received questioning the

relationship between the Endangered Species Act and the Fifth Amendment

to the U.S. Constitution (e.g., ``taking'' without just compensation).

Service Response: The mere promulgation of a regulation, such as

the enactment of a statute, is rarely sufficient to establish that

private property has been taken unless the regulation on its face

denies the property owner the economically viable use of his property.

Listing pursuant to the Endangered Species Act does not automatically

restrict all uses of one's land. A property owner cannot establish that

his property has been taken as a result of a regulatory action such as

the listing of a species until he has first submitted a proposal to

develop the property and has received a determination as to the level

of development that will be allowed. The property owner must apply for

all available permits and waivers before a taking could potentially be

established. With respect to listing, this means that no takings can be

established until the property owner complies with section 10(a) of the

Act and the Service concludes that no permit to take incidental to an

otherwise lawful activity will be issued.

Issue 30: The Service received a comment that requested an

explanation of the applicability of Hoffman Homes Inc. v. EPA to vernal

pools.

Service Response: Hoffman Homes Inc. v. EPA, 916 F.2d 1310 (7th

Cir. 1992) held that an isolated wetland, with no shown effect on

interstate commerce, was not within EPA's nor the Corps of Engineers'

jurisdiction to regulate. That decision was vacated in the same year

(Hoffman Homes Inc. v. EPA, 975 F.2d 1554) and the issue reheard by the

same court in 1993 (Hoffman Homes Inc. v. EPA, 999 F.2d 256). In its

final interpretation of the issues presented in that case, the court

held that waters whose use, degradation, or destruction could affect

interstate commerce, were waters appropriately regulated by EPA and/or

the Corps (emphasis added). Based upon the facts as presented in that

case, however, the court could not find sufficient evidence to support

a conclusion that the wetland in question could potentially affect

interstate commerce. As such, the court determined this particular

water body to be outside the realm of EPA or Corps jurisdiction.

The Service is not aware how the EPA or Corps view this case

relative to vernal pools. Regardless of the interpretation, however, it

is the animal (as opposed to habitat) for which the Endangered Species

Act will afford protection with this final regulation. Should it be

determined that neither the Corps nor EPA have jurisdiction over these

wetlands, and that section 7 is not therefore applicable, then the

property owner may comply with the Endangered Species Act through

section 10 of the Act.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, the Service has determined that the Conservancy fairy shrimp

(Branchinecta conservatio Eng et al.), longhorn fairy shrimp

(Branchinecta longiantenna Eng et al.), and the vernal pool tadpole

shrimp (Lepidurus packardi Simon) should be classified as endangered

species; and the vernal pool fairy shrimp (Branchinecta lynchi Eng et

al.) should be classified as a threatened species. Procedures found at

section 4(a)(1) of the Endangered Species Act (16 U.S.C. 1531 et seq.)

and regulations (50 CFR part 424) promulgated to implement the listing

provisions of the Act were followed. A species may be determined to be

endangered or threatened due to one or more of the five factors

described in section 4(a)(1). These factors and their application to

the Conservancy fairy shrimp (Branchinecta conservatio), longhorn fairy

shrimp (Branchinecta longiantenna), vernal pool fairy shrimp

(Branchinecta lynchi), and the vernal pool tadpole shrimp (Lepidurus

packardi) are as follows:

A. The present or threatened destruction, modification, or

curtailment of their habitat or range. All three fairy shrimp and the

vernal pool tadpole shrimp are restricted to vernal pools in

California. The habitat of these animals is imperiled by a variety of

human-caused activities, primarily urban development, water supply/

flood control activities, and conversion of land to agricultural use.

Habitat loss occurs from direct destruction and modification of pools

due to filling, grading, discing, leveling, and other activities, as

well as modification of surrounding uplands that alters vernal pool

watersheds.

Rapid urbanization of areas containing vernal pools poses a

significant threat to the four species included in this final rule. In

the Central Valley, at least five pool complexes that were known to

contain suitable habitat for the vernal pool fairy shrimp and the

vernal pool tadpole shrimp were eliminated by urban development in the

late 1980's. Mitigation measures were either lacking or unsuccessful.

In general, the growth rate of human populations and associated urban

development throughout the Central Valley is equal to or exceeds that

of any other region in California. Indicative of this growth rate are

proposals to develop several new towns within the ranges of the vernal

pool fairy shrimp and the vernal pool tadpole shrimp. As an example,

two towns proposed in Placer and San Joaquin Counties would support

80,000 and 44,000 people, respectively, and likely would impact

significant amounts of vernal pool habitat for these species (Laver

1991, Wiegand 1991).

Vernal pools in the Redding area that likely provided habitat for

the vernal pool fairy shrimp and the vernal pool tadpole shrimp have

been impacted significantly by urban development and agricultural

conversion. Aerial photographs of an approximately 61-hectare (150

acre) area near the Redding Municipal Airport document that development

occurring between 1952 and 1992 resulted in the loss of 62 percent and

the degradation of 37 percent of the original vernal pools in this

vernal pool complex (Jim Nelson, California Fish & Game, pers. com.,

1993). The remaining pools at this site are inhabited by the vernal

pool fairy shrimp and the vernal pool tadpole shrimp. Vernal pool areas

around the airport have been zoned for enterprise, and sewer lines have

been installed in anticipation of development. Several proposed

residential development projects in the Redding area (e.g., Argyle West

and Eagle Crest projects) also would adversely affect the vernal pool

fairy shrimp and the vernal pool tadpole shrimp. A proposed electrical

transmission line also threatens several pools in the area. Eucalyptus

farms have been established on many historic vernal pool sites around

Redding and future groves are planted at the rate of approximately 810

hectares (2,000 acres) per year (J. Nelson, California Department of

Fish and Game, pers. comm. 1993).

In the Chico area, certain areas inhabited by the vernal pool

tadpole shrimp recently were ditched and drained (Patrick Kelly, Mount

Lassen Chapter of the California Native Plant Society, in litt., 1992).

In addition, at least four residential developments proposed in Chico,

including the Simmons Ranch, Foothill Park, Sierra Technology, and

Bidwell Ranch projects are proposed that would eliminate approximately

810 hectares (2,000 acres) of habitat containing vernal pools inhabited

by the vernal pool tadpole shrimp. No specific mitigation measures are

included in these projects for this animal.

Numerous residential and commercial development projects in the

Sacramento area pose a severe threat to vernal pool complexes inhabited

by populations of the vernal pool fairy shrimp and vernal pool tadpole

shrimp. These proposed and ongoing projects, sponsored by Federal,

State and local agencies, private interests, and local governments,

include, but are not limited to the closure of Mather Air Force Base,

modifications to Strawberry, Elk Grove, and Laguna Creeks, two proposed

surface gravel mines, and numerous residential developments including

the Elliot Ranch South, Churchill Downs, Elk Ridge Estates, and

Sunrise-Douglas projects.

Urban development and agricultural conversion imperil populations

of the vernal pool fairy shrimp and vernal pool tadpole shrimp in the

San Joaquin Valley. Castle Air Force Base is undergoing closure and the

U.S. Bureau of Prisons has proposed to build a prison on vernal pools

at this site known to contain the two fairy shrimp. The Corps has

proposed the Merced County Streams project that would facilitate urban

development in many areas that provide suitable habitat for the vernal

pool fairy shrimp and the vernal pool tadpole shrimp. Numerous projects

between Stockton and Bakersfield also would adversely impact the three

species, including the Mueller Ranch gravel mine in Stanislaus County,

a number of residential developments in San Joaquin County (e.g., the

Liberty project would affect approximately 2,000 vernal pools), the

Yosemite Lake project in Merced County, and the Ball Ranch project in

Fresno County.

Areas in the San Francisco Bay area that contain vernal pools also

are undergoing substantial urban development. Vernal pools inhabited by

the vernal pool fairy shrimp in the Livermore area of Alameda County

have been adversely impacted by urban development, agriculture, and

alteration of the hydrology of Altamont Creek (Alan Launer, Stanford

University Center for Conservation Biology, in litt., 1992). The City

of Livermore is evaluating land use options that could result in the

conversion of 3,002 hectares (7,420 acres) of natural habitat,

including vernal pools that provide suitable habitat for the vernal

pool fairy shrimp, to urban use for up to 30,000 people (City of

Livermore 1992; Susan Frost, Livermore Planning Department, pers.

comm., 1993). The proposed expansion of the municipal airport at Byron

Hot Springs in eastern Contra Costa County will eliminate a number of

pools inhabited by the vernal pool fairy shrimp.

Other vernal pools located in San Luis Obispo County, including

most of the known populations of the longhorn fairy shrimp and at least

one population of the vernal pool fairy shrimp, are located in

subdivided areas with constructed roads and lots for sale and

development (Eng et al. 1990; Dave Chipping, Amateur biologist, in

litt., 1992). To date, some of the sites have been cleared and

continued habitat loss is ongoing or impending. The Coastal Branch

Phase II (Coastal Aqueduct) of the State Water Project, proposed by the

California Department of Water Resources (Carol Nelson, California

Department of Water Resources, in litt., 1993), annually would convey

70,000 acre-feet of water from the Delta region of California to San

Luis Obispo and Santa Barbara Counties. It is unclear if this source of

water would allow urban development of the Soda Lake area, however, the

longhorn fairy shrimp and the vernal pool fairy shrimp may be adversely

affected by commercial development made possible by this project.

A 36-hectare (14 acre) vernal pool located at Skunk Hollow in

Riverside County containing a population of the vernal pool fairy

shrimp likely will be adversely affected by urban development and

possibly agricultural conversion (Art Davenport, Fish and Wildlife

Service, pers. comm., 1994; Joseph Jolliffe, Riverside County Planning

Department, in litt., 1992). The Rancho Bella Vista residential project

would impact this vernal pool and, along with other major roadways,

also impact the surrounding watershed (Joseph Jolliffe, in litt.,

1992). Skunk Hollow also contains a population of the Riverside fairy

shrimp (Streptocephalus woottoni), an endangered species (58 FR 41384).

Because of rapid urbanization, several highway projects are

proposed that may affect the vernal pool fairy shrimp and the vernal

pool tadpole shrimp. Vernal pools in the Sacramento area inhabited by

the vernal pool fairy shrimp and the vernal pool tadpole shrimp would

be affected adversely by the proposed widening of State Highway 16 in

Sacramento County. The State of California has proposed to extend State

Highway 505 from Vacaville to Collinsville in Solano County; this

project directly and/or indirectly would impact vernal pools inhabited

by the Conservancy fairy shrimp and the vernal pool tadpole shrimp (C.

Goude, pers. comm., 1993). Vernal pools inhabited by the vernal pool

tadpole shrimp may be affected by improvements to Highway 70 near

Gridley in Butte County (Chris Collison, California Department of

Transportation, pers. comm., 1993).

Agricultural conversion poses a widespread threat to remaining

vernal pools in the Central Valley. Sites containing fairy shrimp near

Pixley in Tulare County and Haystack Mountain in Merced County are

pockets of privately owned habitat remnants threatened by surrounding

agricultural operations (Eng et al. 1990). A 148-hectare (365 acres)

site with vernal pools adjacent to State Highway 41 north of Fresno in

Fresno County that likely contained the vernal pool fairy shrimp was

disced and graded in 1992 (Dames and Moore 1992). Two sites with vernal

pools in the Sacramento Valley recently were plowed or disced and

seeded with winter wheat, apparently in preparation for future urban

development (C. Goude, pers. comm., 1993). Almond and fruit orchards in

Stanislaus, Madera, and Fresno Counties continued to be planted in

habitat suitable for the vernal pool fairy shrimp and the vernal pool

tadpole shrimp (J. King pers. comm. 1993; K. Geer and J. Browning,

U.S.F.W.S., pers. obs. 1994).

Water supply/flood control activities also generally present a

degree of disturbance to affected pools that would preclude survival of

any substantial fraction of the populations. The timing, frequency, and

length of inundation of the vernal pool habitat are critical to the

three fairy shrimp and the vernal pool tadpole shrimp; any substantial

hydrologic change in these factors adversely affect the four species.

Diversion of watershed runoff feeding the pools can result in premature

pool dry-down before the life cycle of these animals is completed. The

three species of fairy shrimp and the vernal pool tadpole shrimp also

are intolerant of flowing water that washes away the egg bank.

Supplemental water from outside the natural watershed into vernal pools

can change the habitat into a marsh-dominated or a permanent aquatic

community that is unsuitable for the four species of vernal pool

shrimps. The modification of vernal pool areas to create artificial

reservoirs, such as the Modesto Reservoir and Turlock Lake in

Stanislaus County, have led to the extirpation of the vernal pool

tadpole shrimp population that was known to occur in the vernal pools

where these reservoirs now lie (J. King, pers. comm., 1993). Vernal

pool watershed areas have been reduced by conversion of uplands to

paved or grass-turf surfaces, by damming of swales caused by road

construction, or other construction activities. Physical barriers, such

as roads and canals, unsuitably deepen a vernal pool upstream of a

barrier, and can isolate a fairy shrimp or vernal pool tadpole shrimp

population from a portion of its aquatic habitat. Surface runoff,

including non-point runoff, is altered by disturbance from trenching,

grading, scraping, off-road vehicles, intensive livestock grazing, or

other activities that change amounts, patterns, and direction of

surface runoff to ephemeral drainages. Presence of summer water also

affects the hydrologic pattern. Introduction of water during the summer

disrupts the life cycles of the fairy shrimp and the vernal pool

tadpole shrimp by subjecting them to greater levels of predation by

animals requiring more permanent sources of water. Increased water also

converts vernal pools to unsuitable marsh habitat dominated by emergent

vegetation (e.g., cattails).

Direct and associated indirect impacts from the proposed Los

Vaqueros Project, a water-storage project in the Kellogg Creek

watershed of eastern Contra Costa County, would adversely impact two

vernal pool complexes that support the highest diversity of fairy

shrimp in the State (California Department of Fish and Game 1983). The

rock pools in this area are inhabited by the vernal pool fairy shrimp

and the longhorn fairy shrimp (John Gregg, Los Vaqueros Project, in

litt., 1992). Proposed construction of a major roadway, high-pressure

natural gas and petroleum pipelines, and 230,000 kV electrical

transmission lines at the Los Vaqueros Reservoir site would adversely

affect these species (Jones and Stokes Associates 1986, 1989, 1990,

1991).

Several proposed utility projects have the potential to affect all

of the three fairy shrimp and the vernal pool tadpole shrimp. For

example, the Pacific Gas Transmission Company--Pacific Gas and Electric

natural gas pipeline project extending from the Canadian border along

the west side of the Sacramento Valley to Fresno County has adversely

impacted a number of vernal pools containing the vernal pool fairy

shrimp, Conservancy fairy shrimp, and the vernal pool tadpool shrimp

(Federal Regulatory Energy Commission 1991; Arnold 1990; C. Nagano,

pers. obs., 1992 and 1993). The Service has issued a conference opinion

to the Federal Energy Regulatory Commission on a portion of this

project that will adversely impact the vernal pool fairy shrimp;

however, the applicant has indicated the mitigation measures will not

be implemented if the species is not listed (John Cassady, PGT-PG&E

Pipeline Expansion Project, in litt., 1993).

Off-road vehicle (ORV) use also imperils fairy shrimp and the

vernal pool tadpole shrimp inhabiting vernal pools (Bauder 1986, 1987).

ORVs cut deep ruts, compact soil, destroy native vegetation, and alter

pool hydrology. Fire fighting, security patrols, military maneuvers,

and recreational activities cumulatively have damaged vernal pool

habitats in many areas (Bauder 1986, 1987). In Solano County, an off-

road vehicle park adjacent to the Jepson Prairie Reserve owned by the

Nature Conservancy could adversely impact populations of the

Conservancy fairy shrimp and the vernal pool tadpole shrimp.

Other secondary impacts associated with urbanization include

disposal of waste materials into habitat for the four species included

in this final rule (Bauder 1986, 1987). Disposal of concrete, tires,

refrigerators, sofas, and other trash adversely affects these animals

by eliminating habitat, disrupting pool hydrology or, in some cases,

through release of toxic substances. Dust and other forms of air or

water pollution from commercial development or agriculture projects

also may be deleterious to these animals.

Filling of vernal pool wetlands without authorization from the

Corps also poses a threat to these species (Tricia Richards, Sacramento

County Planning and Community Development Department, in litt, 1991: D.

Strait, pers. comm., 1993). In Stanislaus County, a site with 61

hectares (150 acres) of vernal pool habitat that was potentially

inhabited by the vernal pool fairy shrimp was converted to irrigated

pasture in 1990 (Martha Naley, U.S. Fish and Wildlife Service, pers.

comm., 1991). A 112 hectare (275 acre) site containing vernal pool and

swale habitat for the vernal pool tadpole shrimp in the Jepson Prairie

area in Solano County was destroyed by discing in October 1992 (C.

Nagano and J. Knight, pers. obs., 1992).

The Service is aware of 10 actions in the last 2 years in the

Sacramento Valley, including agricultural conversion and urban

development, that have resulted in the damage or destruction of as many

as 17 hectares (43 acres) of vernal pools, exclusive of associated

watersheds, that likely provided habitat for the vernal pool fairy

shrimp and vernal pool tadpole shrimp (Dan Strait, U.S. Fish and

Wildlife Service pers. comm., 1993). Some of these activities were

undertaken without authority under the Clean Water Act. At least one of

these parties likely intended to alter the elevations of the site to

eliminate one or more of the parameters used by the Corps to define a

wetland according to their 1987 jurisdictional manual. Other similar

deliberate activities that are damaging or destroying vernal pools are

likely occurring throughout the Central Valley (D. Strait, pers. comm.,

1993). The Service is concerned that unless a final rule for the four

species is issued and effective immediately upon publication, this may

result in landowners knowingly destroying the habitat of these animals.

Previously, this has occurred with other endangered species that

inhabit vernal pools in the Santa Rosa area of Sonoma County (C. D.

Nagano and J. C. Knight, U.S. Fish and Wildlife Service, pers. obs.,

1992). Because of the immediate threat posed by these on-going

activities, the Service finds that good cause exists for this rule to

take effect immediately upon publication in accordance with 5 U.S.C.

553(d)(3).

B. Overutilization for commercial, recreational, scientific, or

educational purposes. Not known to be applicable.

C. Disease or predation. The three fairy shrimp and the vernal pool

tadpole shrimp are a food item in the diet of migratory waterfowl and

other native animals (Krapu 1974; Swanson et al. 1974; J. King, pers.

comm., 1992). However, this naturally occurring predation is not

considered a threat to the continued existence of these crustaceans.

Introduction of the bullfrog (Rana catesbeiana) to areas inhabited

by the vernal pool tadpole shrimp appears to increase the threat of

predation facing this crustacean. These amphibians are voracious

predators on many species of native and exotic animals. Large numbers

of vernal pool tadpole shrimp were found in stomach content analysis of

bullfrogs captured in vernal pools in the Chico area (Marc Hayes,

Oregon State University, pers. comm., 1993; Robert Fisher, University

of California, pers. comm., 1993). Although bullfrogs are unable to

establish permanent breeding populations in vernal pools, dispersing

immature males take up residence in these areas during the rainy season

(Mark Jennings, U.S. National Biological Survey, pers. comm. to Peter

Sorensen, 1994). A number of bullfrogs were observed at Jepson Prairie

during the winter of 1992/1993 (C. Nagano, pers. obs. 1992/93).

Vernal pool tadpole shrimp were found to have been parasitized by

flukes (Trematoda) of an undetermined species at the Vina Plains,

Tehama County (Ahl 1991). The gonads of both sexes were greatly reduced

in size and their body cavities were filled with many young flukes

(metacercariae). Ahl concluded that parasitic castration was the major

limiting factor affecting reproduction of the vernal pool tadpole

shrimp at the Vina Plains. The range and extent of this parasite is

unknown.

There are no known diseases affecting the three fairy shrimp and

the vernal pool tadpole shrimp.

D. The inadequacy of existing regulatory mechanisms. The primary

cause for the decline of these species is loss of habitat from human

activities. State and local laws and regulations have not been passed

to protect the four species included in this final rule. Other

regulatory mechanisms necessary for the conservation of vernal pools

have proven inadequate and ineffective.

The environmental review process under the California Environmental

Quality Act for projects that result in loss of habitats that support

these animals sometimes requires development and implementation of

mitigation plans. However, the effectiveness of this statute in

protecting vernal pool habitat has not been consistent. As documented

above, fairy shrimp and vernal pool tadpole shrimp habitat typically

has been eliminated without offsetting mitigation measures. Most

mitigation plans that have been required were designed specifically for

vernal pool plants. The artificial creation of vernal pools as

compensatory mitigation has not been proven scientifically to be

successful (Ferren and Gevirtz 1990; Zedler and Black 1988; J. King, in

litt., 1992; M. Simovich, in litt., 1992; R. Brusca, in litt., 1992).

Under section 404 of the Clean Water Act, the Corps regulates the

discharge of fill material into waters of the United States, which

include navigable waters, wetlands (e.g., vernal pools), and other

waters. The Clean Eater Act requires project proponents to obtain a

permit from the Corps prior to undertaking many activities (grading,

discharge of soil or other fill material, etc.) that would result in

fill of wetlands. The Corps promulgated Nationwide Permit 26 to address

fill of isolated or headwater wetlands totalling less than 4 hectares

(10 acres). Under Nationwide Permit 26, proposals that involve fill of

wetlands less than one acre are considered authorized. Where fill would

aversely modify between 0.4 and 4.0 hectares (one and 10 acres) of

wetland, the Corps circulates for comment a predischarge notification

to the Service and other interested parties to determine whether or not

an individual permit should be required for fill activity and

associated impacts.

Individual Corps permits are required for discharge of fill

material that would fill or adversely modify greater than 4 hectares

(10 acres) of wetlands. The review process for individual permits is

more rigorous than for nationwide permits. Unlike nationwide permits,

an analysis of cumulative wetland impacts is required for individual

permit applications. Resulting permits may include special conditions

that require potential avoidance or mitigation for environmental

impacts. On nationwide permits, the Corps has discretionary authority

to require an individual permit if the Corps believes that resources

are sufficiently important, regardless of the wetland's size. In

practice, however, the Corps generally does not require an individual

permit when a project qualifies for a nationwide permit, unless a

threatened or endangered species or other significant resources would

be adversely affected by the proposed activity. Most vernal pools and

swales within the range of these three species of fairy shrimp and the

vernal pool tadpole shrimp encompass less that 4 hectares (10 acres).

The discontinuous distribution of these sites has allowed some

landowners to divide large projects into several smaller projects.

Wetland acreage on these smaller projects is usually under 4 hectares

(10 acres), and therefore, most projects qualify for Nationwide Permit

26. Discing and other farming or ranching practices, including

overgrazing, can destroy vernal pool habitat without a permit from the

Corps because many of these activities are exempt from regulation under

the Clean Water Act. The discontinuous configuration of the pools and

swales further obscures separation of these wetland losses.

The Sacramento District of the Corps has several thousand vernal

pools under its jurisdiction (Coe 1988), which includes most of the

geographic range encompassing the four species listed herein. Areas

occupied by these animals are undergoing rapid urbanization and current

trends indicate 60 to 70 percent of these pools could be destroyed in

the next 10 to 20 years (Coe 1988).

The Conservancy fairy shrimp, vernal pool fairy shrimp, and the

vernal pool tadpole shrimp are found in vernal pools within the Vina

Plains in Tehama County. They likely are found in the vicinity of

ephemeral swales and drainages that support Limnanthes floccosa ssp.

calfornica (Butte County meadowfoam). This plant was listed as an

endangered species on June 8, 1992 (57 FR 24192). These crustaceans

could be protected indirectly by actions taken to conserve the Butte

County meadowfoam. A ``conservation plan'' has been drafted for the

City of Chico (Jokerst 1989) that details various actions designed to

conserve the plant, such as creation of a preserve system. However, the

draft plan does not address plant populations and vernal pool habitat

outside city limits. Moreover, the City of Chico has yet to adopt the

plan. Meanwhile, typical of other vernal pool areas, the Corps

continues to use nationwide permits to authorize numerous residential

developments in the Chico area.

The Conservancy fairy shrimp and the longhorn fairy shrimp each

have portions of one population on lands under public ownership.

Portions of four populations of the vernal pool fairy shrimp are on

lands under public ownership. Portions of eight populations of the

vernal pool tadpole shrimp are on lands under public ownership. The

Nature Conservancy owns or controls portions of vernal pool habitat,

including Jepson Prairie in Solano County, Vina Plains in Tehama

County, the Carrizo Plain in San Luis Obispo County, and Santa Rosa

Plateau area in Riverside County. All three fairy shrimp species and

the vernal pool tadpole shrimp occur on Conservancy property.

Management plans for some Federal, State, local, and Conservancy

properties include provisions to protect vernal pools but none

specifically address these species. Surrounding privately owned vernal

pool habitat and watershed are not protected.

E. Other natural or man-made factors affecting their continued

existence. The pools and, in some cases, pool complexes supporting the

fairy shrimp species and the vernal pool tadpole shrimp are usually

small and unforeseen natural and man-caused catastrophic events

threaten the elimination of some sites. Many of the known populations

of the four species are comprised of single or less than five pools

(e.g., 3 of 6 Conservancy fairy shrimp populations, 1 of 3 longhorn

fairy shrimp populations, 20 of 34 vernal pool fairy shrimp

populations, 1 of the 18 vernal pool tadpole shrimp populations). In

many cases, these populations are remnants of larger, multi-pool

populations that originally existed in historic vernal pool complexes.

Such populations are important for their genetic uniqueness, which has

been documented for the Conservancy fairy shrimp and the vernal pool

tadpole shrimp (Fugate 1993; J. King pers. comm. 1992). However, these

important populations are those that have the most tenuous chances for

long-term persistence due to population bottlenecks in conjunction with

low gene flow between populations (J. King pers. comm. 1993).

Additionally, some of the areas with the largest populations (i.e.,

greatest number of vernal pools remaining in pool complexes) are

currently under threat of fragmentation by numerous proposed projects

(e.g., Sacramento and Placer Counties).

The four crustaceans in these small habitat patches are vulnerable

to random fluctuations or variation (stochasticity) due to annual

weather patterns and availability of food and other environmental

factors superimposed on the cumulative threats described throughout

this rule. The populations of the four species are isolated from other

conspecific populations and are distributed in discontinuous vernal

pool systems. Such populations are vulnerable to stochastic extinction.

The breeding of closely related individuals may cause genetic problems

in small populations of the four species, particularly in the

expression of deleterious genes (known as inbreeding depression).

Individuals and populations possessing deleterious genetic material are

less able to cope with environmental conditions and adapt to

environmental changes, even relatively minor ones. Further, small

populations are subject to the effects of genetic drift (the random

loss of genetic variability). The phenomenon also reduces the ability

of individuals and populations to respond successfully to environmental

stresses. Overall, these genetic factors could influence the

survivability of isolated populations of each of the three fairy shrimp

and the vernal pool tadpole shrimp.

The Service has carefully assessed the best scientific and

commercial information regarding past, present, and future threats

faced by these species in determining to issue this final rule. Based

on this evaluation, the preferred action is to list the Conservancy

fairy shrimp, longhorn fairy shrimp, and the vernal pool tadpole shrimp

as endangered; and the vernal pool fairy shrimp as threatened. The

three fairy shrimp and the vernal pool tadpole shrimp are imperiled by

rapid urbanization, conversion of land to agricultural use, off-road

vehicle use, and changes in hydrologic patterns in areas they occupy.

Only a small proportion of the pools are permanently protected from

these threats. Numerous ongoing and proposed development projects pose

an imminent threat to the three fairy shrimp and the vernal pool

tadpole shrimp. Extraordinary increases in human populations and

associated pressures from urban development have rendered existing

regulatory mechanisms inadequate. Stochastic events, which commonly

affect small isolated populations, also may result in extirpation of

some populations of these species. Four of the six known populations of

the Conservancy fairy shrimp are imperiled. There are threats to the

four known populations of the longhorn fairy shrimp. Twenty-eight of

the 32 known populations of the vernal pool fairy shrimp are under

threat. Fourteen of the 18 known populations of the vernal pool tadpole

shrimp are imperiled. Because the Conservancy fairy shrimp, longhorn

fairy shrimp, and the vernal pool tadpole shrimp are in danger of

extinction throughout all or a significant portion of their ranges,

these species fit the definition of endangered as defined in the Act.

Because the vernal pool fairy shrimp is likely to become an endangered

species within the foreseeable future throughout all or a significant

portion of its range, this species fits the definition of threatened as

defined in the Act.

The Service considers the change in the listing status from

endangered to threatened of the vernal pool fairy shrimp to be

warranted based on two factors. Since the proposed rule was published,

data gathered by Sugnet and Associates (1993b) and information

otherwise available to the Service indicate that the geographic extent

and number of populations and subpopulations of this species are larger

than was originally known. The distribution of the species is not so

fragmented as to reduce the likelihood of recolonization. As mentioned

previously in this final rule, recolonization following stochastic

local extinctions is probably a determining factor for the long-term

persistence of this species.

Taking this information into consideration, as well as the actions

discussed under factors A, C, D, and E in the ``Summary of Factors

Affecting the Species'' section of this rule, the Service finds that

the vernal pool fairy shrimp is not in imminent danger of extinction

but is likely to become so in the foreseeable future throughout all or

a significant portion of its range.

Designation of critical habitat for the vernal pool fairy shrimp,

longhorn fairy shrimp, Conservancy fairy shrimp, and the vernal pool

tadpole shrimp is not prudent at this time for the reasons discussed

below.

Critical Habitat

Section 4(a)(3) of the Act, as amended, requires that to the

maximum extent prudent and determinable, the Secretary designate

critical habitat at the same time the taxa are listed. The Service

finds that designation of critical habitat is not prudent for these

species at this time. Because the three fairy shrimp and vernal pool

tadpole shrimp face numerous anthropogenic threats (see Factor A in

``Summary of Factors Affecting the Species''), the publication of

precise maps and descriptions of critical habitat in the Federal

Register would make these species more vulnerable to incidents of

vandalism and, therefore, would contribute to the decline of these

species. A number of sites inhabited by the four species occur on

private land that is undergoing rapid urban and agricultural

development. As documented above, some areas have been destroyed to

eliminate vernal pool characteristics and escape regulatory

jurisdiction by the Corps. The proper agencies have been notified

concerning management requirements of these animals. Protection of the

habitat of these species will be addressed through the recovery,

section 7 consultation, and incidental take permitting processes.

Federal involvement in areas where these animals occur can be

identified without designation of critical habitat. Therefore, the

Service finds that designation of critical habitat for these animals is

not prudent at this time, because such designation likely would

increase the degree of threat from vandalism or other human activities.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the endangered Species Act include recognition,

recovery actions, requirements for Federal protection, and prohibitions

against certain activities. Recognition through listing encourages and

results in conservation actions by Federal, State, local, and private

agencies, groups, and individuals. The Endangered Species Act provides

for possible land acquisition and cooperation with the States and

requires recovery actions be carried out for all listed species. Such

actions are initiated following listing. The protection required of

Federal agencies and the prohibitions against taking are discussed, in

part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

part 402. Section 7(a)(2) requires Federal agencies to insure that

activities they authorize, fund, or carry out are not likely to

jeopardize the continued existence of such a species or to destroy or

adversely modify its critical habitat. If a Federal action may affect a

listed species or its critical habitat, the responsible Federal agency

must enter into formal consultation with the Service.

As described above, the U.S. Army Corps of engineers exerts section

404 jurisdiction over habitats supporting these animals. Nationwide

permits are not valid where a federally listed endangered or threatened

species would be affected by the proposed project. When listed species

may be affected, formal consultation is required pursuant to section 7

of the Act before nationwide permits become effective. In addition, the

Department of Housing and Urban Development (HUD) may insure housing

loans in areas that presently support these animals; HUD actions

regarding these loans also would be subject to review by the Service

under section 7 of the Act.

Other Federal agencies that possibly could be affected if these

animals are listed include the U.S. Air Force, U.S. Department of

Agriculture (Farmers Home Administration), Veterans Administration, and

the Department of Transportation (Federal Highways Administration).

Populations of the longhorn fairy shrimp, vernal pool fairy shrimp, and

the vernal pool tadpole shrimp occur on property owned by the Bureau of

Land Management at the Carrizo Plain in San Luis Obispo County; and the

U.S. Air Force at Castle Air Force Base, Mather Air Force Base, and

Beale Air Force Base.

The listing of these fairy shrimp and the vernal pool tadpole

shrimp will also bring section 5 and 6 of the Endangered Species Act

into effect. Section 5 authorizes acquisition of lands for the purposes

of conserving endangered and threatened species. Pursuant to section 6,

the Service would be able to grant funds to affected States for

management actions aiding in protection and recovery of these animals.

Listing these fairy shrimp and the vernal pool tadpole shrimp as

endangered provides for the development of a recovery plan (or plans)

for them. Such plan(s) will bring together State and Federal efforts

for conservation of the animals. The plan(s) will establish a framework

for agencies to coordinate activities and cooperate with each other in

conservation efforts. The plan(s) will set recovery priorities and

estimate costs of various tasks necessary to accomplish them. They also

will describe site-specific management actions necessary to achieve

conservation and survival of the fairy shrimp and the vernal pool

tadpole shrimp.

The Act and implementing regulations found at 50 CFR 17.21 for

endangered species and 17.31 for threatened species set forth a series

of prohibitions and exceptions that apply to all endangered wildlife

and to threatened wildlife not covered by a special rule. These

prohibitions, in part, make it illegal for any person subject to the

jurisdiction of the United States to take, import or export, transport

in interstate or foreign commerce in the course of commercial activity,

or sell or offer for sale in interstate or foreign commerce any such

species. It also is illegal to possess, sell, deliver, carry,

transport, or ship any such wildlife that was illegally taken. Certain

exceptions can apply to agents of Service and State conservation

agencies.

Permits may be issued to carry out otherwise prohibited activities

involving endangered and threatened animal species under certain

circumstances. Regulations governing permits are at 50 CFR 17.22,

17.23, and 17.32. For endangered species, such permits are available

for scientific purposes, to enhance the propagation or survival of the

species, to alleviate economic hardship in certain circumstances, and/

or for incidental take in connection with otherwise lawful activities.

For threatened species, there are also permits for zoological

exhibition, educational purposes or other purposes consistent with the

purposes of the Act. Further information regarding regulations and

requirements for permits may be obtained from the U.S. Fish and

Wildlife Service, Ecological Services, Endangered Species Permits, 911

N.E. 11th Avenue, Portland, Oregon 97232-4181 (503/231-2063; FAX 503/

231-6243).

National Environmental Policy Act

The Fish and Wildlife Service has determined that an Environmental

Assessment, as defined under the authority of the National

Environmental Policy Act of 1969, need not be prepared in connection

with regulations adopted pursuant to section 4(a) of the Endangered

Species Act of 1973, as amended. A notice outlining the Service's

reasons for this determination was published in the Federal Register on

October 25, 1983 (48 FR 49244).

References Cited

A complete list of all references cited herein is available,

upon request, from the Field Supervisor, Sacramento Field Office,

(see ADDRESSES section).

Authors

The primary authors of this final rule are Chris Nagano and Jim

Browning, Sacramento Field Office, 2800 Cottage Way Room E-1823,

Sacramento, California 95825 (916/978-4866).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Regulations Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

1. The authority citation for Part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Section 17.11(h) is amended by adding in the table the following

in alphabetical order under CRUSTACEANS to the List of Endangered and

Threatened Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h)* * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate population

--------------------------------------------------- Historic range where endangered or Status When listed Critical Special

Common name Scientific name threatened habitat rules

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

Crustaceans

* * * * * * *

Shrimp, Conservancy Branchinecta conservatio U.S.A. (CA)............. NA..................... E 549 NA NA

fairy.

* * * * * * *

Shrimp, longhorn fairy.. Branchinecta U.S.A. (CA)............. NA..................... E 549 NA NA

longiantenna.

* * * * * * *

Shrimp, vernal pool Branchinecta lynchi..... U.S.A. (CA)............. NA..................... T 549 NA NA

fairy.

Shrimp, vernal pool Lepidurus packardi...... U.S.A. (CA)............. NA..................... E 549 NA NA

tadpole.

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: August 31, 1994.

Mollie H. Beattie,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 94-23156 Filed 9-16-94; 8:45 am]

BILLING CODE 4310-55-P-M