Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the San Diego Fairy Shrimp

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC83

Endangered and Threatened Wildlife and Plants; Determination of

Endangered Status for the San Diego Fairy Shrimp

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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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 San Diego fairy shrimp (Branchinecta

sandiegonensis). This animal is restricted to vernal pools in

southwestern coastal California and extreme northwestern Baja

California, Mexico. Less than 81 hectares (ha) (200 acres (ac)) of

habitat likely remains. This species is imperiled by a variety of

factors including: habitat destruction and fragmentation from urban

development and agricultural conversion, alterations of vernal pool

hydrology, off-road vehicle (ORV) activity, and livestock overgrazing.

This rule implements Federal protection and recovery provisions

afforded by the Act.

EFFECTIVE DATE: February 3, 1997.

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

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

Carlsbad Field Office, U.S. Fish and Wildlife Service, 2730 Loker

Avenue West, Carlsbad, California 92008.

FOR FURTHER INFORMATION CONTACT: Chris Nagano or Susan Wynn at the

above address (telephone 619/431-9440).

SUPPLEMENTARY INFORMATION:

Background

The San Diego fairy shrimp is a member of the aquatic crustacean

order Anostraca. The species was first collected in Poway and Ramona,

San Diego County, in 1962 by J. E. Lynch (Fugate 1993). Michael Fugate

(1993) described Branchinecta sandiegonensis based on collections that

he and Marie Simovich made at Del Mar Mesa in San Diego County. The

species is restricted to vernal pools in coastal southern California

south to extreme northwestern Baja California, Mexico. No individuals

have been found in riverine waters, marine waters, or other permanent

bodies of water. All known localities are below 700 meters (m) (2,300

feet (ft)) and within 65 kilometers (km) (40 miles (mi)) of the Pacific

Ocean, from Santa Barbara County south to northwestern Baja California.

The majority of the vernal pools in this region, including many which

likely served as habitat for the species, were destroyed prior to 1990.

Between 1979 and 1986, approximately 68 percent of the privately owned

vernal pools under the City of San Diego's jurisdiction were destroyed

(Wier and Bauder 1991).

Adult male San Diego fairy shrimp range in length from 9 to 16 mm

(0.4 to 0.6 inches (in.)) and the females are 8 to 14 mm (0.4 to 0.5

in.) long. Mature individuals have a delicate elongate body, large

stalked compound eyes, no carapace (shell covering the back), 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

front-to-back direction. Nearly all species of fairy shrimp feed on

algae, bacteria, protozoa, rotifers, and bits of organic matter (Eng et

al. 1990, Pennak 1989). The second pair of antennae in adult female San

Diego fairy shrimp are cylindrical and elongate, but in the males they

are greatly enlarged and specialized for clasping the females during

copulation. The females carry their eggs in an oval or elongate ventral

brood sac.

Five other species of branchinectid fairy shrimp occur in southern

California (Simovich and Fugate 1992). The only other branchinectids in

southern California that are similar in

[[Page 4926]]

appearance to the San Diego fairy shrimp are Lindahl's fairy shrimp

(Branchinecta lindalhi) and the threatened vernal pool fairy shrimp (B.

lynchi), which occurs in southwestern Riverside County. Male San Diego

fairy shrimp can be distinguished from males of other Branchinecta

species by the shape of the second antenna. Female San Diego fairy

shrimp are distinguishable from other members of the genus by the shape

and length of the brood sac and by the presence of paired dorsolateral

spines on five of the abdominal segments (Fugate 1993).

The San Diego fairy shrimp is a habitat specialist found in small,

shallow vernal pools, which range in depth from 5 to 30 centimeters

(cm) (2 to 12 in.) and in water temperature from 10 to 20 degrees

Celsius (C) (50 to 68 degrees Fahrenheit (F)) (Fugate and Simovich

1992, Hathaway and Simovich undated). Water chemistry is one of the

most important factors in determining the distribution of fairy shrimp

(Belk 1977, Branchiopod Research Group 1996). The San Diego fairy

shrimp appears to be sensitive to high water temperatures (Branchiopod

Research Group 1996). Hathaway and Simovich (undated) presented data

indicating that pools located in the inland mountain and desert regions

may be too cool (below 5 degrees C (41 degrees F)) or too warm (above

30 degrees C (86 degrees F)) for this species.

Adult San Diego fairy shrimp are usually observed from January to

March; however, in years with early or late rainfall, the hatching

period may be extended. The species hatches and matures within 7 days

to 2 weeks depending on water temperature (Hathaway and Simovich

undated, Simovich and Hathaway undated). The San Diego fairy shrimp

disappear after about a month, but animals will continue to hatch if

subsequent rains result in additional water or refilling of the vernal

pools (Branchiopod Research Group 1996). 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 drying. When the pools refill in the same or

subsequent rainy seasons, some but not all of the eggs may hatch. Fairy

shrimp egg banks in the soil may be comprised of the eggs from several

years of breeding (Donald 1983).

The genetic characteristics of the San Diego fairy 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). Individual vernal pools

occupied by the San Diego fairy shrimp are most appropriately referred

to as subpopulations.

Vernal pools have a discontinuous occurrence in several regions of

California (Keeler-Wolf et al. 1995). 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, 1988; Holland and Jain 1977, 1988; Simovich

and Hathaway undated; Thorne 1984; Zedler 1987). 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 (Bauder

1986, Holland and Jain 1988). Pools within a complex are typically

separated by distances on the order of meters and may form dense,

interconnected mosaics of small pools or a more sparse scattering of

larger pools.

Temporary inundation makes vernal pools too wet during the wet

period of the year 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, a number of indigenous plant

and aquatic invertebrate species have evolved to occupy the extreme

environmental conditions found in vernal pool habitats (Alexander 1976,

Barclay and Knight 1984, Baskin 1994, Zedler 1987). Fairy shrimp play

an important role in the community ecology of many ephemeral water

bodies. They are fed upon by waterfowl (Krapu 1974, Swanson et al.

1974) and other vertebrates, such as western spadefoot toad (Scaphiopus

hammondi) tadpoles (Branchiopod Research Group 1996).

Urban and water development, flood control, highway and utility

projects, as well as conversion of wildlands to agricultural use, have

eliminated vernal pools in southern California (Jones and Stokes

Associates 1987). Changes in hydrological pattern, overgrazing, and ORV

use also imperil this aquatic habitat and the San Diego fairy shrimp.

Human activities that impact the watershed of vernal pools indirectly

affect this animal. The flora and fauna in vernal pools or swales can

change if the hydrological regime is altered (Bauder 1986, 1987).

Human-caused 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 the animals. The

vernal pool habitat type has been ranked in the California Department

of Fish and Game's Natural Diversity Data Base in priority class G1-S1,

which denotes communities in the State of California that occur over

less than 800 ha (2,000 ac) globally.

The largest number of vernal pools in California, including those

inhabited by the San Diego fairy shrimp, are located in San Diego

County. However, the cumulative loss of vernal pool habitat in San

Diego County is estimated at 90 to 97 percent (Bauder 1986, Oberbauer

and Vanderweir 1991, Keeler-Wolf et al. 1995). Based on a composite of

available information, the Service estimates that less than 81 ha (200

ac) of occupied vernal pool habitat likely remains. Weir and Bauder

(1991) estimate that 70 percent of remaining vernal pool habitat occurs

on military lands. Keeler-Wolf et al. (1995) concluded that the

greatest recent losses of vernal pool habitat in San Diego County have

occurred in Mira Mesa, Penasquitos, and Kearney Mesa, which accounted

for 73 percent of all the pools destroyed in the region during the 7-

year period between 1979 and 1986. Other substantial losses have

occurred in the Otay Mesa area, where over 40 percent of the vernal

pools were destroyed during the 11-year period between 1979 and 1990.

Vernal pools in southern coastal Santa Barbara County are imperiled by

development (Ferren and Pritchett 1988, Keeler-Wolf et al. 1995).

Vernal pool habitat was once extensive on the coastal plain of Los

Angeles County (R. Mattoni and T. Longcore, in litt., 1996). The loss

of vernal pool habitat is now nearly total in Los Angeles and Orange

counties (Keeler-Wolf et al. 1995, Ferren and Pritchett 1988).

Previous Federal Action

On March 24, 1992, the Service received a petition dated March 16,

1992, from David Hogan, formerly of the San Diego Biodiversity Project

in Julian, California, and Dr. Denton Belk of the Lady of Our Lake

University in San Antonio, Texas, to list the San Diego fairy shrimp as

an endangered species. On August 4, 1994, the Service published a

proposed rule in the Federal Register (59 FR 39874) to list the San

Diego fairy shrimp as an endangered species. The proposed rule

[[Page 4927]]

was the first Federal action on the San Diego fairy shrimp and also

constituted the 12-month warranted finding that the petitioned action

was warranted, as required by section 4(b)(3)(B) of the Act.

The processing of this final rule follows the Service's fiscal year

1997 listing priority guidance published in the Federal Register on

December 5, 1996 (61 FR 64475). The guidance clarifies the order in

which the Service will process rulemaking following two related events:

(1) the lifting on April 26, 1996, of the moratorium on final listings

imposed on April 10, 1995 (Public Law 104-6), and (2) the restoration

of significant funding for listing through passage of the Omnibus

Budget Reconciliation Act passed on April 26, 1996, following severe

funding constraints imposed by a number of continuing resolutions

between November 1995 and April 1996. The guidance calls for giving

highest priority to handling emergency situations (Tier 1) and second

highest priority (Tier 2) to resolving the listing status of the

outstanding proposed listings. This final rule falls under Tier 2. At

this time there are no pending Tier 1 actions. This rule has been

updated to reflect any changes in distribution, status and threats

since the effective date of the listing moratorium. This additional

information was not of a nature to alter the Service's decision to list

the species.

Summary of Comments and Recommendations

In the August 4, 1994, proposed rule and associated notifications,

all interested parties were requested to submit factual reports or

information that might assist the Service in determining whether

listing is warranted for this species. 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 the proposed rule were

published in the San Diego Union Tribune, Orange County Register, and

the Riverside County Press-Enterprise.

In compliance with Service policy on information standards under

the Act (59 FR 34270; July 1, 1994), the Service solicited the expert

opinions of three appropriate and independent specialists regarding

pertinent scientific or commercial data and assumptions relating to the

taxonomy, population models, and supportive biological and ecological

information for the San Diego fairy shrimp. Comments received from

these reviewers were supportive of the proposed listing action and

included corrections to the range of the species, the spelling of its

scientific name, and additional information on co-occurrence with other

listed vernal pool species. These revisions have been incorporated into

this final rule.

On August 18, 1994, the Service received a written request for a

public hearing from the late Dr. William Hazeltine of Oroville,

California. Several other requests for a public hearing also were

received. As a result, on September 26, 1994, the Service published a

notice in the Federal Register (59 FR 49045) announcing the public

hearing and extending the comment period until October 31, 1994. The

Service conducted a public hearing on October 19, 1994, at the Radisson

Hotel in Rancho Bernardo, California. Testimony was taken from 6 p.m.

to 8 p.m. Twenty-one individuals presented testimony on the San Diego

fairy shrimp. During the comment periods, the Service received 63

comments (letters and oral testimony), from 1 Federal agency, 1 local

agency, and 61 individuals or groups. Several individuals submitted

more than one comment. Twenty-six comments supported the proposed

listing, 30 opposed it, and 7 were neutral.

The Service has reviewed all of the written and oral comments

received during the comment period. Several comments dealt with matters

of opinion or legal history, which are not relevant to the listing

decision. Comments updating the data presented in the ``Background'' or

``Summary of Factors Affecting the Species'' are incorporated into

those sections of this final rule. Opposing comments and other

substantive 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 more than one location.

Service Response

The Service is obligated to hold at least one public hearing on a

listing proposal if requested to do so within 45 days of publication of

the proposal (50 CFR 424.16(c)(3)). Considering the limited geographic

distribution of the species, the Service judged that holding a single

public hearing did not cause undue inconvenience to those wishing to

attend.

Issue 2

Several respondents stated that the Service's notification to the

public on the proposal was inadequate.

Service Response

The Service went through an extensive notification process to make

the public aware of the proposal, including Federal Register

notifications, letters to specific concerned parties, and notifications

in local newspapers. This process satisfied the requirements of the Act

and was described at the beginning of this section.

Issue 3

Some respondents believed that listing the San Diego fairy shrimp

would result in adverse economic impacts to hundreds of acres of land

and questioned the value of these animals to society. Two commenters

requested that an analysis of the economic impact of listing the

species be completed. Other commenters claimed the San Diego fairy

shrimp is an ``insignificant'' species and that listing would interfere

with the natural evolutionary process of extinction. Conversely, 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 that the species is 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

affecting such decisions'' (H.R. Rep. No. 97-835, 97th Cong. 2d Sess.

19 (1982)). As further stated in the congressional report, ``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 does not consider the possible economic consequences of

listing the San Diego fairy shrimp. Although a variety of opinions

likely exist as to a particular species' contribution to society,

including its aesthetic, scientific, or other significance, this issue

is not among the five factors upon which a listing determination is

based.

[[Page 4928]]

Issue 4

One commenter stated that the listing of the San Diego fairy shrimp

will result in a ``taking'' of their private property in clear

violation of their constitutional rights.

Service Response

Listing under the Act does not imply that private land would be

confiscated or taken without just compensation. The San Diego fairy

shrimp will be protected under section 9 of the Act, which prohibits

the take of this animal. Recovery planning for the species may include

recommendations for land acquisition or easements involving private

landowners. These efforts would only be undertaken with the cooperation

of the landowner. In the majority of cases, private landowners are not

precluded from using their land in the manner originally intended.

Executive Order 12630, Government Actions and Interference with

Constitutionally Protected Property Rights, requires that a Takings

Implications Assessment (TIA) be conducted ``as a part of any final

rulemaking to evaluate the risk of and strategies for avoidance of the

taking of private property.'' However, the Attorney General has issued

guidelines to the Department of the Interior (Department) regarding

TIAs. The Attorney General's guidelines state that TIAs used to analyze

the potential for Fifth Amendment ``taking claims'' are to be prepared

after, rather than before, an agency makes a restricted discretionary

decision. In enacting the 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. The Service may

not withhold a listing based upon economic concerns. Therefore, even

though a TIA may be required, a TIA for a listing action is finalized

only after the final determination is made regarding whether to list

the species.

Issue 5

Three respondents stated that critical habitat should be designated

for the San Diego fairy shrimp.

Service Response

The Service believes that the risk 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, the San Diego fairy shrimp could be adversely

affected by acts of vandalism. The Service is aware of vernal pools

apparently containing suitable habitat for this animal that were

destroyed to escape regulatory requirements. Designation of critical

habitat for the San Diego fairy shrimp is not prudent and would

increase the degree of threat facing the species. Further discussion is

contained in the ``Critical Habitat'' section below.

Issue 6

One commenter claimed that the petition was not valid because,

pursuant to 50 CFR 424.14(b)(2)(I), the document was submitted prior to

the publication of the scientific paper naming the species.

Service Response

Pursuant to 50 CFR 424.14(b)(2)(I), a petition must contain the

scientific and common name of the species. The petition for the listing

of the San Diego fairy shrimp contained this information. Although the

document was received prior to publication of the formal description of

the animal, the petition included sufficient information, including a

pre-publication copy of the paper, to adequately identify the species.

Issue 7

Two commenters stated that development of areas containing the San

Diego fairy shrimp should be allowed to proceed because this is the

only way to provide an economic incentive for private landowners to

protect the habitat of this animal.

Service Response

The Service recognizes that while some populations of the San Diego

fairy shrimp located on private lands are protected by their owners,

significant privately owned areas containing the animal and its habitat

are not secure against adverse impacts. Between 1979 and 1986,

approximately 68 percent of the privately owned vernal pools under the

City of San Diego's jurisdiction were destroyed (Weir and Bauder 1991).

Please refer to Factor ``A'' below for an expanded discussion on

landownership patterns and protection for the species.

Issue 8

Two commenters stated that the San Diego fairy shrimp should not be

listed under the Act because the animal is indirectly protected by

other taxa inhabiting vernal pools that have been designated as

endangered or threatened species. Another commenter said that only the

protection of ecosystems rather than species-by-species listing will

protect the San Diego fairy shrimp and its vernal pool habitat.

Service Response

The other vernal pool taxa that have been listed under the Act have

a more restricted range, inhabit different geographic areas, or

different vernal pool habitats (e.g., deeper pools) than the San Diego

fairy shrimp. In addition, although one purpose of the Act is to

conserve ecosystems upon which endangered and threatened species

depend, species rather than ecosystems are listed under the Act. Please

see Factor ``D'' below for further discussion.

Issue 9

Two commenters stated that the Service had not obtained the review

of the proposed listing by three experts. One of these commenters, in

his discussion of the motives of one petitioner and two of his

scientific colleagues, questioned whether the Service had ``accounted

for the bias on the part of the listing proponents.''

Service Response

In accordance with the Service's policy on peer review, the

proposed rule for the San Diego fairy shrimp was reviewed by at least

four vernal pool specialists, including three experts other than the

individuals referred to by the commenter, as well as by all interested

reviewers during the public comment period on the proposed rule.

Although the Service acknowledges the concern of the commenter

regarding the parties expressing contrary views, the final decision to

list the San Diego fairy shrimp is based on the best scientific and

commercial information available, which includes peer review by

acknowledged authorities.

Issue 10

Three commenters requested that the Service delay or not list the

San Diego fairy shrimp because they felt that there is insufficient

information on the distribution and abundance of the animal. Some of

these parties contended that the data are lacking because the species

was not formally described until 1993. One commenter stated that the

status of the species in Ventura, Los Angeles, and Orange counties is

not clear. Expressing a contrary view, a recognized crustacean

biologist stated that the fairy shrimp fauna of southern California is

well known. Two biologists noted that misidentification of the species

may have caused confusion regarding the distribution of the San Diego

fairy shrimp. Four biologists commented that the species has specific

ecological and biological requirements and the animal has a restricted

geographic range.

[[Page 4929]]

Service Response

The Service concludes, as detailed in the ``Background'' and

``Summary of Factors'' sections, that sufficient biological data exist

to warrant listing of the San Diego fairy shrimp under the Act.

Sampling conducted at various locations and intensities between 1962

and 1993 by biologists familiar with fairy shrimp and their habitats

provided adequate information on the distribution, habitat

requirements, and, most importantly, threats to the San Diego fairy

shrimp to warrant the present action. Fugate's formal description of

the species (Fugate 1993) contains records of the San Diego fairy

shrimp that were collected in 1962. The species has not been found in

the few extant vernal pools in Ventura and Los Angeles counties, and it

has an extremely limited distribution in Santa Barbara and Orange

counties, in part based on the prevailing lack of suitable habitat. The

majority of the extant populations of the San Diego fairy shrimp are

found in San Diego County. The listing process includes an opportunity

for the public to comment and provide information that is evaluated and

considered by the Service before making a final decision. The

additional data provided by respondents during the comment period, the

report by the Branchiopod Research Group (1996), and other appropriate

information available to the Service have been incorporated into this

final rule. None of these sources provide evidence indicating that this

taxon is not endangered. These materials represent the best available

scientific and commercial information upon which to base a listing

decision.

Issue 11

Several commenters stated that the San Diego fairy shrimp does not

warrant listing because of its ``widespread'' distribution.

Service Response

After reviewing all available data, the Service concludes the San

Diego fairy shrimp is found in less than 81 ha (200 ac) of vernal pool

habitat and is not a widespread species. The animal is restricted to

vernal pools in coastal southern California and extreme northwestern

Baja California, Mexico. As described elsewhere in this final rule, the

San Diego fairy shrimp is imperiled by habitat loss from construction

activities (urban development, highway construction, etc.) and

degradation (conversion of land to agricultural use, ORV use, and

changes in hydrological patterns in areas it inhabits).

Issue 12

Two commenters claimed that the data on the San Diego fairy shrimp

do not demonstrate a historic and consistent decline in population

levels.

Service Response

Relatively little information is available to reconstruct the

distribution of the San Diego fairy shrimp prior to the loss of its

vernal pool habitat that began in the 1800's. However, the Service is

required to evaluate species based on current and likely future threats

to their status. In all likelihood, the species'' status over time

probably paralleled the region-wide trend in vernal pool losses. As

discussed in this final rule, 97 percent of its vernal pool habitat has

been destroyed, and all extant populations of this endemic vernal pool

species face severe, imminent threats that could result in substantial

habitat losses and extirpations in the future.

Issue 13

Several commenters noted that the proposed rule incorrectly stated

that the San Diego fairy shrimp is found in more than 70 vernal pools

located in 11 vernal pool complexes.

Service Response

After reviewing all available information, the Service has

determined that the San Diego fairy shrimp inhabits a minimum of 25

vernal pool complexes in San Diego, Orange, and Santa Barbara counties,

and Baja California. Although the species inhabits a number of vernal

pool complexes that were not included in the proposed rule, the

Service's decision to list the animal is based on significant threats

associated with past and likely future habitat loss and fragmentation,

rather than solely on the basis of numbers of inhabited vernal pools or

vernal pool complexes. Furthermore, based on available information, the

Service estimates that less than 81 ha (200 ac) of habitat remain that

support the species. Please see Factor ``A'' for a discussion of the

status of the locations inhabited by the animal.

Issue 14

One commenter asserted that there are insufficient data upon which

to determine the potential habitat of the San Diego fairy shrimp in

California and Baja California, Mexico. This commenter suggested that

the Service survey for the species throughout southern California, as

well as the entire Baja California peninsula. In addition, the

respondent said that the Service lacks the data to complete a

``reasoned analysis'' of the historic and potential loss of the vernal

pool habitat of the animal and requested specific information on

potential development projects to allow public review and comment on

threats to the species posed by these proposed actions.

Service Response

Potentially suitable conditions for vernal pools in Baja California

exist along the coast from the United States/Mexico border south to

about 30 degrees north Latitude. Only a few vernal pools are known from

this area because of the typically mountainous terrain and relative

absence of plateaus and mesas. Those present are subject to adverse

human impacts. Sonoran Desert habitat is found south of 30 degrees

north Latitude (Shreve and Wiggins 1986, Wiggins 1980); ephemeral

wetlands in that region do not provide suitable conditions for the San

Diego fairy shrimp. Please see Factor ``A'' for a discussion of the

specific threats to each of the locations inhabited by the San Diego

fairy shrimp in California and northwestern Baja California. Copies of

the Environmental Impact Statements for individual development projects

impacting occupied locations are available for public review at the

Carlsbad Field Office (see ADDRESSES section).

Issue 15

One commenter stated that 90 percent of the remaining vernal pool

habitat in San Diego County is located on U.S. Navy and Marine Corps

bases and, therefore, is protected. Two commenters noted that proactive

management programs for vernal pools have been implemented at the

affected military facilities. However, three commenters noted that

vernal pool habitat for the San Diego fairy shrimp has been degraded by

ORVs and trash dumping at Miramar Naval Air Station and Marine Corps

Base Camp Pendleton.

Service Response

Weir and Bauder (1991) state that 70 percent of the remaining

vernal pools occur on military lands. The largest remaining block of

habitat for the San Diego fairy shrimp is located at Miramar Naval Air

Station. This site contains approximately 26 ha (65 ac) of vernal

pools, exclusive of associated watersheds. The base is owned by the

U.S. Navy and will be realigned to the U.S. Marine Corps on October 1,

1997. Furthermore, proposed re-alignment related activities will impact

[[Page 4930]]

approximately 4 percent of the vernal pools at the air station.

(Department of the Navy 1996). The U.S. Navy and the U.S. Marine Corps

have stated that they do not have plans to permit a National Wildlife

Refuge overlay of the vernal pools, and have not prepared a management

plan for the vernal pools (Department of the Navy 1996). The U.S.

Marine Corps has not yet prepared a management plan for the vernal

pools at Camp Pendleton. Therefore, the protection of the San Diego

fairy shrimp at the two bases containing the largest blocks of extant

vernal pools within the range of the species is not assured.

Issue 16

One commenter questioned the accuracy of the references (Bauder

1986, Oberbauer 1990) which provided the amount of historic and extant

vernal pools. In addition, the commenter stated that some of the

information was only relevant to San Diego County and not the remainder

of the species' range in California and Baja California. The commenter

did not provide data to support his assertion that the information

utilized by the Service was incorrect.

Service Response

The Service has determined that Bauder (1986) and Oberbauer (1990)

based their conclusions on data gathered utilizing acceptable

scientific methods. Except for a few remnant sites, vernal pools in

Santa Barbara, Ventura, Los Angeles, and Orange counties have been

destroyed.

Issue 17

Two commenters asserted that the San Diego fairy shrimp is not

restricted to vernal pools because individuals have been observed in

man-made non-vernal pool habitats such as roadside ditches, mud

puddles, and road ruts. The City of San Diego provided information

describing vernal pools inhabited by the animal that formed on soil

placed on top of the Miramar Landfill. Expressing a contrary view, five

biologists stated that the San Diego fairy shrimp is restricted to

vernal pools. They reported that the ``artificial'' habitats are either

degraded vernal pools or areas subject to overflow from extant pools

during periods of high water.

Service Response

The Service has carefully reviewed the assertion that the San Diego

fairy shrimp is 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.

Some of these records, such as roadside ditches, scraped areas, and

airport runoff ditches likely represent remnant vernal pool habitat or

are part of the swale systems connected to vernal pools, a fact

reiterated in the oral comments of a vernal pool expert during the

public hearing. Most of these disturbed habitats are also imperiled by

urban development.

The record of San Diego fairy shrimp in ``mud puddles'' at El

Camino Memorial Park in Mira Mesa likely represents degraded vernal

pool habitat. The animals that inhabit the Miramar Landfill site were

likely distributed into this area from adjacent areas with extant

vernal pools, or eggs were contained in material that was scraped from

an area that previously contained vernal pools and was used to cover

the landfill.

In addition, the accurate identification of fairy shrimp is

extremely difficult because the morphological characters that

differentiate the species are often 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, including the San Diego fairy

shrimp. Some of the records of the San Diego fairy shrimp in non-vernal

pool habitats may be the result of such misidentifications.

Issue 18

Three commenters questioned the scientific basis upon which the

taxonomy of the San Diego fairy shrimp is based. Two of these parties,

citing the lack of unambiguous genetic data, claimed that it is unclear

that the animal is a distinct species. However, a recognized crustacean

biologist stated that the San Diego fairy shrimp is distinct. This

biologist noted that the genetics of the genus had been examined in

detail by Fugate (1992).

Service Response

Using the best and most recent systematic information from a number

of reliable sources, including Eng et al. (1990), Fugate (1992, 1993),

and other recognized experts on fairy shrimp taxonomy, the Service

adopts the prevailing scientific consensus and maintains that the San

Diego fairy shrimp is a distinct species.

Issue 19

One commenter questioned the threat to the San Diego fairy shrimp

posed by ORV activity, trash dumping, and alterations of vernal pool

hydrology. This commenter felt that trash dumping and ORV use could

benefit the animal because trash could provide shade and ORVs could

serve as a dispersal agent. This same party questioned whether

fragmentation of the vernal pool complexes resulting from human actions

poses a threat to the San Diego fairy shrimp because the complexes have

historically constituted fragmented habitat. In contrast, two

biologists noted that the species is imperiled by chemicals associated

with trash dumping, such as motor oil or pesticides, and by the

physical damage or destruction of the vernal pools through alteration

in hydrology caused by urban development, ORVs, and other actions.

Service Response

After reviewing all available data, the Service has determined that

habitat fragmentation, trash dumping, ORV use, and alterations in the

hydrology of the vernal pool habitat of the San Diego fairy shrimp

imperil the species. Please refer to Factors ``A'' and ``E'' for an

expanded discussion of these threats.

Issue 20

One commenter stated that cattle grazing does not affect the San

Diego fairy shrimp, but did not present supporting data.

Service Response

The Service recognizes and acknowledges that low to moderate levels

of livestock grazing likely have minimal impacts on the San Diego fairy

shrimp. However, overgrazing in areas containing the animal is likely

to be detrimental. High livestock densities may result in excessive

physical disturbances, such as trampling, and changes in pool water

chemistry and water quality. Trampling of pool margins and thinning of

vegetation from overgrazing may increase pasture runoff, leading to

erosion and increased siltation of vernal pool habitat.

Issue 21

One commenter stated that a minimum viable population analysis for

the San Diego fairy shrimp must be completed prior to listing because

an analysis based on the loss of the vernal pool habitat of the species

does not provide a basis upon which to evaluate the status of the

animal.

Service Response

A minimum viable population analysis, while potentially useful for

developing a recovery plan for the species (Shaffer 1990), is not

required to determine whether a taxon should be listed, nor does it

address foreseeable deterministic threats to species.

[[Page 4931]]

Issue 22

Three respondents contended that the proposed rule did not

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

commenters claimed that artificial vernal pools were successful and

were adequate mitigation for adverse impacts to vernal pools resulting

from urban development.

Service Response

In a review of 21 vernal pool creation projects located 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.'' The only known vernal pool creation

experiment conducted in southern California that specifically

investigated fairy shrimp was a failure (Branchiopod Research Group

1996). Although some individuals (Sugnet and Associates et al. 1992)

have claimed complete success or some degree of success for vernal

pools in the Central Valley of California, these conclusions are

generally based on anecdotal studies and the persistence of fairy

shrimp for only a short period of time (e.g., 3 years or less).

Moreover, the principle pool creation technique (i.e., relocation of

soil from excavated pool bottoms rather than inoculation with a known

quantity of eggs) and a lack of scientifically designed monitoring do

not allow for collection of the necessary data to determine the long-

term population viability of transplanted species (Branchiopod Research

Group 1996).

In a study of 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, are likely the limiting factors in the

distribution of fairy shrimp (U.S. Fish and Wildlife Service (USFWS)

1994). The San Diego fairy shrimp requires more restrictive

environmental conditions than more widely distributed taxa (Branchiopod

Research Group 1996). No demonstrated long-term populations of the San

Diego fairy shrimp exist in artificial habitats.

Artificially created habitats may also increase the potential for

hybridization between the San Diego fairy shrimp and other more

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

species found in western North America that occurs in a wide array of

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

brine shrimp (Artemia sp.) to snow melt pools. Poor planning, 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 San Diego fairy shrimp readily hybridize in the laboratory and

produce viable first generation hybrids (Fugate 1992, Branchiopod

Research Group 1996). Evidence suggests that hybridization between

other fairy shrimp has occurred in the field due to human actions. Belk

(1977) reported that the westward dispersal of a desert fairy shrimp

(Streptocephalus dorothae) from Texas and New Mexico across extensive

expanses of arid land into Arizona may be due to the cattle ponds and

livestock watering holes that were built in the region during the past

century. Wiman (1979) reported that viable hybrid offspring are

produced by this species and Mackin's desert fairy shrimp (S. mackini),

a resident species in Arizona.

The San Diego fairy shrimp may be adversely impacted as a result of

actions taken to create and/or restore vernal pools (Branchiopod

Research Group 1996). Scraping of the vernal pool bottoms for plant

seed collection can damage or destroy fairy shrimp eggs, and heat or

humidity during storage can mold or kill eggs. Created or modified

vernal pools may hold water for inappropriate lengths of time, at

inappropriate depths or temperatures.

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 San Diego fairy shrimp and

creation of its habitat were documented to be a proven procedure rather

than an evolving problematic venture, artificial pool creation for the

species 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 in this rule,

natural habitat throughout the range of the San Diego fairy shrimp has

been damaged or eliminated. As a result, the Service concludes that the

continued survival and recovery of the San Diego fairy shrimp can only

be assured at this time by the preservation and enhancement of extant

vernal pools and their associated watersheds.

Issue 23

Nine respondents alleged that Federal, State and local regulatory

processes provide adequate protection for the crustaceans. Several of

these commenters said that listing would directly affect agricultural,

industrial and commercial development in areas that have been

meticulously planned and subject to State laws such as the Natural

Community Conservation Planning (NCCP) Act and the California

Environmental Quality Act (CEQA). Some commenters noted the ``no net

loss'' wetlands policies of several State and county agencies, while

others cited section 404 of the Clean Water Act as providing protection

for this habitat. Two commenters, citing two development projects in

San Diego County, claimed that significant portions of the vernal pools

at these project sites will be preserved. These commenters stated that

these projects are representative of the level of preservation afforded

vernal pool habitat in the San Diego area.

Expressing a contrary position, several other commenters noted that

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

protection for the species. One commenter noted that the City of San

Diego has approved the California Terraces project on Otay Mesa, and

has advanced other projects impacting San Diego fairy shrimp habitat

through the CEQA planning process without adequate mitigation for the

species.

Service Response

Based on an examination of the available information, the Service

has determined that proposed and on-going damage or destruction of

vernal pools in southern California caused by urban and agricultural

development is prevalent despite existing Federal, State, and local

regulations. Existing levels of protection are not adequate to assure

the survival of the San Diego fairy shrimp. For example, while vernal

pool habitat has been preserved permanently for some projects through

special conditions of permits authorized under section 404 of the

Federal Clean Water Act, significant areas of vernal pool habitat

continue to be destroyed in spite of the U.S. Army Corps of Engineers'

(Corps) jurisdictional authority to regulate these wetlands under the

Clean Water Act. Between 1993 and 1996, the Service identified 15

unauthorized projects in San Diego and Orange counties that destroyed

or damaged a minimum of 40 vernal pools exclusive of watersheds (Susan

Wynn, USFWS, unpub. notes). The projects were not authorized

[[Page 4932]]

because landowners either were not required or failed to comply with

the regulatory requirements of the section 404 permitting process.

Please see Factor ``D'' for a detailed discussion of the inadequacy of

existing regulations.

Issue 24

Five commenters stated that the San Diego Multiple Species

Conservation Program (MSCP) plan and the Multiple Habitat Conservation

Plan (MHCP) that are being prepared pursuant to the State of

California's NCCP Act of 1991 will adequately protect the San Diego

fairy shrimp and its vernal pool habitat in San Diego County. For this

reason, the commenters urged the Service not to list the animal.

Expressing a contrary view, one respondent stated that the MSCP and the

MHCP will not adequately protect the animal or its habitat. This same

respondent noted that no plan that will protect the San Diego fairy

shrimp has been adopted by any local government in southern California.

Service Response

The San Diego fairy shrimp is proposed to be covered under the MSCP

plan, which is currently in the final stages of the National

Environmental Policy Act public review process. The Service anticipates

making a decision on ``incidental take'' (section 10(a)(1)(B)) permit

issuance in April 1997. The Service has determined that 72 percent of

the remaining vernal pool habitat within the MSCP planning area is

located in the proposed program preserve. However, less than 30 percent

of the total San Diego fairy shrimp habitat is protected within the

MSCP planning area. Additional important habitat for this species

occurs on military lands, such as Miramar Naval Air Station, but this

land is not included as part of the MSCP. Military lands contain the

largest remaining blocks of vernal pool habitat for the San Diego fairy

shrimp, approximately 70 percent of the total habitat of the species.

Conservation planning for listed species on military lands will be

accomplished through separate avenues, such as formal consultations

pursuant to section 7 of the Act and through the Sikes Act agreements.

It will be the responsibility of the Service to ensure that these

conservation planning activities are consistent with the MSCP or MHCP

should these plans be approved. Preserve management plans must include

specific measures to protect against detrimental edge effects to the

San Diego fairy shrimp. The MHCP is still in development and the

precise configuration and conservation strategy have not been

determined. Therefore the protections that would be afforded the San

Diego fairy shrimp by this plan cannot yet been determined. Please see

Factor ``D'' for a discussion of the inadequacy of these regulatory

mechanisms.

Summary of Factors Affecting the Species

After a thorough review and consideration of all available

information, the Service has determined that the San Diego fairy shrimp

should be classified as an endangered species. Procedures found at

section 4 of the Act and regulations implementing the listing

provisions of the Act (50 CFR part 424) were followed. A species may be

determined to be an endangered or threatened species due to one or more

of the five factors described in section 4(a)(1). These factors and

their application to the San Diego fairy shrimp (Branchinecta

sandiegonensis Fugate) are as follows.

A. The Present or Threatened Destruction, Modification, or Curtailment

of Their Habitat or Range

The San Diego fairy shrimp is imperiled because its vernal pool

habitat is being damaged or destroyed by a variety of human-caused

activities, primarily urban development and agricultural conversion.

Habitat loss occurs from destruction and modification of vernal pools

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

well as the modification of surrounding uplands that alters vernal pool

watersheds.

Rapid urbanization of areas containing vernal pools poses a

significant threat to the San Diego fairy shrimp. Nearly all of the

vernal pools that occurred throughout the range of the species from

southern Santa Barbara County to extreme northwestern Baja California

have been eliminated (Keeler-Wolf et al. 1995). The majority of extant

vernal pools located in the range of the San Diego fairy shrimp are

found in San Diego County. According to Bauder (1986), 838 vernal pools

comprising 283 ha (698 ac) were eliminated by urban development between

1979 and 1986. Adequate mitigation measures were not implemented for

these areas. In general, the growth rate of the human population and

associated urban development in southern California and northwestern

Baja California is equal to or exceeds that of any other region in

California. San Diego is one of the fastest growing counties in the

nation, with a population increase of 349 percent between 1950 and 1990

(California Department of Finance 1993). The population growth rate

that is predicted could further fragment and degrade the remaining

vernal pool habitat of the San Diego fairy shrimp.

The following is a discussion of the status of the locations that

contain suitable vernal pool habit for the San Diego fairy shrimp.

San Diego County

Tijuana Slough National Wildlife Refuge

The vernal pool watershed is approximately 2 ha (5 ac) in size.

Construction of an improved fence on the United States/Mexican border

has apparently eliminated trampling caused by persons crossing the

border illegally.

Proctor Valley

This small vernal pool complex is located in an isolated valley

(Bauder 1986). The vernal pools are highly disturbed by grazing and ORV

traffic (Julie Vanderweir, USFWS, pers. obs.). The San Diego fairy

shrimp has been documented at this site. The vernal pools in Proctor

Valley are part of the MSCP.

Otay Mesa

The vernal pools at this site are located in several disjunct

locations across the southernmost mesa in California. Otay Mesa extends

from just south of the Otay River, across the international border into

Mexico, west to Interstate 805, and east to the foothills below Otay

Mountain. Historical and ongoing agricultural activities, such as

cattle ranching and dry land farming, have continually disturbed this

area and have destroyed 78 percent of the vernal pools once located on

Otay Mesa. The remaining vernal pools are scattered, with the only

sizeable areas of vernal pool habitat occurring on the northeastern

corner of Otay Mesa. The San Diego fairy shrimp has been documented at

this site (H. Wier and J. Brown, in litt., 1994). Portions of the

vernal pool complexes on Otay Mesa are part of the MSCP and are also

being considered for inclusion in the proposed San Diego National

Wildlife Refuge. Otay Mesa currently is farmed for truck crops and

barley and is grazed. However, significant portions have been or are

proposed for industrial and residential development in the Otay Mesa

Community Plan. This development is closely associated with development

projects that have been or will be implemented on the United States/

Mexican border. A proposed toll road would facilitate the development

of significant portions of Otay Mesa.

On west Otay Mesa, the proposed California Terraces residential

project will eliminate significant amounts of vernal pool habitat for

the San Diego

[[Page 4933]]

fairy shrimp. The Final Environmental Impact Report for this project

has been approved by the City of San Diego. Other proposed projects,

such as State Highway 905, Robinhood Ridge, Hidden Trails, and Santee

Investments also would adversely impact vernal pool habitat for this

animal.

On east Otay Mesa, the proposed Otay Ranch and State Highway 125

would impact approximately 9,300 ha (23,000 ac), including substantial

areas containing habitat for the San Diego fairy shrimp. Some of the

vernal pools located within these project areas are located in a

proposed biological reserve. However, the projects as proposed would

eliminate the majority of the habitat for the San Diego fairy shrimp.

On-going actions by the U.S. Border Patrol on Otay Mesa continue to

significantly impact vernal pools by ORV use and associated law

enforcement activities. Unauthorized discing and grading on Otay Mesa

also has impacted vernal pool habitat for the San Diego fairy shrimp.

Otay Lakes

These vernal pools consist of several scattered complexes, north

and south of the lake, not connected by any continuous mesa system

(Bauder 1986). Four vernal pool complexes at Otay Lakes are included in

the MSCP and are proposed to be included within the San Diego National

Wildlife Refuge. These pools are owned by the City of San Diego. A

proposed resort would eliminate all vernal pools that are located north

of the lake.

Sweetwater Reservoir

The vernal pools occur on the southwestern edge of Sweetwater

Reservoir in southern San Diego County. These pools are one of the few

remaining examples of isolated vernal pool habitat between the central

mesas of San Diego and Otay Mesa to the south (Bauder 1986). The

surrounding area has been brushed or grazed and consists primarily of

disturbed ruderal vegetation. Portions of the area containing vernal

pools have been proposed for urban development. Some of the vernal pool

complexes at Sweetwater Reservoir are included in the MSCP and are

proposed to be included within the San Diego National Wildlife Refuge.

However, the extension of State Route 125 may impact a portion of these

vernal pools.

Mission Trails County Park

The small vernal pool complex at this site is inhabited by the San

Diego fairy shrimp. The vernal pools are subject to damage caused by

bikes, trash dumping, and unrestricted hiking.

Linda Vista

Museum specimens of the San Diego fairy shrimp are known from Linda

Vista. However, these vernal pools have been eliminated by urban

development.

Kearney Mesa

The vernal pools on Kearney Mesa originally covered approximately

38 square km (15 square mi). However, the majority of this region has

been developed for residential and commercial uses.

The largest and most contiguous block and number of vernal pools in

southern California and northwestern Baja California occurs on Miramar

Naval Air Station. Weir and Bauder (1991) state that 70 percent of the

remaining vernal pools occur on military lands. Approximately 26 ha (65

ac) of vernal pools are located on the Miramar Naval Air Station. These

pools exhibit a wide variety of conditions from disturbed to pristine,

and vary greatly in size, depth, type and number of cobbles, soil type,

hydrological characteristics, and species composition. The San Diego

fairy shrimp has been estimated to inhabit 80 percent of the vernal

pools at the base (Branchiopod Research Group 1996). This military base

will be transferred from the U.S. Navy to the U.S. Marine Corps

(Department of the Navy 1996). The Marine Corps has proposed

construction of additional helicopter landing fields, ammunition

bunkers, and other facilities that may adversely affect areas

containing habitat for the San Diego fairy shrimp.

The vernal pools at Montgomery Field occur within the approach path

of the airport. This vernal pool complex is in a heavily urbanized area

surrounded by the airport, research and office developments, and

Interstate 15 and State Route 163. Three separate areas of airport land

encompass the watershed containing 138 vernal pools. Although this site

has been set aside for the protection of the vernal pools, in February

1995 unknown persons dug trenches which resulted in the draining of

some high-quality pools. The vernal pools at Montgomery Field are

included in the MSCP and are proposed to be part of the San Diego

National Wildlife Refuge.

The construction of a sludge processing facility and mounding of

excess dirt at the Miramar Landfill, as well as on-going landfill

maintenance have eliminated vernal pools inhabited by the San Diego

fairy shrimp. The proposed extension of Nobel Drive would damage or

eliminate the vernal pools containing habitat for the species.

Del Mar Mesa, Lopez Ridge, and Mira Mesa

The vernal pools found on Del Mar Mesa are part of a large mesa of

approximately 36 square km (14 square mi). Approximately 120 vernal

pools with a high diversity of sizes, depths, surface configuration,

and soil type occur in this area (Bauder 1986). The San Diego fairy

shrimp has been documented in vernal pools at this site (H. Wier and J.

Brown, in litt., 1994). Some of the vernal pool complexes at Del Mar

Mesa are included in the MSCP and are proposed to be included within

the San Diego National Wildlife Refuge. Residential development occurs

to the east, agriculture consisting of row-crop dry farming occurs in

McGonigle Canyon, and undeveloped private lands occur to the west.

The City of San Diego's proposed Future Urbanizing Area

Neighborhood 8A project would result in the damage or loss of several

vernal pools on Del Mar Mesa. Some of these vernal pools have recently

been scraped. The construction of two major roads is proposed in the

immediate vicinity of the California Department of Transportation

vernal pool reserve. If completed, these roads would result in further

isolation and fragmentation of these vernal pools and their watersheds,

as well as impacts to several pools outside of the reserve. Used

refrigerators, sofas, and other trash have been dumped in and around

the vernal pools outside of the vernal pool reserve.

Ninety of the vernal pools on Lopez Ridge are owned by the

California Department of Transportation and the City of San Diego. The

vernal pools have a wide variety of sizes and depths (Bauder 1986). The

area containing vernal pools on the north side of Carroll Canyon is

being quarried for sand and gravel. Some of the vernal pool complexes

at Lopez Ridge are included in the MSCP and are proposed to be included

within the San Diego National Wildlife Refuge. The remainder are

located on private property and are proposed to be developed for

residential housing. Although the publicly owned pools are protected

from development, ORV activity, proposed development immediately

adjacent to the preserve, and proposed restoration actions may threaten

the San Diego fairy shrimp at this locality (M. Simovich, pers. comm.,

1993).

Some of the vernal pools at Challenger High School in Mira Mesa

were filled without authorization under the Clean Water Act during the

winter

[[Page 4934]]

of 1987 to 1988. No restoration for this action has occurred to date; a

public park is proposed for this location.

Carlsbad

The small vernal pool complex in Carlsbad is located on a coastal

bluff in an urbanized area. The San Diego fairy shrimp has been

documented at this site (H. Wier and J. Brown, in litt., 1994).

Construction of a railroad station and associated facilities resulted

in the permanent loss of some of the vernal pools. The mitigation

consisted of restoration and preservation of additional habitat. The

remaining vernal pools are protected in a preserve.

Marine Corps Base Camp Pendleton

The vernal pools at Marine Corps Base Camp Pendleton are found on

the coastal bluffs in the vicinity of Interstate 5 north of the mouth

of the Santa Margarita River, and in the vicinity of Wire Mountain

(Bauder 1986). Mima mound topography (a natural patchwork of soil

mounds and surrounding flat ground) is well developed on the coastal

bluffs and the vernal pools vary greatly in size and depth. The vernal

pools on Wire Mountain, in the western portion of the base, are located

in a watershed consisting of coastal sage scrub. The vernal pools on

Wire Mountain have been fenced to prevent entry by casual visitors and

``keep out'' signs have been placed around a few of the pools. Many of

the vernal pools on the coastal bluffs continue to be damaged or

destroyed during military maneuvers.

Poway

The vernal pools in Poway were historically located north of Poway

Road and east of Interstate 15 (Bauder 1986). Some of the pools

occurred on mesa fingers and others were in grassy hills (Bauder 1986);

however, only three vernal pools were extant at this site by the end of

1987. The majority of the vernal pools at this site have been

eliminated by urban development. No conservation measures have been

undertaken or are proposed for the Poway vernal pools. Therefore, these

pools are still subject to potential urban development, ORV use, and

other human-caused disturbances.

Ramona

The vernal pools in Ramona are found in an inland valley

approximately 65 km (40 mi) from the coast (Bauder 1986). They

represent the easternmost and highest elevational occurrences in San

Diego County. These vernal pools, which vary in size and depth, are

located in non-native grassland and coastal sage scrub. Expansion of

the Ramona Airport may impact some of the vernal pools. Other vernal

pools have been eliminated by the construction of retail stores and the

realignment of Dye and Highland Roads. Bauder (1986) stated that

overgrazing by cattle has a significant impact on these pools. To date,

no proposal has been made to protect the Ramona vernal pools.

San Marcos

The vernal pools in San Marcos are more closely related, physically

and botanically, to vernal pools in Riverside County than those in San

Diego County (Bauder 1986). Two of the four vernal pool complexes in

San Marcos have been eliminated (Bauder 1986; Chris Nagano, USFWS,

pers. obs., 1996). The remaining complexes have been significantly

impacted by discing (F. Roberts, USFWS, pers. obs., 1995). Indirect

impacts, such as runoff from adjacent industrial areas, adversely

affect the vernal pools. No conservation measures have been undertaken

or are proposed for the San Marcos vernal pools, which the City of San

Marcos has requested be excluded from the proposed MHCP.

Orange County

The San Diego fairy shrimp has been recorded at Fairview Park in

the City of Costa Mesa. This site has been damaged by recreational

activities, such as dog walking, model airplane flying, and soccer

players. Insecticide spraying for mosquito control in the park also

likely adversely impacts the vernal pool habitat. The San Diego fairy

shrimp has been found inhabiting a single vernal pool located along the

proposed Antonio Parkway in southern Orange County.

Los Angeles County

The San Diego fairy shrimp has not been recorded from the two known

extant vernal pools in Los Angeles County.

Ventura County

The San Diego fairy shrimp has not been recorded from the two known

extant vernal pool complexes in Ventura County.

Santa Barbara County

Vernal pools are rare in Santa Barbara County; they are located at

Moore Mesa, Ellwood Mesa, and Isla Vista. All of the vernal pools in

this area have been or are currently imperiled by urban development,

ORVs, draining, and other human-caused factors (Ferren and Pritchett

1988). The Santa Barbara County vernal pools are now isolated from

those in San Diego County by substantial agricultural and urban

development in Ventura, Los Angeles, and Orange counties.

The vernal pools at Isla Vista are found in an isolated group that

occurs on a flat-topped coastal mesa. Despite intensive sampling, only

a single adult female San Diego fairy shrimp is known from the Del Sol

Open Space and Vernal Pool Reserve in Isla Vista. This park is owned

and managed by the Isla Vista Recreation and Park District, a local

agency (Ferren and Pritchett 1988). Directed surveys of vernal pools in

Isla Vista for fairy shrimp have not located any additional San Diego

fairy shrimp individuals (M. Simovich, pers. comm., 1994).

Baja California

Few vernal pool complexes in Baja California are similar to those

in San Diego County. The vernal pool complex at Valle de las Palmas,

located south of Tecate, contains several proposed or rare plant

species (Brown et al. 1993). The vernal pools at Valle de las Palmas

are being adversely affected by cattle grazing, agriculture, and

removal of clay soil for pottery and bricks. The highly disturbed

vernal pool complex located at Bajamar, north of Ensenada, is imperiled

by cattle grazing and potentially from chemical spills from the

adjacent highway. No Federal, State, or local regulations protect the

vernal pools or the San Diego fairy shrimp in Mexico.

The San Diego fairy shrimp is especially vulnerable to alterations

in hydrology. Its vernal pool habitat is also vulnerable to indirect

destruction due to the alteration of supporting watersheds. Development

projects adjacent to vernal pools are often responsible for adverse

alterations in drainage. Hydrological alterations can result from urban

or agricultural development or a combination of these activities. An

increase in water due to urban run-off leads to increased inundation,

making the pools vulnerable to invasion by marsh plant species that

outcompete obligate (restricted to) vernal pool taxa, resulting in

decreased abundance of obligate vernal pool taxa. At the other extreme,

some pools have been drained or blocked from their source of water and

have shown an increased domination by upland plant species. Alterations

in vernal pool hydrology may adversely impact the San Diego fairy

shrimp due to changes in the maximum and minimum water temperatures.

Filling of vernal pool wetlands without authorization from the

Corps also poses a threat to this species. The Service is aware of 15

actions that

[[Page 4935]]

occurred between 1993 and 1996 in San Diego County, including urban

development, that have resulted in the damage or destruction of

approximately 40 vernal pools, exclusive of associated watersheds, that

likely provided habitat for the San Diego fairy shrimp (S. Wynn, F.

Roberts, unpub. notes). At least three 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 (U.S. Army Corps of Engineers 1987). Similar

deliberate activities that are damaging or destroying vernal pools are

likely occurring throughout the range of the San Diego fairy shrimp (S.

Wynn, unpub. notes). 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.

No known diseases affect the San Diego fairy shrimp. Fairy shrimp

are a food item in the diet of migratory waterfowl and other native

animals (Krapu 1974, Swanson et al. 1974). However, this naturally

occurring predation is not considered a threat to the continued

existence of the San Diego fairy shrimp.

D. The Inadequacy of Existing Regulatory Mechanisms

The primary cause for the decline of this species is loss of

habitat due to human activities. No State or local laws exist that

adequately protect the San Diego fairy shrimp. Other regulatory

mechanisms necessary for the conservation of its vernal pool habitat

have also proven inadequate and ineffective.

Existing regulatory mechanisms that could provide some protection

for the San Diego fairy shrimp include: (1) section 404 of the Federal

Clean Water Act; (2) occurrence with other species protected by the

Federal Endangered Species Act; (3) consideration under the California

Environmental Quality Act (CEQA); (4) implementation of conservation

plans pursuant to the State of California's Natural Community

Conservation Planning Act of 1991 (NCCP), including the San Diego

Multiple Species Conservation Plan (MSCP), the San Diego County

Multiple Habitat Conservation Plan (MHCP), and the Central/Coastal

Orange County NCCP/HCP; (5) local laws and regulations; (6) Federal

land management responsibilities; and (7) Mexican law.

Clean Water Act

Under section 404 of the Clean Water Act, the Corps regulates the

discharge of fill into waters of the United States, including navigable

waters, wetlands (e.g., vernal pools), and other waters (33 CFR parts

320-330). The Clean Water Act requires project proponents to obtain a

permit from the Corps prior to undertaking many activities (e.g.,

grading, discharge of soil or other fill material) that would result in

the filling of wetlands subject to the Corps' jurisdiction. The Corps

promulgated Nationwide Permit Number 26 to address fill of isolated or

headwater wetlands totaling less than 10 acres. Under the 1996

reauthorized Nationwide Permit 26 (61 FR 65873), project proposals that

involve the fill of wetlands of less than one-third of an acre are

considered authorized. Fill of between one-third and one acre requires

notification only to the Corps. Where fill would adversely modify

between 1 and 3 acres of wetland, the Corps circulates a predischarge

notification to the Service and other interested parties for comment to

determine whether an individual permit should be required for a

proposed fill activity and associated impacts.

Individual Corps permits are required for discharge of material

that would fill or adversely modify more than 3 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 instead

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 the San Diego fairy shrimp encompass less than 1 acre. 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 generally less than 1 acre, and therefore,

most projects qualify for Nationwide Permit 26. Discing and other

farming or ranching practices, including grazing, can degrade or

destroy vernal pool habitat without a permit from the Corps because

many of these activities are exempt from regulation under the Clean

Water Act (33 CFR 323.4(a)). The discontinuous configuration of the

pools and swales further obscures separation of these wetland losses.

Endangered Species Act

The Act can incidentally afford protection to San Diego fairy

shrimp if they co-exist with species already listed as threatened or

endangered. Pogogyne abramsii (San Diego mesa mint), P. nudiscula (Otay

mesa mint), Orcuttia californica (California orcutt grass), Eryngium

aristulatum var. parishii (San Diego button celery), and the Riverside

fairy shrimp (Streptocephalus wootoni) are listed as endangered under

the Act and occur in the same habitat as the San Diego fairy shrimp.

However, these species are not always found in the same vernal pools or

vernal pool complexes as the San Diego fairy shrimp. The Riverside

fairy shrimp and San Diego fairy shrimp are known to co-exist in only

three vernal pool complexes in San Diego County. Within a vernal pool

complex, the San Diego fairy shrimp often does not occur in the same

pools as listed plant species. Except for the Riverside fairy shrimp,

these other noted vernal pool species are plants for which the Act does

not provide prohibitions against take. Therefore, the umbrella

protection that they may provide would only occur if a proposed

federally funded or authorized action would jeopardize the continued

existence of those species, as determined in a biological opinion

developed under section 7 of the Act.

California Environmental Quality Act

Section 15380 of the CEQA requires that impacts to any taxon that

meets the criteria for listing under the California Endangered Species

Act be treated as significant regardless of its current listing status.

The San Diego fairy shrimp has been recognized as a distinct taxon by

the scientific and local conservation communities since 1990. Impacts

to this species would qualify as significant under section 15380 of the

CEQA even though this species was not described taxonomically until

1993 (Fugate 1993). However, this taxon has only been considered in a

limited number of environmental impact reports since 1990. Required

biological surveys are often inadequate and project

[[Page 4936]]

proponents may ignore the results of surveys if occurrences of

sensitive species are viewed as a constraint on project design.

Mitigation measures used to condition project approvals are essentially

experimental and fail to adequately guarantee protection of the

populations. 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 scientifically

demonstrated to be successful (Ferren and Gevirtz 1990; Zedler and

Black 1988; M. Simovich, in litt., 1992). For example, in San Diego

County, vernal pools containing the San Diego fairy shrimp and the

federally and State-listed San Diego mesa mint were destroyed without

adequate environmental documentation or coordination with the Service

and the California Department of Fish and Game.

Natural Communities Conservation Planning Act

In 1991, the State of California passed the NCCP Act to address the

conservation needs of natural ecosystems throughout the State. The

initial focus of this program was the coastal sage scrub community in

southern California, although other associated vegetation communities

are also being addressed in this ecosystem-based planning approach. The

San Diego fairy shrimp is found in vernal pools that are often not

located in coastal sage scrub. However, the San Diego fairy shrimp is

being treated as a covered species under the MSCP plan and MHCP. These

plans, under development by the County of San Diego and its coastal

cities, are being integrated as components of the NCCP program. The

MSCP is developed and is currently undergoing the final stages of the

public review process. The MHCP is still in the developmental phase,

and it is uncertain as to how successful it will be in providing

protection for this species. The Central/Coastal Orange County NCCP/HCP

(approved by the Service on July 17, 1996) treats the San Diego fairy

shrimp as a ``conditionally covered'' species and provides coverage for

this species under the section 10(a)(1)(B) ``incidental take'' permits

only for highly degraded and/or artificial habitat. Non-degraded,

natural vernal pool habitat is not covered. The San Diego fairy shrimp

has not been confirmed in the Central/Coastal NCCP/HCP planning area.

If present, it would likely occur in highly degraded and/or artificial

habitat, where incidental take would be allowed under the permit.

Local Laws and Regulations

The San Diego fairy shrimp is not specifically protected under any

local laws or regulations. The San Diego fairy shrimp occurs within the

California Department of Transportation Vernal Pool Preserve on Del Mar

Mesa. Although these pools are being managed for the long-term

protection of vernal pool flora and fauna, ORV activity, proposed

development immediately adjacent to the preserve, and proposed

restoration actions may threaten the San Diego fairy shrimp at this

locality (M. Simovich, pers. comm., 1993).

The San Diego Vernal Pool Preservation Program, enacted by the City

of San Diego in 1980, did not include adequate protection for vernal

pools, nor did it contain sufficient mitigation to compensate for the

loss of vernal pools. More than 800 pools have been destroyed under the

preservation plan, and only three sites containing approximately 8 ha

(21.8 ac) of watersheds containing vernal pools have been purchased

using $882,000 of the mitigation funds. The preservation program did

not collect sufficient funds to mitigate the vernal pool land area

lost, nor did it include suitable preserve size, design configuration,

or adequate management.

Federal Land Management Responsibilities

The Service has proposed a National Wildlife Refuge in San Diego

County which includes a proposed Vernal Pool Stewardship Project. The

Draft Environmental Assessment for the Vernal Pools Stewardship Project

was released in November of 1996. Approval of the Vernal Pools

Stewardship Project does not grant the Service jurisdiction or control

over lands within the project boundary, nor does it automatically make

lands within the project boundary part of the National Wildlife Refuge

System (NWRS). Lands do not become part of the NWRS until they are

purchased by the Service or are placed under an agreement that provides

for management as part of the refuge system. Service policy is to

acquire lands only from willing sellers. To date, the Service has not

purchased any lands for inclusion in the vernal pool unit, nor are any

lands under an agreement to be managed as part of the refuge. Proposed

projects are located within several of the areas recommended for

inclusion in the vernal pool refuge. On Otay Mesa and below the

Sweetwater Reservoir, the proposed alignment for State Route 125

intersects lands within the proposed refuge boundary. Because these

lands have not been purchased, the Federal Highways Administration does

not have to complete an evaluation pursuant to section 4(f) of the U.S.

Department of Transportation Act (49 U.S.C. 303). In addition, a resort

is proposed within the unit located above Otay Lakes that would

eliminate the vernal pools on that site.

The San Diego fairy shrimp is found on Federal lands managed by the

U.S. Navy at Cholla Heights Naval Housing and Miramar Naval Air

Station, and the U.S. Marine Corps at Camp Pendleton. These lands are

used, in part, for military training activities that involve ORV

maneuvers that adversely impact the species (Hogan and Belk 1992). The

air station will be transferred to the Marine Corps on October 1, 1997.

The Marine Corps has indicated that they will not allow a National

Wildlife Refuge overlay on the air station (Department of the Navy

1996); however, they have agreed to place a vernal pool stewardship

overlay on the areas of the base containing vernal pools. The Marine

Corps stated that they will implement management plans for the vernal

pools at Miramar Naval Air Station and Camp Pendleton, but none has

been prepared to date. Surrounding privately owned vernal pool habitat

and watershed is not protected.

Mexican Law

The Service is not aware of any existing regulatory mechanisms that

would protect the San Diego fairy shrimp or its habitat where it occurs

in northwestern Baja California, Mexico.

E. Other Natural or Man-Mmade Factors Affecting Their Continued

Existence

Secondary impacts associated with urbanization include disposal of

waste materials into habitat for the San Diego fairy shrimp. 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 (Bauder 1986,

1987). Malathion, herbicides, laundry detergent, household plant

fertilizer, and motor oil have been documented to be fatal to the San

Diego fairy shrimp through poisoning of the animals or by the formation

of a barrier to gas exchange on the surface of the water, which can

result in asphyxiation (Branchiopod Research Group 1996). Dust and

other forms of air or water pollution from commercial development or

agricultural projects may also be deleterious to this animal.

ORV use also imperils the San Diego fairy shrimp. ORVs crush fairy

shrimp eggs (Ericksen et al. 1986); less than the weight of an apple

can crush dormant

[[Page 4937]]

fairy shrimp eggs (Branchiopod Research Group 1996). ORVs can also cut

deep ruts, compact soil, destroy native vegetation, and alter pool

hydrology. Fire fighting activities, security patrols, military

maneuvers, and recreational activities have cumulatively damaged vernal

pool habitats in many areas within the range of the species (Bauder

1986, 1987). On the Otay Mesa, law enforcement-related ORV use by the

U.S. Border Patrol has adversely impacted vernal pools known to be

inhabited by the San Diego fairy shrimp.

Cattle grazing occurs on Otay Mesa, Otay Lakes, and Ramona in areas

where several vernal pool complexes contain the San Diego fairy shrimp.

Overgrazing in areas containing the animal and its habitat is likely

detrimental. High levels of pasture runoff may lead to increased

siltation of vernal pool habitat. High livestock densities may result

in excessive physical disturbance, such as trampling, and cause changes

in pool water chemistry and water quality. Impacts due to overgrazing

have been described as analogous to those from vehicle traffic (e.g.,

causing deep tracks, burying eggs, and trampling individuals) (Bauder

1986, 1987).

The Service has carefully assessed the best available scientific

and commercial information regarding past, present, and future threats

faced by the San Diego fairy shrimp in determining to issue this final

rule. Based on this evaluation, the preferred action is to list the San

Diego fairy shrimp as endangered. This species is imperiled by rapid

urbanization, conversion of land to agricultural use, vehicle use,

extremely limited available habitat (less than 81 ha (200 ac) of vernal

pools), and changes in hydrologic patterns in areas where they occur.

Numerous ongoing and proposed development projects pose an imminent

threat to the San Diego fairy shrimp. Extraordinary increases in the

human population and associated pressures from urban development have

rendered existing regulatory mechanisms inadequate. All of the known

populations of the San Diego fairy shrimp are imperiled. Only a portion

of the extant vernal pools would be protected under the MSCP and/or the

proposed San Diego National Wildlife Refuge. Because the San Diego

fairy shrimp has been extirpated from all but approximately 81 ha (200

ac) of vernal pool habitat, and because of the threats to the species

discussed above, the San Diego fairy shrimp is in danger of extinction

throughout all or a significant portion of its range and thus meets the

definition of endangered as defined in the Act. Designation of critical

habitat for the San Diego fairy shrimp is not prudent for the reasons

discussed below.

Critical Habitat

Critical habitat is defined in section 3 of the Act as--(I) the

specific areas within the geographical area occupied by a species, at

the time it is listed in accordance with the Act, on which are found

those physical or biological features (I) essential to the conservation

of the species and (II) that may require special management

consideration or protection; and (ii) specific areas outside the

geographical area occupied by a species at the time it is listed, upon

a determination that such areas are essential for the conservation of

the species. ``Conservation'' means the use of all methods and

procedures needed to bring the species to the point at which listing

under the Act is no longer necessary.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12) require that, to the maximum extent prudent

and determinable, the Secretary designate critical habitat concurrently

with determining a species to be endangered or threatened. The Service

finds that the designation of critical habitat is not prudent for the

San Diego fairy shrimp. Service regulations at 50 CFR 424.12(a)(1)

state that designation of critical habitat is not prudent when one or

both of the following situations exist: (1) The species is threatened

by taking or other human activity, and identification of critical

habitat can be expected to increase the degree of such threat to the

species, or (2) such designation of critical habitat would not be

beneficial to the species. Because the San Diego fairy shrimp faces

numerous human-caused threats (see Factors ``A'' and ``E'' above), the

publication of precise maps and descriptions of critical habitat in the

Federal Register would make this species more vulnerable to incidents

of vandalism and, therefore, would contribute to the decline of the

species. A number of sites inhabited by the San Diego fairy shrimp

occur on private land that is undergoing rapid urban development and

agricultural conversion. As documented in this rule, 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 the animal. Protection

of the habitat of the species will be addressed through the recovery,

section 7 consultation, and incidental take permit processes. Federal

involvement in areas where the animal occurs can be identified without

designation of critical habitat. Therefore, the Service finds that

designation of critical habitat for the San Diego fairy shrimp is not

prudent at this time, because such designation would likely 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 Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

activities. Recognition through listing encourages and results in

public awareness and conservation actions by Federal, State, and local

agencies, private organizations, and individuals. The Act provides for

possible land acquisition and cooperation with the States and requires

that recovery plans be developed for listed species. The protection

required by Federal agencies and the prohibitions against taking and

harm 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 and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

part 402. Section 7(a)(1) requires Federal agencies to use their

authorities to further the purposes of the Act by carrying out programs

for listed species. Section 7(a)(2) of the Act requires Federal

agencies to insure that activities they authorize, fund, or carry out

are not likely to jeopardize the continued existence of the species. If

a Federal action is likely to adversely affect a listed species, the

responsible Federal agency must enter into formal consultation with the

Service.

Federal agencies expected to have involvement with the San Diego

fairy shrimp include the Army Corps of Engineers and the Environmental

Protection Agency due to their permit authority under section 404 of

the Clean Water Act. 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.

The San Diego fairy shrimp occurs on Miramar Naval Air Station,

Marine Corps Base Camp Pendleton, and Cholla Heights Naval Housing.

These bases will likely be involved through military

[[Page 4938]]

activities or potential excessing of Federal lands. The Department of

Transportation (Federal Highways Administration) may possibly be

affected by the listing of this species because some populations occur

on properties where federally funded roadways may be constructed.

Activities undertaken by the U.S. Border Patrol may affect vernal pools

containing the species along the international border. The Federal

Aviation Administration will be affected through activities they fund,

permit, or authorize at the Ramona Airport and Montgomery Field

Airport. In addition, the Department of Housing and Urban Development

(HUD) may insure housing loans in areas that presently support San

Diego fairy shrimp. HUD actions regarding these loans would also be

subject to review by the Service under section 7 of the Act.

The listing of the San Diego fairy shrimp also brings sections 5

and 6 of the Act into effect. Section 5 authorizes acquisition of lands

for the purposes of conserving endangered and threatened species.

Pursuant to section 6, the Service will be able to grant funds to the

affected State for management actions aiding in protection and recovery

of the species.

Listing the San Diego fairy shrimp as endangered provides for the

development and implementation of a recovery plan for the species. Such

a plan will bring together State and Federal efforts for conservation

of the species. The plan will establish a framework for agencies to

coordinate activities and cooperate with each other in conservation

efforts. The plan will set recovery priorities and estimate the costs

of various tasks necessary to accomplish the priorities. It also will

describe site-specific management actions necessary to achieve

conservation and survival of the San Diego fairy shrimp.

The Act and its implementing regulations set forth a series of

prohibitions and exceptions that apply to all endangered wildlife. The

prohibitions, codified at 50 CFR 17.21 for endangered wildlife, in

part, make it illegal for any person subject to the jurisdiction of the

United States to take (includes harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect; or to attempt any of these),

import or export, ship in interstate or foreign commerce in the course

of commercial activity, or sell or offer for sale in interstate or

foreign commerce any listed species. It also is illegal to possess,

sell, deliver, carry, transport, or ship any such wildlife that has

been taken illegally. Certain exceptions apply to agents of the Service

and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving endangered wildlife under certain circumstances. Regulations

governing permits are codified at 50 CFR 17.22 and 17.23. Such permits

are available for scientific purposes, to enhance the propagation or

survival of the species, and/or for incidental take in connection with

otherwise lawful activities.

It is the policy of the Service, published in the Federal Register

on July 1, 1994 (59 FR 34272), to identify to the maximum extent

practicable at the time a species is listed those activities that would

constitute a violation of section 9 of the Act. The intent of this

policy is to increase public awareness of the effect of the listing on

proposed and on-going activities within a species' range. Activities

that could potentially result in ``take'' of the San Diego fairy shrimp

include, but are not limited to: unauthorized collecting or handling of

the animal, unauthorized pesticide applications within the vernal pool

habitat of the species, or intentional or unauthorized damage or

destruction of its habitat (e.g., ORV use, urban development or

agricultural conversion that damages or destroys the vernal pools or

alters their hydrology), violation of the terms and conditions of

discharge permits, and discharges or dumping of toxic chemicals, silt

fertilizers, oil, organic wastes, or other pollutants into waters

supporting the species.

Activities that the Service believes are unlikely to result in a

violation of section 9 are: possession, delivery, or movement,

including interstate transport and import into or export from the

Unites States, involving no commercial activity, of dead specimens of

the San Diego fairy shrimp that were collected prior to the date of

publication in the Federal Register of the final regulation adding this

species to the list of endangered species; and federally approved

projects that involve activities such as discharge of fill material,

draining, ditching, tiling, pond construction, stream channelization or

diversion, or alteration of surface or ground water into or out of a

wetland (i.e., due to roads, impoundments, discharge pipes, storm water

detention basins, etc.), when such activity is conducted in accordance

with any reasonable and prudent measures given by the Service in

accordance with section 7 of the Act.

Questions regarding whether specific activities will constitute a

violation of section 9 of the Act should be directed to the Field

Supervisor of the Service's Carlsbad Field Office (see ADDRESSES

section). Requests for copies of the regulations regarding listed

wildlife and inquiries about prohibitions and permits should be

addressed to U.S. Fish and Wildlife Service, Ecological Services,

Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon

97232-4181 (telephone 503/231-2063, facsimile 503/231-6243).

Reasons for Effective Date

The Service is concerned that issuance of a final rule for this

species that is not effective immediately upon publication will result

in continued deliberate damage to vernal pools inhabited by the San

Diego fairy shrimp. As discussed under Factor ``A'' above, on-going

alteration of vernal pool hydrology and destruction of pools has been

documented by the Service. Because of the immediate threat to the

continued existence of the San Diego fairy shrimp 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).

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental

Assessments and Environmental Impact Statements, 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 in this rule is available

upon request from the Carlsbad Field Office (see ADDRESSES section).

Required Determinations

The Service has examined this regulation under the Paperwork

Reduction Act of 1995 and found it to contain no information collection

requirements. This rulemaking was not subject to review by the Office

of Managment and Budget under Executive Order 12866.

Authors

The primary authors of this final rule are Chris Nagano and Susan

Wynn, Carlsbad Field Office (see ADDRESSES section).

[[Page 4939]]

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Regulation 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 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

where When Critical Special

Historic range endangered Status listed habitat rules

Common name Scientific name or

threatened

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

Crustaceans

* * * * * * *

Fairy shrimp, San Diego............... Branchinecta U.S.A. (CA), Mexico...... NA E 608 NA NA

sandiegonensis.

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: January 27, 1997.

John G. Rogers,

Acting Director, U.S. Fish and Wildlife Service.

[FR Doc. 97-2578 Filed 1-31-97; 8:45 am]

BILLING CODE 4310-55-P