[Federal Register Volume 62, Number 22 (Monday, February 3, 1997)]
[Rules and Regulations]
[Pages 4925-4939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2578]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
