[Federal Register Volume 59, Number 180 (Monday, September 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23156]
[[Page Unknown]]
[Federal Register: September 19, 1994]
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Part V
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status and Withdrawal of Proposal to Give Endangered Status;
Final Rule and Proposed Rule
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AB75
Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for the Conservancy Fairy Shrimp, Longhorn Fairy
Shrimp, and the Vernal Pool Tadpole Shrimp; and Threatened Status for
the Vernal Pool Fairy Shrimp
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines
endangered status pursuant to the Endangered Species Act of 1973, as
amended (Act) for the Conservancy fairy shrimp (Branchinecta
conservatio), longhorn fairy shrimp (Branchinecta longiantenna), and
the vernal pool tadpole shrimp (Lepidurus packardi); and threatened
status for the vernal pool fairy shrimp (Branchinecta lynchi). These
four invertebrate species are restricted to vernal pools in the State
of California and are in danger of extinction principally as the result
of urban development, conversion of native habitats to agriculture, and
stochastic (random) extinction by virtue of the small isolated nature
of many of the remaining populations. This rule implements Federal
protection and recovery provisions afforded by the Act for all of these
animals.
One species, the California linderiella (Linderiella occidentalis),
which had been proposed for listing with the above species, has been
withdrawn. Additional information that has become available to the
Service since the publication of the proposed rule reveals that this
species is more abundant than previously known. The Service has
considered the additional information and has determined that the
California linderiella is not likely to become either endangered or
threatened throughout all or a significant portion of its range in the
foreseeable future, and it does not qualify for listing under the Act.
A notice withdrawing the proposal is published in the Federal Register
concurrently with this final rule.
EFFECTIVE DATE: September 19, 1994.
ADDRESSES: The complete file for this final rule is available for
public inspection, by appointment, during normal business hours at the
Sacramento Field Office, U.S. Fish and Wildlife Service, 2800 Cottage
Way Room E-1823, Sacramento, California 95825-1846.
FOR FURTHER INFORMATION CONTACT:
Chris Nagano or Jim Browning at the above address or by telephone (916/
978-4866).
SUPPLEMENTARY INFORMATION:
Background
The Conservancy fairy shrimp, longhorn fairy shrimp, and the vernal
pool fairy shrimp are members of the aquatic crustacean order
Anostraca. The vernal pool tadpole shrimp is a member of the aquatic
crustacean order Notostraca. They are endemic to vernal pools in the
Central Valley, coast ranges, and a limited number of sites in the
Transverse Range and Santa Rosa Plateau of California.
The three fairy shrimp and the vernal pool tadpole shrimp live in
vernal pools, an ephemeral freshwater habitat. None are known to occur
in riverine waters, marine waters, or other permanent bodies of water.
They are ecologically dependent on seasonal fluctuations in their
habitat, such as absence or presence of water during specific times of
the year, duration of inundation, and other environmental factors that
include specific salinity, conductivity, dissolved solids, and pH
levels. Water chemistry is one of the most important factors in
determining the distribution of fairy shrimp and tadpole shrimp (Belk
1977; Jamie King, University of California, in litt., 1992; Marie
Simovich, University of San Diego, in litt., 1992). The four species
included in this final rule are sporadic in their distribution, often
inhabiting only one or a few pools in otherwise more widespread vernal
pool complexes (Larry Eng, California Department of Fish and Game,
pers. comm., 1990; Jamie King, in litt., 1992; Marie Simovich, in
litt., 1992; Richard Brusca, San Diego Museum of Natural History, pers.
comm., 1992).
Fairy shrimp have delicate elongate bodies, large stalked compound
eyes, no carapace, and 11 pairs of swimming legs. They swim or glide
gracefully upside down by means of complex beating movements of the
legs that pass in a wave-like anterior to posterior direction. Nearly
all fairy shrimp feed on algae, bacteria, protozoa, rotifers, and bits
of detritus (Pennak 1989). The second pair of antennae in the adult
females are cylindrical and elongate, but in the males are greatly
enlarged and specialized for clasping the females during copulation.
The females carry the eggs in an oval or elongate ventral brood sac.
The eggs are either dropped to the pool bottom or remain in the brood
sac until the female dies and sinks. The ``resting'' or ``summer'' eggs
are capable of withstanding heat, cold, and prolonged desiccation. When
the pools refill in the same or subsequent seasons some, but not all,
of the eggs may hatch. The egg bank in the soil may be comprised of the
eggs from several years of breeding (Donald 1983). The eggs hatch when
the vernal pools fill with rainwater. The early stages of the fairy
shrimp develop rapidly into adults. These non-dormant populations often
disappear early in the season long before the vernal pools dry up.
Tadpole shrimp have dorsal compound eyes, a large shield-like
carapace that covers most of the body, and a pair of long cercopods at
the end of the last abdominal segment (Brusca and Brusca 1991; Pennak
1989; Linder 1952; Longhurst 1955a; Lynch 1966, 1972). They are
primarily benthic animals that swim with their legs down. Tadpole
shrimp climb or scramble over objects, as well as plow along in bottom
sediments. Their diet consists of organic detritus and living
organisms, such as fairy shrimp and other invertebrates (Pennak 1989;
Fryer 1987). Mating in tadpole shrimp is described by Longhurst
(1955b). The females deposit their eggs on vegetation and other objects
on the bottom. Vernal pool tadpole shrimp populations pass the dry
summer months as diapaused eggs in pool sediments. Some of the eggs
hatch as the vernal pools are filled with rainwater in the fall and
winter of subsequent seasons.
Vernal pools have a discontinuance occurrence in several regions of
California. Generally vernal pool habitat is found west of the Sierra
Nevada and extends from southern Oregon into northern Baja, California
(Holland and Jain 1977, 1988). Vernal pools form in regions with
Mediterranean climates where shallow depressions fill with water during
fall and winter rains and then evaporate in the spring (Collie and
Lathrop 1976; Holland 1976, 1978; Holland and Jain 1977, 1988; Norwick
1992; Thorne 1984). Overbank flooding from intermittent streams may
augment the amount of water in some vernal pools (Hanes et al. 1990).
Downward percolation is prevented by the presence of an impervious
subsurface layer, such as a claypan, hardpan, or volcanic stratum
(Holland 1976, 1988). Due to local topography and geology, the pools
are usually clustered into pool complexes (Holland and Jain 1988).
Pools within a complex typically are separated by distances on the
order of meters and may form dense, interconnected mosaics of small
pools or a more sparse scattering of larger pools. Temporary inundation
makes vernal pools too wet during the wetted period for adjacent upland
plant species adapted to drier soil conditions, while rapid drying
during late spring makes pool basins unsuitable for typical marsh or
aquatic species that require a more permanent source of water. However,
many indigenous plant and aquatic invertebrate species have evolved to
occupy the extreme environmental conditions found in vernal pool
habitats. Fairy shrimp and tadpole shrimp play an important role in the
community ecology of many ephemeral water bodies (R. Brusca, pers.
comm., 1992; Loring et al. 1988). They are fed upon by waterfowl (Ahl
1991; Driver 1981; Krapu 1974; Swanson et al. 1974) and other
vertebrates, such as western spadefoot toad (Scaphiopus hammondi)
tadpoles (M. Simovich, pers. comm., 1991).
The genetic characteristics of the three fairy shrimp and the
vernal pool tadpole shrimp, as well as ecological conditions, such as
watershed contiguity, indicate that populations of these animals are
defined by pool complexes rather than by individual vernal pools
(Fugate 1992; J. King, unpubl. data). Therefore, the most accurate
indication of the distribution and abundance of the four vernal pool
crustaceans is the number of inhabited vernal pool complexes.
Individual vernal pools occupied by the four species listed herein are
most appropriately referred to as subpopulations.
Urban, water, flood control, highway, and utility projects, as well
as conversion of wildlands to agricultural use, have eliminated vernal
pools in southern California (Riverside and San Diego Counties), the
Central Valley, and San Francisco Bay area (Jones and Stokes Associates
1987). Changes in hydrologic pattern, overgrazing, and off-road vehicle
use also imperil this aquatic habitat and the four species listed
herein. Human activities that alter the watershed of vernal pools
indirectly affect these animals. The flora and fauna in vernal pools or
swales can change if the hydrologic regime is altered (Bauder 1986,
1987). Anthropogenic activities that reduce the extent of the watershed
or that alter runoff patterns (i.e., amounts and seasonal distribution)
may eliminate the animals, reduce their population sizes or
reproductive success, or shift the location of sites inhabited by these
animals.
According to Holland (1978), there were an estimated 1.7 million
hectares (4.2 million acres) in the Central Valley that possibly
supported vernal pools at the time Europeans arrived in California.
Holland estimated that between 67 and 88 percent of this acreage was
destroyed by 1973, largely by human activities (Holland 1978). However,
both the acreage of historic vernal pool habitat and estimates of loss
determined in this study have been disputed by others. Vernal pools in
southern California have been highly impacted by human activities
(Zedler 1987). The rate of loss of vernal pool habitat in parts of
California has been estimated to occur at approximately 2 or 3 percent
per year (Holland 1988).
Discussion of the Four Species
The Conservancy fairy shrimp (Branchinecta conservatio), a member
of the family Branchinetidae, was described from specimens collected at
the Jepson Prairie Preserve, located in the Central Valley east of
Travis Air Force Base in Solano County (Eng et al. 1990). The animal
ranges in size from 14 to 27 millimeters (0.6 to 1.1 inches) long and
is most similar in appearance to Lindahl's fairy shrimp (Branchinecta
lindahli). However, the female brood pouch is fusiform and usually ends
under abdominal segment 8 in the Conservancy fairy shrimp, whereas the
pouch is cylindrical and usually ends under segment 4 in Lindahl's
fairy shrimp. The large, oval pulvillus at the proximal end of the
basal segment of the male antenna appears similar in both species,
however, the terminal end of the distal antennal segments of the
Conservancy fairy shrimp are distinctive (Eng et al. 1990).
The Conservancy fairy shrimp inhabits vernal pools with highly
turbid water. The species is known from six disjunct populations: Vina
Plains, Tehama County; south of Chico, Tehama County; Jepson Prairie,
Solano County; Sacramento National Wildlife Refuge, Glenn County (Joe
Silviera, U.S. Fish and Wildlife Service, pers. comm., 1993), near
Haystack Mountain northeast of Merced in Merced County; and the
Lockewood Valley of northern Ventura County (Michael Fugate, University
of California at Riverside, pers. comm., 1991). The pools inhabited by
the Conservancy fairy shrimp are large, such as the 36 hectare (89
acre) Olcott Lake at Jepson Prairie (Eng, pers. comm., 1990). The
Conservancy fairy shrimp has been observed from November to early
April. The pools at Jepson Prairie and Vina Plains inhabited by this
animal have very low conductivity, total dissolved solids (TDS), and
alkalinity (Barclay and Knight 1984; Eng et al. 1990). The Conservancy
fairy shrimp is usually collected at cool temperatures and appears to
be relatively long-lived (Simovich et al. 1992; Patton 1984).
The longhorn fairy shrimp (Branchinecta longiantenna), a member of
the family Branchinectidae, was described from specimens collected at
Souza Ranch in the Kellogg Creek watershed, about 35 kilometers (22
miles) southeast of the City of Concord, Contra Costa County (Eng et
al. 1990). It ranges in size from 12.1 to 20.8 mm (0.5 to 0.8 inches).
This species differs from other branchinectids in that a portion of the
distal segment of its antennae is flattened in the antero-posterior
plane rather than the latero-medial plane.
The longhorn fairy shrimp inhabits clear to turbid grass-bottomed
vernal pools in grasslands and clear-water pools in sandstone
depressions. This species is known only from four disjunct populations
along the eastern margin of the central coast range from Concord,
Contra Costa County south to Soda Lake in San Luis Obispo County: the
Kellogg Creek watershed, the Altamont Pass area, the western and
northern boundaries of Soda Lake on the Carrizo Plain (Eng et al.
1990), and Kesterson National Wildlife Refuge in the Central Valley
(Dennis Woolington, U.S. Fish and Wildlife Service, in litt. 1993). All
vernal pools inhabited by this species are filled by winter and spring
rains and may remain inundated until June. The longhorn fairy shrimp
has been observed from late December until late April. The water is
grassland pools inhabited by this species has very low conductivity,
TDS, and alkalinity (Eng et al. 1990).
The vernal pool fairy shrimp (Branchinecta lynchi), a member of the
family Branchinectidae, was described from specimens collected at Souza
Ranch in the Kellogg Creek watershed, Contra Costa County, California
(Eng et al. 1990). It ranges in size from 10.9 to 25.0 mm (0.4 to 1.0
inches). This species most resembles the Colorado fairy shrimp
(Branchinecta coloradensis). There are several differences in the
antennae of the males of the two species, including the basal segment
outgrowth below and posterior to the pulvillus, which is ridge-like in
the vernal pool fairy shrimp but is cylindrical and often much larger
in the Colorado fairy shrimp. The shorter brood pouch of the vernal
pool fairy shrimp is pyriform, whereas the longer one in the Colorado
fairy shrimp is fusiform (Eng et al. 1990).
Although the vernal pool fairy shrimp has a relatively wide range,
the majority of known populations inhabit vernal pools with clear to
tea-colored water, most commonly in grass or mud bottomed swales, or
basalt flow depression pools in unplowed grasslands, but one population
occurs in sandstone rock outcrops and another population in alkaline
vernal pools. The vernal pool fairy shrimp has been collected from
early December to early May. The water in pools inhabited by this
species has low TDS, conductivity, alkalinity, and chloride (Collie and
Lathrop 1976). This species has a sporadic distribution within vernal
pool complexes (Jones and Stokes, 1992, 1993; County of Sacramento
1990; Patton 1984; Stromberg 1993; Sugnet and Associates 1993b) wherein
the majority of pools in a given complex typically are not inhabited by
the species. Simovich et al. (1992) reported that the vernal pool fairy
shrimp typically is found at low population densities. Only rarely does
the vernal pool fairy shrimp co-occur with other fairy shrimp species,
but where it does, the vernal pool fairy shrimp is never the
numerically dominant one (Eng et al. 1990). Although it can mature
quickly, allowing populations to persist in short-lived shallow pools,
it also persists later into the spring where pools are longer lasting
(Simovich et al. 1992). Sugnet and Associates (1993b) listed 178
records for the species out of 3092 ``discrete locations'' containing
potential habitat in their report. These 178 records represent the 32
known populations of the vernal pool fairy shrimp, which extend from
Stillwater Plain in Shasta County through most of the length of the
Central Valley to Pixley in Tulare County, and along the central coast
range from northern Solano County to Pinnacles in San Benito County
(Eng et al. 1990; M. Fugate, pers. comm., 1991; Sugnet & Associates
1993b). Five of these populations are believed to be comprised of a
single inhabited pool. Four additional, disjunct populations exist; one
near Soda Lake in San Luis Obispo County, one in the mountain
grasslands of northern Santa Barbara County, one near the Santa Rosa
Plateau in Riverside County, and one near Rancho California in
Riverside County. Three of these four isolated populations contain only
a single known pool occupied by the vernal pool fairy shrimp.
The vernal pool tadpole shrimp (Lepidurus packardi), a member of
the family Triopsidae, was described by Eugene Simon in 1866 (Longhurst
1955a). Longhurst (1955a) placed the name in synonymy with Lepidurus
apus. Subsequently, Lynch (1972) examined the taxa and determined that
Lepidurus packardi is a valid species. The Service accepts Lynch's
taxonomic treatment of the genus Lepidurus, which maintains L. packardi
as a species.
Vernal pool tadpole shrimp adults reach a length of 50 millimeters
(2 inches). They have about 35 pairs of legs and two long cercopods.
This species superficially resembles the ricefield tadpole shrimp
(Triops longicaudatus). However, Lepidurus possess a flat paddle-shaped
supra-anal plate that is entirely lacking in members of the genus
Triops (Pennak 1989; R. Brusca in litt., 1992; M. Simovich in litt.,
1992; J. King in litt., 1992). The vernal pool tadpole shrimp is known
from 18 populations in the Central Valley, ranging from east of Redding
in Shasta County south through the Central Valley to the San Luis
National Wildlife Refuge in Merced County, and from a single vernal
pool complex located on the San Francisco Bay National Wildlife Refuge
in the City of Fremont, Alameda County.
The vernal pool tadpole shrimp inhabits vernal pools containing
clear to highly turbid water, ranging in size from 5 square meters (54
square feet) in the Mather Air Force Base area of Sacramento County, to
the 36 hectare (89 acre) Olcott Lake at Jepson Prairie. The pools at
Jepson Prairie and Vina Plains have a very low conductivity, TDS, and
alkalinity (Barclay and Knight 1984; Eng et al. 1990). These pools are
located most commonly in grass bottomed swales of grasslands in old
alluvial soils underlain by hardpan or in mud-bottomed pools containing
highly turbid water.
The life history of the vernal pool tadpole shrimp is linked to the
phenology of the vernal pool habitat. After winter rainwater fills the
pools, the populations are reestablished from diapaused eggs that lie
dormant in the dry pool sediments (Ahl 1991; Lanway 1974). Ahl (1991)
found that eggs in one pool hatched within three weeks of inundation
and maturated to sexually reproductive adults in another three to four
weeks. Simovich et al. (1992) reported sexually mature adults occurred
in another pool three to four weeks after the pools had been filled. A
female surviving to large size may lay up to six clutches of eggs,
totaling about 861 eggs in her lifetime (Ahl 1991). The eggs are sticky
and readily adhere to plant matter and sediment particles (Simovich et
al. 1992). A portion of the eggs hatch immediately and the rest enter
diapause and remain in the soil to hatch during later rainy seasons
(Ahl 1991). The vernal pool tadpole shrimp matures slowly and is a
long-lived species (Ahl 1991; Alexander 1976). Adults are often present
and reproductive until the pools dry up in the spring (Ahl 1991;
Simovich et al. 1992).
Previous Federal Actions
Ms. Roxanne Bittman petitioned the Service to list the Conservancy
fairy shrimp, longhorn fairy shrimp, vernal pool fairy shrimp, and
California linderiella as endangered species in a letter dated November
19, 1990, which was received by the Service on November 20, 1990. Ms.
Bittman submitted additional information on these species in a letter
dated November 20, 1990, which was received on November 26, 1990. On
March 21, 1991, the Service made a 90-day finding that the petition
contained substantial information indicating that the action requested
may be warranted. A notice announcing this finding was published in the
Federal Register on August 30, 1991 (56 FR 426968).
Ms. Dee Warenycia petitioned the Service to list the vernal pool
tadpole shrimp as an endangered species in a letter dated April 28,
1991, which was received by the Service on April 30, 1991. On November
21, 1991, the Service determined in the administrative 90-day finding
that the petition contained substantial information that the action
requested may be warranted. On May 8, 1992, the Service published a
proposed rule in the Federal Register (57 FR 19856) to list the four
fairy shrimp and vernal pool tadpole shrimp as endangered.
Summary of Comments and Recommendations
In the May 8, 1992, proposed rule (57 FR 19856) and associated
notifications, all interested parties were requested to submit factual
reports or information that might assist the Service in determining
whether these taxa warrant listing. Appropriate State agencies, county
governments, including affected planning departments, Federal agencies,
scientific organizations, and other interested parties were contacted
and requested to comment. Notices of this proposal were published in
the Santa Rosa Press Democrat, San Francisco Chronicle, Monterey
Herald, Chico Enterprise Record, San Luis Obispo Telegram-Tribune,
Santa Barbara News-Press, Modesto Bee, Sacramento Bee, and the Fresno
Bee on June 5, 1992.
On June 4, 1992, the Service received a written request for a
public hearing from Mr. George Robson of the Tehama County Planning
Department. Several other requests for a public hearing also were
received. As a result, on August 13, 1992, the Service published a
notice in the Federal Register (57 FR 36380) announcing the public
hearing and reopening the comment period until September 18, 1992. The
Service conducted a public hearing on August 31, 1992, at the Radisson
Hotel in Sacramento, California. Testimony was taken from 6 p.m. to 8
p.m. Twenty-one persons presented testimony.
On September 18, 1992, the Service attended a public meeting held
at the Red Bluff Community Center in Red Bluff, Tehama County,
California. Six people presented oral and written comments to the
Service.
During the comment periods, the Service received 117 comments
(letters and oral testimony). Several people submitted more than one
comment to the Service. The Service received two petitions containing
63 signatures of people supporting the listing and one petition
containing 190 signatures of people opposed to the listing. The
California Department of Parks and Recreation supported a listing of
threatened for the four fairy shrimp but did not state a position on
the vernal pool tadpole shrimp. The California Department of Fish and
Game expressed concern for the fairy shrimp and also did not state a
position on the vernal pool tadpole shrimp. Comments supporting the
listing were received from 41 private parties, including the Riverside
County Planning Department, and nine professional biologists from
several institutions, including the Stanford University Center for
Conservation Biology, University of California, University of San
Diego, and San Diego Museum of Natural History. Comments opposing the
listing were received from 34 private parties, organizations, and
agencies including seven mosquito abatement districts. Opposition to
the listing also was expressed by Congressman Wally Herger and
Congressman Vic Fazio. Four commenters did not express an opinion.
In addition, after the comment period closed, six parties,
including the California Department of Fish and Game, requested that
the Service extend the date of the final determination for the five
species by six months pursuant to 16 U.S.C. 1533(b)(6). The Act
provides for a six-month extension if the Secretary finds that ``* * *
there is substantial disagreement regarding the sufficiency or accuracy
of the available data relevant to the determination * * * for the
purposes of soliciting additional data.'' One of these commenters
submitted a report that summarized collection records and field work
conducted in 1993 (Sugnet and Associates 1993b). The California
Department of Fish and Game supported the extension but stated that
they had no additional information. The California Native Plant Society
opposed the six-month extension and urged the Service to immediately
list the five species under the Act.
The Service has reviewed all of the written and oral comments
described above. Comments updating the data presented in the
``Background'' or ``Summary of Factors Affecting the Species'' are
incorporated in those sections of this final rule. Opposing comments
and other comments concerning the rule have been organized into
specific issues. These issues and the Service's response to each are
summarized as follows:
Issue 1: A number of commenters stated that a single public hearing
was inadequate to obtain full public input on the proposal. They
requested that public hearings be held in all of the towns and counties
that contain vernal pools and swales inhabited by the five species.
Service Response: The Service is obligated to hold one public
hearing on a listing proposal if requested to do so within 45 days of
publication of the proposal (16 U.S.C. 1533(b)(5)(E)). In addition to
the public hearing held on August 31, 1992, the Service attended a
public meeting organized by Congressman Vic Fazio in Red Bluff, on
September 18, 1992. The public comment period was extended to September
8, 1992, to allow all interested parties to provide written comments.
In making a decision on a listing proposal, written comments are given
the same weight as oral comments presented at hearings.
Issue 2: Several respondents stated that the Service's notification
of the public on this proposal was inadequate.
Service Response: The Service went through an extensive
notification process to make the public aware of this proposal; this
process satisfied the requirements of the Act and is described at the
beginning of this section.
Issue 3: Many respondents concluded that listing the fairy shrimp
and the vernal pool tadpole shrimp would result in adverse economic
impacts to thousands of hectares of land and questioned the value of
these animals to society. Two commenters requested that an analysis of
the economic impact of listing these species be completed. Two
commenters noted that these species are restricted to vernal pools but
stated that listing would result in adverse economic impacts by
eliminating future residential or commercial development in areas
containing this habitat. Five commenters claimed the fairy shrimp and
the vernal pool tadpole shrimp are ``insignificant'' species and that
listing would interfere with the natural evolutionary process of
extinction. On the other hand, a number of respondents asserted that
opposition to the listing of the species was based solely on economic
interests. They cited the ecological and educational value of vernal
pool plants and animals. Four crustacean biologists noted the species
can be considered ``living fossils'' and are of great scientific value
to the study of biological evolution, systematics, and ecology.
Service Response: Under section 4(b)(1)(A) of the Act, a listing
determination must be based solely on the best scientific and
commercial data available. The legislative history of this provision
clearly states the intent of Congress to ``ensure'' that listing
decisions are ``based solely on biological criteria and to prevent non-
biological criteria from effecting such decisions'' H.R. Rep. No. 97-
835, 97th Cong. 2d Sess. 19 (1982). As further stated in the
legislative history, ``economic considerations have no relevance to
determinations regarding the status of species.'' Because the Service
is specifically precluded from considering economic impacts in a final
decision on a proposed listing, the Service has not considered possible
economic consequences of listing the three fairy shrimp and the vernal
pool tadpole shrimp. There may be many opinions as to a particular
species' contribution to society, including their aesthetic,
scientific, or other significance, however, this contribution is not
among the five factors upon which a listing determination is based.
Issue 4: One commenter recommended that the Service prepare an
Environmental Impact Statement (EIS), pursuant to the National
Environmental Policy Act (NEPA), on this rule. He stated that a
decision to list these five crustaceans is a major Federal action that
significantly affects the quality of the human environment.
Service Response: For the reasons set out in the NEPA section of
this document, the Service takes the position that rules issued
pursuant to section 4(a) of the Act do not require the preparation of
an EIS. The courts held in Pacific Legal Foundation v. Andrus, 657 F2d.
829 (6th Circuit 1981) that an EIS is not required for listing under
the Act. The decision noted that preparing EIS's on listing actions
does not further the goals of NEPA or the Act.
Issue 5: One commenter requested that the Service conduct a Takings
Implications Assessment under Executive Order 12630 for this listing
action.
Service Response: The Attorney General has issued guidelines to the
Department of the Interior (Department) regarding implementation of
Executive Order 12630.
The Attorney General's guidelines state that Taking Implications
Assessments (TIAs), which are used to analyze the potential for Fifth
Amendment taking claims are to be prepared after, rather than before,
an agency makes a decision upon which its discretion is restricted. In
enacting the Endangered Species Act, Congress required the Department
to list a species based solely upon scientific and commercial data
indicating whether or not the species is in danger of extinction. No
discretion is afforded and the Service may not withhold a listing based
upon economic concerns. Therefore, even though a TIA is required, a TIA
for a listing action is to be finalized only after the final decision
whether to list a species is made.
Issue 6: The California Department of parks and Recreation
recommended that the four fairy shrimp should be listed as threatened
species rather than endangered species.
Service Response: The Service has determined that threatened status
is appropriate for the vernal pool fairy shrimp. The proposal to list
the California linderiella as an endangered species has been withdrawn.
The rationale for these actions and endangered status for the two other
fairy shrimp species and the vernal pool tadpole shrimp is described at
the conclusion of the ``Summary of Factors Affecting the Species''
section.
Issue 7: Several commenters expressed concern that it will be
difficult or impossible to delist any or all of the crustaceans listed
herein.
Service Response: When the recovery goals for a species have been
met, the Service may prepare a proposal to delist or reclassify it. The
process for delisting or reclassifying a species, allowed for at
section 4(b)(3)(A) of the Act, is the same process used for listing the
species.
Issue 8: Three respondents stated that compared to other federally
listed crustaceans, the fairy shrimp and the vernal pool tadpole shrimp
do not warrant listing under the Act.
Service Response: The claim that the status of the fairy shrimp and
the vernal pool tadpole shrimp do not warrant listing under the Act
when compared with other listed crustaceans does not address the full
range of issues and complexities bearing on listing decisions. The
multiplicity of factors and relationships that must be considered and
interpreted in assigning the appropriate status to listed taxa is
sufficiently complex that patterns of consistency may not be
necessarily agreed upon by all parties.
Issue 9: Several respondents stated that critical habitat should be
designated for the fairy shrimp and the vernal pool tadpole shrimp.
Service Response: The Service believes that the danger posed by
designating critical habitat at this time outweighs the potential
benefits. As discussed in Factors ``A'' and ``E'' under the ``Summary
of Factors Affecting the Species'' section below, all of the species
included in this final rule could be adversely affected by acts of
vandalism. The Service is aware of vernal pools that contained suitable
habitat for these animals that apparently were destroyed to escape
regulatory requirements. Designation of critical habitat at this time
would increase the degree of threat facing these species.
Issue 10: One commenter stated that there is not enough data on the
species listed herein upon which to develop a recovery plan.
Service Response: Section 4(f) of the Act directs the Secretary to
develop and implement recovery plans for conservation and survival of
listed endangered and threatened species. The Service intends to pursue
the development of a recovery plan for the four species as soon as
possible. Identification of needed research and acquisition of
additional data are key components of most recovery plans.
Issue 11: Several commenters stated that the California linderiella
and the vernal pool fairy shrimp do not warrant listing because of
their widespread distribution.
Service Response: Species may be listed under the Act if one or
more of the five listing criteria imperils the species with extinction
or if the species is likely to become endangered in the foreseeable
future, throughout all or a significant portion of its range. These
criteria apply for narrowly, as well as widely distributed species. As
described elsewhere in this final rule, the vernal pool fairy shrimp is
imperiled by habitat loss from construction activities and degradation
to the extent that 28 of the 32 known populations face one or more of
the various threats described elsewhere in this rule. Thus, even though
this species has a relatively wide range in California, it is imperiled
by one or more of five factors throughout a significant portion of its
range.
At the time the proposed rule was published, the California
linderiella was known from vernal pools in the Central Valley from
central Tehama County to central Madera County and across the valley in
the Sacramento area to the central and south coast mountains from Lake
County south to Riverside County. Surveys conducted in 1993 and other
information that has become available to the Service indicate that the
range extends from Shasta County south to Fresno County and across the
valley to the Coast and Transverse Ranges from Willits in Mendocino
County south to near Sulfur Mountain in Ventura County. Within this
area more vernal pools have been found to contain subpopulations of the
California linderiella than was known at the time of the proposed rule.
The populations in Riverside County have been determined to represent
an undescribed species of Linderiella. The Service has carefully
considered the additional information and has determined that the
California linderiella fails to meet the definition of either an
endangered or threatened species and has withdrawn it from
consideration for endangered or threatened status.
Issue 12: After the comment period closed, six parties requested
that the Service extend the date of the final determination for these
species pursuant to 16 U.S.C. 1533(b)(6). That section of the Act
provides for a six-month extension to solicit additional data if the
Secretary finds that ``there is substantial disagreement regarding the
sufficiency or accuracy of the available data relevant to the
determination.'' The parties asserted that additional information on
the range and status of these animals could become available during
this time period. One of these commenters submitted a report as the
basis for their request that summarized museum, literature, and field
records, the majority of which were collected in 1993, for the five
species (Sugnet and Associates 1993b). A seventh party, the California
Native Plant Society, stated that they were opposed to the six month
extension and they urged the Service to immediately list the five
species.
Service Response: The report by Sugnet and Associates (1993b)
provided a number of records for the California linderiella, vernal
pool fairy shrimp, and the vernal pool tadpole shrimp that have been
incorporated into this final rule. The report listed 3092 ``discrete
locations'' that contained 703 records of the California linderiella,
178 records of the vernal pool fairy shrimp, and 345 records of the
vernal pool tadpole shrimp.
The report by Sugnet and Associates (1993b) presented only township
and range information on the locations of the California linderiella,
vernal pool fairy shrimp, longhorn fairy shrimp, Conservancy fairy
shrimp, and the vernal pool tadpole shrimp. A request by the California
Department of Fish and Game to obtain the precise locations that served
as the basis for the report was unsuccessful (letter from California
Department of Fish and Game to Sugnet and Associates, dated December
29, 1993; letter from Sugnet and Associates to California Department of
Fish and Game, dated January 29, 1994). The report also treated the
records of the individual vernal pools inhabited by the California
linderiella, vernal pool fairy shrimp, and the vernal pool tadpole
shrimp as ``discrete locations.'' However, as described in greater
detail in the Background section, abundance of inhabited vernal pool
complexes most appropriately describes the population status of the
five vernal pool crustaceans; animals in individual pools most
appropriately are referred to as subpopulations. Accordingly, the study
by Sugnet and Associates (1993b) overestimated the number of
populations of the California linderiella, vernal pool fairy shrimp,
and the vernal pool tadpole shrimp. Statements in Sugnet and Associates
(1993b), such as ``Results of this effort indicate that B. lynchi
occurs at a total of 178 discrete locations * * *'', should be
interpreted in light of the fact that a number of inhabited pools can
occur within a single vernal pool complex, and that all of these could
be threatened by a single project proposal. For example, the proposed
Sunrise-Douglas development in Sacramento County contains over 500
vernal pools (Sugnet and Associates 1993a). An unknown number of these
pools contain the vernal pool fairy shrimp, and/or vernal pool tadpole
shrimp.
The data in Sugnet and Associates (1993b) and other information
available to the Service increased the known ranges and number of
populations from that described in the proposed rule for three of the
five species and located additional populations for one species. The
report identified a geographic range extension for the vernal pool
tadpole shrimp and increased the number of populations from fourteen to
seventeen; none were from unexpected areas or non-vernal pool habitat.
Two additional populations of the Conservancy fairy shrimp were
located, one at the Sacramento National Wildlife Refuge and one in
northern Ventura County. The geographic distribution of the vernal pool
fairy shrimp was not increased but additional pools containing this
species were located within the known range and known populations of
this animal.
With the exception of the California linderiella, the Service
concludes that the report by Sugnet and Associates (1993b) does not
provide a basis for significant disagreement regarding the sufficiency
or accuracy of the available data relevant to this listing action.
Rather, the data presented in the report substantiates the rarity and
fragmented distributions of the four species listed herein. Therefore,
the Service has determined to issue a final regulation pursuant to 16
U.S.C. 1533(b)(6)(i)(I).
Issue 13: Many commenters, including the California Department of
Transportation and Congressman Wally Herger, requested the Service
delay or not list the five species because they believed additional
distributional and ecological data are needed to determine the ``true''
status of these animals. Several people contended that the survey work
and collection data upon which the proposed rule was based are
inadequate. One commenter contended that this perceived lack of
information would result in a procedurally inadequate listing. Eight
commenters stated that the data utilized by the Service presents only
collection places inhabited by the species. They asserted that the
Service did not conduct a random field survey and failed to accurately
delineate the distributions of the species. These parties contended
that the absence of information on locations that are not inhabited by
the animals suggests a general lack of extensive collection efforts or
knowledge of them. To support the need for further field work, one
commenter cited 18 records of the vernal pool fairy shrimp and 30
records of the California linderiella that were not included in this
proposed rule. This commenter did not provide any additional records of
the Conservancy fairy shrimp, the longhorn fairy shrimp, or the vernal
pool tadpole shrimp.
Service Response: Scientifically credible data on the status of the
five crustaceans was collected in a random 322 kilometer (200 mile)
north-south transect in the Sacramento Valley from Fall River in Shasta
County to Jepson Prairie in Solano County (Simovich et al. 1992). This
study found that distinct segments totaling 35 kilometers (22 miles),
or 11 percent of the transect, contain vernal pools and swales. Within
the portions of the transect, the vernal pool tadpole shrimp and the
vernal pool fairy shrimp were found on 16 kilometers (10 miles), the
Conservancy fairy shrimp on 6 kilometers (4 miles), and the California
linderiella on 10 kilometers (6 miles). The animals were not found in
all pools and swales in suitable habitat areas in this study (J. King,
in litt., 1992). King (in litt., 1992) reported that the vernal pool
tadpole shrimp was found in only five pools on 8 kilometers (5 miles)
of the 16 kilometers (10 miles) of vernal pools where the animal
occurred, indicating a sparse distribution within much of the area
where it occurs. The fairy shrimp species and the vernal pool tadpole
shrimp largely were absent from extensive regions in the Sacramento
Valley where degraded vernal pools still remain, such as the Red Bluff
and Coyote Creek areas of Tehama County, and the Allendale area of
Solano County (R. Brusca, in litt., 1992). The three crustacean
biologists who conducted this research concluded that based on this
random field survey, these fairy shrimp species and the vernal pool
tadpole shrimp are rare throughout their ranges.
A comparison of the maps in Sugnet and Associates (1993b) indicates
that the number of occupied pools, and amount of suitable habitat for
the 30 populations of the California linderiella are larger than for
the 32 populations of the vernal pool fairy shrimp. In addition, the
California linderiella is known from the north coast, San Francisco Bay
area, western areas in the San Joaquin Valley, and the western
foothills of the Sierra Nevada in San Joaquin and Stanislaus Counties
where the vernal pool fairy shrimp is not known to be present (Sugnet
and Associates 1993b).
The Service concludes, as detailed in the ``Summary of Factors''
section, that there is sufficient biological evidence that the vernal
pool fairy shrimp, Conservancy fairy shrimp, longhorn fairy shrimp, and
the vernal pool tadpole shrimp warrant listing. Sampling conducted at
various locations and intensities between 1981 and 1993 by biologists
familiar with the four fairy shrimp and the vernal pool tadpole shrimp
and their habitat provided adequate information on the distribution,
habitat requirements, and most importantly, threats to the four species
to warrant the present action. All additional data provided by
respondents during the comment period, including the report by Sugnet &
Associates (1993b) have been incorporated into this final rule; none of
this data indicated that these taxa were not threatened or endangered.
The Service's decision to propose the four fairy shrimp and the vernal
pool tadpole shrimp was based on significant threats associated with
habitat loss and fragmentation, rather than solely on the basis of
population numbers.
Issue 14: Several commenters, including Congressman Wally Herger,
requested the precise locations of the populations of the species be
widely disseminated or included in the final rule. One respondent
requested that the Service notify all landowners whose property has
been found to contain one or more of the species.
Service Response: For the reasons discussed in the response dealing
with critical habitat below, the Service concludes that providing the
exact locations would increase the degree of threat facing these
species.
Issue 15: Some commenters were concerned that the Service did not
give due consideration to the impacts of the six year drought in
California. They contended that increased amounts of rainfall would
result in greater numbers of the fairy shrimp and the vernal pool
tadpole shrimp.
Service Response: The average and above average rainfall levels
that occurred in 1992/1993 did not reveal significant new populations
of the five species in unexpected areas because most vernal pools held
water, at least to some extent, during the drought that extended from
1987 to 1992. Even very small, shallow vernal pools were observed to
hold water, allowing reproduction of the four fairy shrimp and vernal
pool tadpole shrimp during these drought years (J. King pers. comm.
1992; M. Simovich pers. comm. 1992; Simovich et al. 1993). Also,
natural vernal pool complexes are expected to have some pools that at
least partially pond in drought years even though other pools may fill
only during years of average or above average precipitation.
Issue 16: Several commenters concluded that the data on the
crustaceans does not demonstrate a historic and consistent decline in
populations levels. One commenter stated that the data on the
Conservancy fairy shrimp, longhorn fairy shrimp, and the vernal pool
fairy shrimp is very limited because they were only recently described.
Service Response: Relatively little information is available to
reconstruct the distribution of the four species listed herein prior to
the loss of vernal pool habitat that began in the late 1800's. However,
the Service is required to evaluate species based on current and likely
future threats to their status. As discussed in this final rule,
numerous populations of the four species face severe, imminent threats
that could result in substantial habitat losses and extirpations in the
future. Since at least the mid-1980's, the human population has been
growing rapidly throughout the Central Valley and other regions of
California. Although three of the five crustaceans were described
scientifically in 1990, their distribution and abundance are
sufficiently documented relative to current and future threats to their
continued existence. Field samples made from vernal pools have
contained these three fairy shrimp prior to 1990. The earliest known
collections of the Conservancy fairy shrimp were made in 1979, the
vernal pool fairy shrimp in 1965, and the longhorn fairy shrimp in
1937.
Issue 17: The Contra Costa Water District reported that neither the
Los Vaqueros Reservoir alternative nor the Kellogg Reservoir
alternative would impact the single vernal pool complex inhabited by
the vernal pool fairy shrimp within the watershed (John Gregg, Los
Vaqueros Project, in litt., 1992).
Service Response: The Los Vaqueros Reservoir project likely would
result in adverse impacts to the California linderiella, vernal pool
fairy shrimp, and the longhorn fairy shrimp based on an analysis of the
environmental documents for this project (California Department of Fish
and Game 1983; John Gregg, Los Vaqueros Project, in litt., 1992; Jones
and Stokes 1986, 1989, 1990, 1991). On September 2, 1993, the Service
issued a conference opinion to the Bureau of Reclamation for the
effects of the Los Vaqueros Reservoir project on the three fairy shrimp
species.
Issue 18: One commenter stated that there are populations of the
crustacean species located on nature preserves and for this reason the
Service was urged to ``slow'' the listing process for these animals.
Four people noted that portions of three preserves owned by the Nature
Conservancy are inhabited by three of the fairy shrimp species and the
vernal pool tadpole shrimp. One commenter concluded that this assured
the long-term protection of these species. However, the other three
commenters stated that the preserves were either not specifically
managed for these animals or the sites are imperiled by activities on
adjacent properties.
Service Response: The Service recognizes that while some
populations of the fairy shrimp and vernal pool tadpole shrimp are
found on protected public and private lands, almost all are located in
areas that are not secure against adverse impacts to these animals.
Please refer to Factor D below, for an expanded discussion on
landownership patterns and protection for these species.
Issue 19: One commenter said the scientific articles containing
data on the fairy shrimp that were used by the Service are ``primitive
and unreliable'' and the taxonomy of these crustaceans is ``confused''.
However, four recognized crustacean biologists noted that the taxonomy
of fairy shrimp found in California had been reviewed recently in a
peer-reviewed scientific journal and the taxonomic status of these
species is widely accepted by current authorities.
Service Response: Using the best and most recent systematic
information from a number of reliable sources, including Eng et al.
(1990), D. Belk (pers. comm., 192), and M. Fugate (pers. comm., 1992),
the Service maintains that the Conservancy fairy shrimp, vernal pool
fairy shrimp, and the longhorn fairy shrimp are valid species and no
further taxonomic studies are needed.
Issue 20: Several respondents, including Congressman Wally Herger
contended that the vernal pool tadpole shrimp is a ``taxonomically
unstable species''. One commenter stated that taxonomic confusion
between Lemmon's tadpole shrimp (Lepidurus lemmoni) and the vernal pool
tadpole shrimp should be resolved prior to any listing decision.
Several commenters stated that the taxonomy of tadpole shrimps is
unresolved and recommended that the Service not list the animal.
Expressing a contrary position, three recognized authorities on
crustaceans provided information showing the vernal pool tadpole shrimp
is a biologically and taxonomically valid species. They reported that
the vernal pool tadpole shrimp is distinct in both morphology and
ecology from Lemmon's tadpole shrimp, which is restricted to alkaline
lakes is western North America.
Service Response: Using the best and most recent systematic
information from a number of reliable sources, including Lynch (1972)
and various crustacean biologists) (R. Brusca, in litt., 1992; M.
Simovich, in litt., 1992; J. King, in litt,. 1992), the Service
maintains that the vernal pool tadpole shrimp is a valid species and no
further taxonomic studies are needed.
Issue 21: Four respondents expressed concern that the Service was
going to list the ricefield tadpole shrimp (Triops longicaudatus) a
pest in rice fields in the Central Valley. They further stated that
protection of this animal would be an ``economic disaster'' for rice
growers of California. Alternatively, three recognized crustacean
authorities provided information showing that the rice field tadpole
shrimp is only distantly related to the vernal pool tadpool shrimp.
They stated that T. longicaudatus is known to occur in the Central
Valley only in rice fields while L. packardi is found only in vernal
pools. One of the crustacean biologists stated that based on genetic
studies, the two species are separated by genetic distances on the
order of those normally found between crustacean orders (J. King, in
litt., 1992). In addition, the four crustacean biologists noted that
the two species are morphologically distinct and are easily
distinguishable from each other.
Service Response: The findings in this final rule reflect the
published taxonomic literature and the expert opinion of recognized
crustacean biologists.
Issue 22: A number of commenters stated that Federal, State, and
local regulatory processes provide adequate protection for the
crustaceans. Two respondents said that listing would directly affect
agriculture, industrial, and commercial development in areas that have
been meticulously planned and subject to State laws such as the
California Environmental Quality Act (CEQA) and California Subdivision
Map Act. Some commenters noted the wetlands ``no-net-loss'' policies of
several State and county agencies, while other cited section 404 of the
Clean Water Act. On commenter analyzed data for a group of 29
development projects in the Sacramento area and found that 56 percent
of the vernal pools at these project sites had been preserved and 0.9
hectare (2.2 acres) of vernal pools provided as mitigation for each
acre impacted under Corps permit conditions pursuant to section 404
requirements. The commenter stated that this group of projects is
representative of the level of preservation afforded vernal pool
habitat in the Sacramento area and further concluded that this level of
protection may be equaled or exceeded for projects requiring section
404 permits throughout the range of the five species. Another commenter
noted that the Corps recently classified vernal pools at a proposed
project site in Sacramento County as ``aquatic resources of national
importance''. According to the commenter, this designation will cause
the Corps to more closely evaluate impacts to vernal pools from
proposed projects and thus provide significant protection to vernal
pool habitat for the five crustacean species during a six-month time
extension.
Expressing a contrary position, several other commenters noted that
Federal, State, and local laws have been ineffective in providing
protection for these species. The Mount Lassen Chapter of the
California Native Plant Society provided data on the destruction of two
vernal pool complexes known to have been inhabited by the vernal pool
tadpole shrimp in the City of Chico. They provided information on two
other vernal pool complexes in Chico that are located on properties
proposed for residential development. Another commenter stated that
vernal pools in Santa Rosa have been eliminated despite the protective
provisions of State law (CEQA). A number of respondents noted that
destruction of vernal pools commonly is allowed if an attempt is made
to create artificial habitat as compensation.
Service Response: While vernal pool habitat has been preserved
permanently under special conditions of section 404 permits for a
number of projects, significant areas of vernal pool habitat continue
to be lost in spite of the Corps jurisdictional authority to regulate
these wetlands under the Clean Water Act. Since 1987, the Service has
been tracking the Corps' implementation of Nationwide Permit 26 within
the area of responsibility of the Service's Sacramento Field Office. A
Service report produced in October 1992 showed that the Corps'
Sacramento District authorized filling of 189 hectares (467 acres) of
wetlands between 1987 and 1992 pursuant to Nationwide Permit 26 (U.S.
Fish and Wildlife Service 1992). During this same time period, the
Corps' San Francisco District authorized projects under Nationwide
Permit 26 that filled a total of 104 hectares (257 acres) of wetlands
of which 15.6 hectares (38.6 acres) were in the Santa Rosa Plain. The
report notes that these figures are conservative estimates because
notification of agencies for projects affecting less than 0.405
hectares (1.0 acre) are not mandatory. The Service estimates that a
majority of the wetland losses permitted in the Sacramento District
constitute vernal pools. In addition, between December 1, 1992, and
June 15, 1993, the Service identified 10 unauthorized projects in
Sacramento and Butte Counties that destroyed or damaged between 8.5 and
15 hectares (21 and 37 acres) of vernal pool habitat (D. Strait, pers.
comm., 1993). The projects were not authorized because landowners
either were not required or failed to comply with the regulatory
requirements of the section 404 permitting process. In addition, gravel
mines are proposed for significant areas in the Sacramento Valley,
including an approximately 404 hectare (1,000 acres) site south of
Mather Air Force Base that contains the California linderiella, vernal
pool fairy shrimp, and the vernal pool tadpole shrimp. Under recent
changes in the Corps of Engineers regulations, some gravel mining
activities will be regulated. However, in the past, most of these
activities were not subject to the provisions of the Clean Water Act.
In December 1992, the Department of the Interior signed a revised
Memorandum of Agreement with the Department of the Army that provides
an administrative process for requesting higher level review of
District Engineers' decisions on section 404 individual permit
applications. One criterion necessary for higher level review under the
Memorandum of Agreement is that the wetlands in question must
constitute ``aquatic resources of national importance.'' The ultimate
determination on whether the criterion is met will be made on a case-
by-case basis by the Assistant Secretary of the Army (Civil Works).
Requests for higher level review only apply to projects subject to
individual permits, not Nationwide permits. Projects determined by the
Corp's Sacramento District to quality for authorization under
Nationwide Permit 26 are not eligible for higher level review.
Department of the Army concurrence with the designation of vernal pools
at the project site at issue ``as aquatic resources of national
importance'' does not ensure application of additional protection to
vernal pools beyond that site (see discussion under Issue 29 and Factor
D, ``Summary of Factors Affecting the Species'', for a complete
discussion on the adequacy of existing regulatory mechanisms for the
four species listed herein). Such a designation must be made on a site-
specific basis and, by itself, does not necessarily effect any
protection of these resources. San Francisco District of the Corps
considered possible revocation of Nationwide Permit 26 in the Santa
Rosa Plain that would have ensured that all projects affecting wetlands
in this area would require authorization on an individual permit basis
and potential higher level review. However, the Corps decided instead
to impose stricter conditions on the use of Nationwide Permit 26 in
this area, including demonstration that no rare or endangered plant or
animal species are supported on the wetlands within any proposed
project site. The Corps also determined that individual permits would
be required on wetlands that support federally proposed or listed
threatened or endangered species. Regardless, of the four species
listed herein, only the California linderiella is found at the Santa
Rosa Plain and this area constitutes a small percentage of the overall
geographical range of the species. Therefore, any additional protection
afforded vernal pools in this area would not provide rangewide
protection of these animals.
Based on this and other information discussed under Factor D below,
the Service concludes that proposed and on-going damage or destruction
of vernal pools in California caused by urban and agricultural
development is prevalent despite existing Federal, State, and local
regulations and that existing levels of protection are not adequate to
assure the survival of these species.
Issue 23: One commenter completed a literature survey of three
reports that addressed trends in overall wetland losses throughout
California and the Central Valley, in particular. Essentially, this
commenter concluded that the historic trend of wetland losses
throughout California subsided in the mid-1980's and that current
wetland acreages actually are increasing in the State, apparently as a
result of the implementation of Federal wetland regulatory mechanisms.
Service Response: Methodological flaws and ambiguities in the
analysis conducted by this commenter invalidate the report's findings.
The most serious flaw is the comparison of wetland acreages in various
studies that focused on different geographic study areas. For example,
the two Service reports reviewed by the commenter cannot be used
together to draw conclusions on changes in wetland acreages because
data from the Central Valley and the entire State are not comparable.
Issue 24: Several commenters disputed the Service's statement in
the proposed rule that 90 percent of the original vernal pool habitat
throughout the Central Valley has been lost and that an estimated 2 to
3 percent of vernal pool habitat continues to be lost annually. Several
commenters contended that the study referenced by the Service actually
showed a 67 to 88 percent historic loss of vernal pool acreage. One
commenter further stated that additional interpretation and analysis of
the data used in the study revealed that historic losses were 63
percent. Based upon information contained in a separate document
prepared by the Service, other commenters asserted that the actual loss
more closely approximated 50 percent. After the comment period closed,
one respondent commented that preliminary results from a newly-
initiated soils data analysis indicate that the original estimates of
historic vernal pool losses in the Central Valley may be substantially
less than was identified in the proposed rule. Another late commenter
noted that U.S. Soil Conservation Service information supported recent
conclusions drawn by other soil scientists that 404,700 hectares (1
million acres) of soils suitable for vernal pool habitat remain from
809,400 hectares (2 million acres) determined to have historically
existed in the Central Valley, thus implying that historic losses were
close to 50 percent.
Service Response: After closer review of the referenced study
(Holland 1978), the Service discovered apparent arithmetic errors in
the estimates of historic vernal pool habitat (i.e., areas that could
have supported pools) losses. Correction of these errors yields
estimates of vernal pool habitat losses between 60 and 85 percent.
Accordingly, the Service finds that the study's corrected estimates of
historic vernal pool habitat loss in the Central Valley are reasonably
close to the range of estimates determined by those commenters who
criticized the study. Comments concerning a 50 percent habitat
reduction based upon a Service publication appear to be derived from
the Wetlands of the California Central Valley; Status and Trends 1939
to mid-1980's (Frayer et al. 1989), which estimated losses of
palustrine emergent wetlands. However, calculation of vernal pool
losses cannot be deduced from the numerous wetland types categorized as
``palustrine emergent wetlands.'' The results of the soils data
analysis under preparation by the commenter were not available for
review at the time of publication of this final rule.
The purpose of addressing historic vernal pool losses in the
proposed rule was to provide a historical context to the Central Valley
ecosystem inhabited by the four crustacean species. It was not the
intention, nor is it appropriate, to conduct an exhaustive analysis of
information pertaining to the history of vernal pool habitat losses
affecting the five crustacean species. Unverifiable and/or
contradictory information on the extent of former and current vernal
pool habitat will generate continued debate on this issue throughout
the foreseeable future. In a legal context, the extent of historic
habitat loss is of academic interest only, since the five factors at 50
CFR 424.11(c) under which species may qualify for listing look
prospectively to the future rather than retrospectively on the past.
The relevant issues are whether the current extent of fairy and tadpole
shrimp habitat is depleted and/or fragmented enough to render the
species vulnerable to extinction, or whether foreseeable threats
similarly threaten the species.
Issue 25: Eight commenters, including four mosquito abatement
districts, reported that vernal pools provided an important breeding
source for mosquitoes. They stated that the listing of the fairy shrimp
and the vernal pool tadpole shrimp, when coupled with the preservation
and creation of vernal pools next to residential areas, will create a
serious health risk to people. They were especially concerned about the
western encephalitis mosquito (Culex tarsalis), a vector of western
equine encephalitis and Saint Louis encephalitis. Some of the
respondents also expressed concern about mosquito-borne malaria and
yellow fever. A number of commenters stated that continued urban
development would result in greater numbers of people being affected by
mosquitoes and increase the need to control mosquitoes in vernal pools.
The four mosquito abatement districts were concerned that listing of
the crustaceans would increase the costs and restrictions on their
control activities.
Expressing a contrary position, four biologists stated that
mosquitoes rarely are found in vernal pools and swales that have not
been impacted by humans. They reported this is likely due to the
presence of the high abundance of predatory crustaceans and aquatic
insects that inhabit this ecosystem. A crustacean specialist noted that
mosquitoes were absent or not present in significant numbers in pools
inhabited by the fairy shrimp and the tadpole shrimp. Significant
numbers of mosquito larvae were found in areas that contain created
vernal pools or artificial bodies of water e.g., ditches and stock
ponds where the crustaceans are sparse or absent. One biologist
reported that no mosquito larvae were found in any of the 27 randomly
sampled vernal pools at Beale Air Force Base (Mary Ann Griggs, private
biologist, Colusa, California, in litt., 1992). However, mosquitos were
found in areas that had augmented water supply from a pressure release
valve on a well. The water supply produced a distinctively different
flora and fauna than nearby vernal pools. Commenting biologists stated
that the use of oil and mosquito fish (Gambusia affinis) will adversely
affect vernal pool fauna, including the three fairy shrimp and the
vernal pool tadpole shrimp, consequently allowing mosquitoes
populations to sue vernal pools where they otherwise are controlled or
eradicated by the nature pool fauna.
Service Response: The best information available to the Service
indicates that non-degraded vernal pools and swales do not provide a
significant breeding source for mosquitoes. Mosquitoes do not appear in
vernal pools until very late in the season, when they are unlikely to
complete their development before the pools dry (Wright 1991; Stan
Wright and Dave Brown, Sacramento-Yolo Mosquito Abatement District,
pers. comm., 1993). This pattern likely is due to the ecology of vernal
pool invertebrate communities rather than to oviposition timing of
female mosquitoes or to water chemistry, since (1) duck ponds in the
same area that fill at the same time as many vernal pools produce
mosquitoes throughout the wet season while vernal pools do not, and (2)
degraded pools and ruts without healthy vernal pool invertebrate
communities support mosquito populations while undisturbed vernal pools
in close proximity do not (S. Wright, pers. comm., 1993; J. King, pers.
comm., 1993; Christopher Rogers, Redding Mosquito Abatement District,
pers. comm., 1993).
Female mosquitoes are attracted to gases produced by fermentation
that indicate an abundance of decaying organic matter suitable for food
for mosquito larvae (S. Wright, pers. comm., 1993). This likely is the
cue used by females to select oviposition sites. Healthy vernal pools
appear to have tight nutrient cycling and relatively low levels of
decaying organic material, which makes them undesirable as oviposition
sites for gravid mosquitoes. Only late in the season when the abundance
of the invertebrates in vernal pools begins to decline are enough
nutrients and organic material available to make the vernal pools
attractive oviposition sites. By this time, however, it is often too
late for the mosquito larvae to develop before the pools dry.
Therefore, protecting vernal pools from disturbance and degradation can
prevent vernal pools from becoming mosquito breeding grounds, thereby
naturally preempting the need for artificial mosquito control in this
habitat.
Quantitative data collected from 64 vernal pools of widely varying
types, depths, and locations on a random 322 kilometer (200 mile)
north-south transect in the Central Valley from Fall River in Shasta
County to Jepson Prairie in Solano County over an entire season
indicate that mosquitoes are successful in breeding and developing only
in pools that have been disturbed or degraded, or late in the season
(J. King, pers. comm., 1993). Only about one third (34 percent) of the
64 pools studied were occupied by mosquito larvae or pupae. Most of
these pools had relatively low population densities of mosquitoes, and
in all of these pools mosquitoes were only present later in the season.
Of the 5 pools (8 percent) that did contain abundant mosquitoes, one
was an artificially created pool and another appeared to be degraded by
vehicular use and possibly discing.
The Service recognizes that there could be potential conflicts with
protection of the three fairy shrimp and the vernal pool tadpole shrimp
in implementing mosquito control programs. The Service will be working
with Federal, State, and local agencies, and examining additional
alternatives, such as the use of Bacillus thuringiensis var.
israelensis (Bti) and methoprene, to allow suppression programs to
continue. In this way, the Service is confident that Federal listing
will contribute to the survival of the four species and promote the
understanding of their vernal pool environment without jeopardizing
public health and safety.
Issue 26: Several commenters expressed concern that listing of the
crustaceans would curtail or eliminate cattle and livestock grazing in
areas containing vernal pools. Two crustacean biologists reported that
grazing by cattle and the crustacean species are compatible with each
other. They stated that moderate to low levels of grazing likely have
no adverse impacts on the fairy shrimp and the vernal pool tadpole
shrimp.
Service Response: The Service recognizes and acknowledges that low
to moderate levels of livestock grazing likely have no impact or may be
beneficial for these crustaceans. However, overgrazing in areas
containing the shrimp and their habitat likely is detrimental to these
species. High levels of pasture runoff may lead to increased siltation
of vernal pool habitat, and high livestock densities may cause changes
in pool water chemistry, water quality, and excessive physical
disturbances, such as trampling.
Issue 27: Several commenters reported the presence of the fairy
shrimp in non-vernal pool habitats, such as irrigation return ditches,
stock ponds, a backhoe pit, a gravel pit, and a depression left from
scraping. One commenter stated that a historic vernal pool habitat site
in southern Sacramento County that was disced, plowed, and farmed with
winter wheat still contained inundated depressions inhabited by the
vernal pool fairy shrimp and vernal pool tadpole shrimp. This example
was used to support the contention that these species can survive and
reproduce in degraded habitat. The commenter also noted that ``the site
was not leveled unlike other properties in the area, and still retained
some swale and hillock topography.'' (Bill Sugnet, Sugnet and
Associates, in litt., 1992). Another respondent, based on anecdotal
data, concluded that the habitat for the vernal pool fairy shrimp, and
the vernal pool tadpole shrimp has been insufficiently described. He
reported them from roadside ditches, scrapes, tire track depressions,
or similar man-made ephemeral pools from 28 locations in Sacramento
County (E.J. Koford, Ebasco Environmental, in litt., 1992). This
commenter asserted that herbicides and/or mechanical weed control at
sites located along some railroad tracks may have promoted the habitat
for these species. One crustacean biologist, based on discussions,
examination of photographs of these sites, and personal knowledge of
the area concluded that they are remnant or disturbed vernal pools (J.
King pers. comm., 1992).
Service Response: The Service has reviewed carefully the assertion
that the crustaceans are found in non-vernal pool habitat. A number of
the sites that served as the basis for this belief have been examined
by Service biologists and were found to represent degraded vernal pool
habitat or, in one case, an ephemeral wetland located in a gravel pit
that likely was colonized by fairy shrimp washed in from adjacent
vernal pools during periods of high rainfall. Based on the best
information available, the Service believes that a significant portion
of these records most likely represent ``unusual'' vernal pools (e.g.,
rock depression pools) or vernal pool habitat that was incorrectly
identified. Some of these records, such as roadside ditches, scraped
areas, and airport runoff ditches almost certainly represent remnant
vernal pool habitat or are part of the swale systems connected to
vernal pools. Lack of experience or familiarity with vernal pool
ecosystems likely has led some respondents to misinterpret these
observations. Most of these disturbed habitats also are imperiled by
urban development, gravel mining, and, in the cases of roadside
ditches, grading and spraying of herbicides for highway maintenance. In
addition, the accurate identification of fairy shrimp is extremely
difficult because the morphological characters required to
differentiate the various species are often extremely subtle and can be
misinterpreted by biologists not specifically trained in fairy shrimp
identification. Widespread, common species, such as Lindahl's fairy
shrimp, can be mistaken for other fairy shrimp species. Some of the
records of the California linderiella and vernal pool fairy shrimp in
non-vernal pool habitats may result from such misidentifications.
The potential for a fairy shrimp population to persist after
habitat disturbance varies from case to case, depending upon specific
circumstances, such as the nature and intensity of disturbance, how
much of the original egg bank was destroyed, and other factors. With
the exception of a few extremely rare cases, plowed fields that
historically held vernal pool habitat do not support populations of
these species. The example provided by the commenter is not typical of
agricultural operations, as is pointed out in the commenter's statement
that this site was ``unlike other properties in the
area . . .'' (B. Sugnet, in litt., 1992), with respect to the degree of
disturbance (i.e., leveling) and adverse modification of the vernal
pool habitat.
Issue 28: Many respondents contended that the proposed rule did not
reflect accurately the success of vernal pool ``creation'' efforts. For
example, a number of commenters claimed that artificial vernal pools,
primarily in Sacramento and Placer Counties, cited in Sugnet and
Associates (1992), were successful and were adequate mitigation for
adverse impacts to vernal pools resulting from urban development. Other
commenters asserted that ongoing creation ratios of 2:1 or greater and
the ability to transplant these animals makes it likely that the
habitat for these species will increase over time.
One commenter stated that the ability to successfully transplant
the eggs of fairy shrimp and tadpole shrimp is well known. One
submitted report (Sugnet and Associates 1992) asserted that the four
fairy shrimp and vernal pool tadpole shrimp have been shown in the
``literature and in field sampling to be extremely hardy and capable of
surviving long-term in greatly disturbed conditions and artificial
habitats''. The report also stated that there are technical papers that
demonstrate the ability to rear shrimp in the laboratory. The party
submitting this report stated that they have been creating vernal pools
as mitigation for development projects and monitoring the fairy shrimp
and tadpole shrimp for the past three years from 1989 to 1992. They
stated that although the presence of adult fairy shrimp may be due to a
certain number of eggs continuing to hatch from the initial inoculum in
successive years due to differences in physiochemical parameters, the
presence of mating individuals and gravid female fairy shrimp in
artificial pools, as well as historically degraded habitat, leads them
to conclude that natural reproductive mechanisms are still at work. The
report stated that the California linderiella and the vernal pool fairy
shrimp can be transplanted successfully from one vernal pool location
to another. The supporting data and criteria by which success was
determined were not specified in the report. Based partly on the above
information, numerous commenters stated that the fairy shrimp and
vernal pool tadpole shrimp were not imperiled.
On the other hand, one crustacean biologist stated that the reports
of successful vernal pool creation have been ``generally poorly
controlled, completely lacking in long-term monitoring, and do not
appear in the peer reviewed scientific
literature * * *'' (J. King, in litt., 1992). In addition, this
commenter reported that ``contrary to common misconception these
organisms [vernal pool tadpole shrimp] are not easily raised outside of
their natural habitat.'' This crustacean specialist stated that their
efforts to maintain viable reproductive vernal pool tadpole shrimp in
the laboratory have been unsuccessful. Another biologist pointed out
that long-term studies of the effect of mixing genotypes in created
pools likely are adversely impacting the fairy shrimp and the vernal
pool tadpole shrimp (M. Simovich, in litt., 1992).
Eight biologists specializing in crustaceans or plants inhabiting
vernal pools stated that these habitats are an intricate ecosystem and
efforts to recreate them likely will not be successful until they are
more fully understood. Furthermore, six fairy shrimp specialists
concluded that protection of these animals is best assured via the
preservation of extant habitat and its associated community.
Service Response: In a review of 21 vernal pool creation projects
dispersed throughout California, Ferren and Gervitz (1990) concluded
that no conclusive data exist to substantiate the hypothesis ``that
vernal pools can be restored or created to provide functional values
within the range of variability of natural pools.'' Though some
individuals (Sugnet and Associates et al. 1992) have claimed complete
or some degree of success, these conclusions generally are based on
anecdotal unscientific studies and the persistence of fairy shrimp
after only a short period of time, e.g., three years or less. Moreover,
the principal pool creation technique (i.e., relocation of soil from
excavated pool bottoms versus inoculation of a known quantity of eggs)
and lack of scientifically designed monitoring do not allow for
collection of the necessary data to determine the long-term population
viability of transplanted species.
In a study on the preservation and management of vernal pools
(Jones and Stokes Associates 1990), the researchers concluded that the
``science of vernal pool creation is still in its infancy and is
primarily an experimental mitigation technique.'' Environmental
requirements, not dispersal, is likely the limiting factor in the
distribution of the fairy shrimp and the vernal pool tadpole shrimp (D.
Belk, pers. comm., 1992). The four species in this final rule require
unknown, but more restrictive environmental conditions than more widely
distributed taxa (J. King, in litt., 1992; M. Simovich, in litt., 1992;
R. Brusca, pers. comm., 1992). There are no demonstrated proven long-
term populations of the fairy shrimp or the vernal pool tadpole shrimp
in artificial habitats.
Artifically created habitats also may increase the threat of
hybridization between the four fairy shrimp and other more widespread
species. For example, Lindahl's fairy shrimp is a widespread species
found in western North America that inhabits a wide array of
conditions, ranging from pools whose salinity is high enough to support
brine shrimp (Artemia sp.) to snow melt pools. Poorly planned, careless
construction, or haphazard placement of the substrate during vernal
pool creation may enhance conditions for species like Lindahl's fairy
shrimp. Laboratory studies have shown that Lindahl's fairy shrimp and
the vernal pool fairy shrimp readily hybridize in the laboratory and
produce viable first generation hybrids (Fugate, pers. comm., 1992).
There is evidence that hybridization between other fairy shrimp has
occurred in the field because of human actions. Belk (1977) reported
that the westward dispersal from Texas and New Mexico of a desert fairy
shrimp (Streptocephalus dorothae) across extensive expanses of arid
land into Arizona may be due to the cattle ponds and livestock watering
holes that were built after the 1800's in the region. Wiman (1979)
reported that viable hybrid offspring are produced by this species and
Mackin's desert fairy shrimp (Streptocephalus mackini), a resident
species in Arizona.
Given these uncertainties associated with vernal pool creation, the
Service maintains that transplanting target species (e.g., listed,
proposed, and candidate species) into artificial pools cannot be
considered adequate replacement for the loss of occupied vernal pool
habitat. Even if such transplantation of the fairy shrimp and the
vernal pool tadpole shrimp and creation of their habitat were
documented to be a proven procedure rather than an evolving problematic
venture, artificial pool creation for the species listed herein would
not fulfill the mandates of section 2 of the Act, which require the
Service to develop programs that conserve the ecosystems upon which
listed species depend. As discussed elsewhere herein, natural habitats
throughout the ranges of the four species have been damaged or
eliminated. As a result, the Service concludes that the continued
survival and recovery of the three fairy shrimp and the vernal pool
tadpole shrimp only can be assured, at this time, by the preservation
of extant vernal pools and their associated watersheds.
Issue 29: Several comments were received questioning the
relationship between the Endangered Species Act and the Fifth Amendment
to the U.S. Constitution (e.g., ``taking'' without just compensation).
Service Response: The mere promulgation of a regulation, such as
the enactment of a statute, is rarely sufficient to establish that
private property has been taken unless the regulation on its face
denies the property owner the economically viable use of his property.
Listing pursuant to the Endangered Species Act does not automatically
restrict all uses of one's land. A property owner cannot establish that
his property has been taken as a result of a regulatory action such as
the listing of a species until he has first submitted a proposal to
develop the property and has received a determination as to the level
of development that will be allowed. The property owner must apply for
all available permits and waivers before a taking could potentially be
established. With respect to listing, this means that no takings can be
established until the property owner complies with section 10(a) of the
Act and the Service concludes that no permit to take incidental to an
otherwise lawful activity will be issued.
Issue 30: The Service received a comment that requested an
explanation of the applicability of Hoffman Homes Inc. v. EPA to vernal
pools.
Service Response: Hoffman Homes Inc. v. EPA, 916 F.2d 1310 (7th
Cir. 1992) held that an isolated wetland, with no shown effect on
interstate commerce, was not within EPA's nor the Corps of Engineers'
jurisdiction to regulate. That decision was vacated in the same year
(Hoffman Homes Inc. v. EPA, 975 F.2d 1554) and the issue reheard by the
same court in 1993 (Hoffman Homes Inc. v. EPA, 999 F.2d 256). In its
final interpretation of the issues presented in that case, the court
held that waters whose use, degradation, or destruction could affect
interstate commerce, were waters appropriately regulated by EPA and/or
the Corps (emphasis added). Based upon the facts as presented in that
case, however, the court could not find sufficient evidence to support
a conclusion that the wetland in question could potentially affect
interstate commerce. As such, the court determined this particular
water body to be outside the realm of EPA or Corps jurisdiction.
The Service is not aware how the EPA or Corps view this case
relative to vernal pools. Regardless of the interpretation, however, it
is the animal (as opposed to habitat) for which the Endangered Species
Act will afford protection with this final regulation. Should it be
determined that neither the Corps nor EPA have jurisdiction over these
wetlands, and that section 7 is not therefore applicable, then the
property owner may comply with the Endangered Species Act through
section 10 of the Act.
Summary of Factors Affecting the Species
After a thorough review and consideration of all information
available, the Service has determined that the Conservancy fairy shrimp
(Branchinecta conservatio Eng et al.), longhorn fairy shrimp
(Branchinecta longiantenna Eng et al.), and the vernal pool tadpole
shrimp (Lepidurus packardi Simon) should be classified as endangered
species; and the vernal pool fairy shrimp (Branchinecta lynchi Eng et
al.) should be classified as a threatened species. Procedures found at
section 4(a)(1) of the Endangered Species Act (16 U.S.C. 1531 et seq.)
and regulations (50 CFR part 424) promulgated to implement the listing
provisions of the Act were followed. A species may be determined to be
endangered or threatened due to one or more of the five factors
described in section 4(a)(1). These factors and their application to
the Conservancy fairy shrimp (Branchinecta conservatio), longhorn fairy
shrimp (Branchinecta longiantenna), vernal pool fairy shrimp
(Branchinecta lynchi), and the vernal pool tadpole shrimp (Lepidurus
packardi) are as follows:
A. The present or threatened destruction, modification, or
curtailment of their habitat or range. All three fairy shrimp and the
vernal pool tadpole shrimp are restricted to vernal pools in
California. The habitat of these animals is imperiled by a variety of
human-caused activities, primarily urban development, water supply/
flood control activities, and conversion of land to agricultural use.
Habitat loss occurs from direct destruction and modification of pools
due to filling, grading, discing, leveling, and other activities, as
well as modification of surrounding uplands that alters vernal pool
watersheds.
Rapid urbanization of areas containing vernal pools poses a
significant threat to the four species included in this final rule. In
the Central Valley, at least five pool complexes that were known to
contain suitable habitat for the vernal pool fairy shrimp and the
vernal pool tadpole shrimp were eliminated by urban development in the
late 1980's. Mitigation measures were either lacking or unsuccessful.
In general, the growth rate of human populations and associated urban
development throughout the Central Valley is equal to or exceeds that
of any other region in California. Indicative of this growth rate are
proposals to develop several new towns within the ranges of the vernal
pool fairy shrimp and the vernal pool tadpole shrimp. As an example,
two towns proposed in Placer and San Joaquin Counties would support
80,000 and 44,000 people, respectively, and likely would impact
significant amounts of vernal pool habitat for these species (Laver
1991, Wiegand 1991).
Vernal pools in the Redding area that likely provided habitat for
the vernal pool fairy shrimp and the vernal pool tadpole shrimp have
been impacted significantly by urban development and agricultural
conversion. Aerial photographs of an approximately 61-hectare (150
acre) area near the Redding Municipal Airport document that development
occurring between 1952 and 1992 resulted in the loss of 62 percent and
the degradation of 37 percent of the original vernal pools in this
vernal pool complex (Jim Nelson, California Fish & Game, pers. com.,
1993). The remaining pools at this site are inhabited by the vernal
pool fairy shrimp and the vernal pool tadpole shrimp. Vernal pool areas
around the airport have been zoned for enterprise, and sewer lines have
been installed in anticipation of development. Several proposed
residential development projects in the Redding area (e.g., Argyle West
and Eagle Crest projects) also would adversely affect the vernal pool
fairy shrimp and the vernal pool tadpole shrimp. A proposed electrical
transmission line also threatens several pools in the area. Eucalyptus
farms have been established on many historic vernal pool sites around
Redding and future groves are planted at the rate of approximately 810
hectares (2,000 acres) per year (J. Nelson, California Department of
Fish and Game, pers. comm. 1993).
In the Chico area, certain areas inhabited by the vernal pool
tadpole shrimp recently were ditched and drained (Patrick Kelly, Mount
Lassen Chapter of the California Native Plant Society, in litt., 1992).
In addition, at least four residential developments proposed in Chico,
including the Simmons Ranch, Foothill Park, Sierra Technology, and
Bidwell Ranch projects are proposed that would eliminate approximately
810 hectares (2,000 acres) of habitat containing vernal pools inhabited
by the vernal pool tadpole shrimp. No specific mitigation measures are
included in these projects for this animal.
Numerous residential and commercial development projects in the
Sacramento area pose a severe threat to vernal pool complexes inhabited
by populations of the vernal pool fairy shrimp and vernal pool tadpole
shrimp. These proposed and ongoing projects, sponsored by Federal,
State and local agencies, private interests, and local governments,
include, but are not limited to the closure of Mather Air Force Base,
modifications to Strawberry, Elk Grove, and Laguna Creeks, two proposed
surface gravel mines, and numerous residential developments including
the Elliot Ranch South, Churchill Downs, Elk Ridge Estates, and
Sunrise-Douglas projects.
Urban development and agricultural conversion imperil populations
of the vernal pool fairy shrimp and vernal pool tadpole shrimp in the
San Joaquin Valley. Castle Air Force Base is undergoing closure and the
U.S. Bureau of Prisons has proposed to build a prison on vernal pools
at this site known to contain the two fairy shrimp. The Corps has
proposed the Merced County Streams project that would facilitate urban
development in many areas that provide suitable habitat for the vernal
pool fairy shrimp and the vernal pool tadpole shrimp. Numerous projects
between Stockton and Bakersfield also would adversely impact the three
species, including the Mueller Ranch gravel mine in Stanislaus County,
a number of residential developments in San Joaquin County (e.g., the
Liberty project would affect approximately 2,000 vernal pools), the
Yosemite Lake project in Merced County, and the Ball Ranch project in
Fresno County.
Areas in the San Francisco Bay area that contain vernal pools also
are undergoing substantial urban development. Vernal pools inhabited by
the vernal pool fairy shrimp in the Livermore area of Alameda County
have been adversely impacted by urban development, agriculture, and
alteration of the hydrology of Altamont Creek (Alan Launer, Stanford
University Center for Conservation Biology, in litt., 1992). The City
of Livermore is evaluating land use options that could result in the
conversion of 3,002 hectares (7,420 acres) of natural habitat,
including vernal pools that provide suitable habitat for the vernal
pool fairy shrimp, to urban use for up to 30,000 people (City of
Livermore 1992; Susan Frost, Livermore Planning Department, pers.
comm., 1993). The proposed expansion of the municipal airport at Byron
Hot Springs in eastern Contra Costa County will eliminate a number of
pools inhabited by the vernal pool fairy shrimp.
Other vernal pools located in San Luis Obispo County, including
most of the known populations of the longhorn fairy shrimp and at least
one population of the vernal pool fairy shrimp, are located in
subdivided areas with constructed roads and lots for sale and
development (Eng et al. 1990; Dave Chipping, Amateur biologist, in
litt., 1992). To date, some of the sites have been cleared and
continued habitat loss is ongoing or impending. The Coastal Branch
Phase II (Coastal Aqueduct) of the State Water Project, proposed by the
California Department of Water Resources (Carol Nelson, California
Department of Water Resources, in litt., 1993), annually would convey
70,000 acre-feet of water from the Delta region of California to San
Luis Obispo and Santa Barbara Counties. It is unclear if this source of
water would allow urban development of the Soda Lake area, however, the
longhorn fairy shrimp and the vernal pool fairy shrimp may be adversely
affected by commercial development made possible by this project.
A 36-hectare (14 acre) vernal pool located at Skunk Hollow in
Riverside County containing a population of the vernal pool fairy
shrimp likely will be adversely affected by urban development and
possibly agricultural conversion (Art Davenport, Fish and Wildlife
Service, pers. comm., 1994; Joseph Jolliffe, Riverside County Planning
Department, in litt., 1992). The Rancho Bella Vista residential project
would impact this vernal pool and, along with other major roadways,
also impact the surrounding watershed (Joseph Jolliffe, in litt.,
1992). Skunk Hollow also contains a population of the Riverside fairy
shrimp (Streptocephalus woottoni), an endangered species (58 FR 41384).
Because of rapid urbanization, several highway projects are
proposed that may affect the vernal pool fairy shrimp and the vernal
pool tadpole shrimp. Vernal pools in the Sacramento area inhabited by
the vernal pool fairy shrimp and the vernal pool tadpole shrimp would
be affected adversely by the proposed widening of State Highway 16 in
Sacramento County. The State of California has proposed to extend State
Highway 505 from Vacaville to Collinsville in Solano County; this
project directly and/or indirectly would impact vernal pools inhabited
by the Conservancy fairy shrimp and the vernal pool tadpole shrimp (C.
Goude, pers. comm., 1993). Vernal pools inhabited by the vernal pool
tadpole shrimp may be affected by improvements to Highway 70 near
Gridley in Butte County (Chris Collison, California Department of
Transportation, pers. comm., 1993).
Agricultural conversion poses a widespread threat to remaining
vernal pools in the Central Valley. Sites containing fairy shrimp near
Pixley in Tulare County and Haystack Mountain in Merced County are
pockets of privately owned habitat remnants threatened by surrounding
agricultural operations (Eng et al. 1990). A 148-hectare (365 acres)
site with vernal pools adjacent to State Highway 41 north of Fresno in
Fresno County that likely contained the vernal pool fairy shrimp was
disced and graded in 1992 (Dames and Moore 1992). Two sites with vernal
pools in the Sacramento Valley recently were plowed or disced and
seeded with winter wheat, apparently in preparation for future urban
development (C. Goude, pers. comm., 1993). Almond and fruit orchards in
Stanislaus, Madera, and Fresno Counties continued to be planted in
habitat suitable for the vernal pool fairy shrimp and the vernal pool
tadpole shrimp (J. King pers. comm. 1993; K. Geer and J. Browning,
U.S.F.W.S., pers. obs. 1994).
Water supply/flood control activities also generally present a
degree of disturbance to affected pools that would preclude survival of
any substantial fraction of the populations. The timing, frequency, and
length of inundation of the vernal pool habitat are critical to the
three fairy shrimp and the vernal pool tadpole shrimp; any substantial
hydrologic change in these factors adversely affect the four species.
Diversion of watershed runoff feeding the pools can result in premature
pool dry-down before the life cycle of these animals is completed. The
three species of fairy shrimp and the vernal pool tadpole shrimp also
are intolerant of flowing water that washes away the egg bank.
Supplemental water from outside the natural watershed into vernal pools
can change the habitat into a marsh-dominated or a permanent aquatic
community that is unsuitable for the four species of vernal pool
shrimps. The modification of vernal pool areas to create artificial
reservoirs, such as the Modesto Reservoir and Turlock Lake in
Stanislaus County, have led to the extirpation of the vernal pool
tadpole shrimp population that was known to occur in the vernal pools
where these reservoirs now lie (J. King, pers. comm., 1993). Vernal
pool watershed areas have been reduced by conversion of uplands to
paved or grass-turf surfaces, by damming of swales caused by road
construction, or other construction activities. Physical barriers, such
as roads and canals, unsuitably deepen a vernal pool upstream of a
barrier, and can isolate a fairy shrimp or vernal pool tadpole shrimp
population from a portion of its aquatic habitat. Surface runoff,
including non-point runoff, is altered by disturbance from trenching,
grading, scraping, off-road vehicles, intensive livestock grazing, or
other activities that change amounts, patterns, and direction of
surface runoff to ephemeral drainages. Presence of summer water also
affects the hydrologic pattern. Introduction of water during the summer
disrupts the life cycles of the fairy shrimp and the vernal pool
tadpole shrimp by subjecting them to greater levels of predation by
animals requiring more permanent sources of water. Increased water also
converts vernal pools to unsuitable marsh habitat dominated by emergent
vegetation (e.g., cattails).
Direct and associated indirect impacts from the proposed Los
Vaqueros Project, a water-storage project in the Kellogg Creek
watershed of eastern Contra Costa County, would adversely impact two
vernal pool complexes that support the highest diversity of fairy
shrimp in the State (California Department of Fish and Game 1983). The
rock pools in this area are inhabited by the vernal pool fairy shrimp
and the longhorn fairy shrimp (John Gregg, Los Vaqueros Project, in
litt., 1992). Proposed construction of a major roadway, high-pressure
natural gas and petroleum pipelines, and 230,000 kV electrical
transmission lines at the Los Vaqueros Reservoir site would adversely
affect these species (Jones and Stokes Associates 1986, 1989, 1990,
1991).
Several proposed utility projects have the potential to affect all
of the three fairy shrimp and the vernal pool tadpole shrimp. For
example, the Pacific Gas Transmission Company--Pacific Gas and Electric
natural gas pipeline project extending from the Canadian border along
the west side of the Sacramento Valley to Fresno County has adversely
impacted a number of vernal pools containing the vernal pool fairy
shrimp, Conservancy fairy shrimp, and the vernal pool tadpool shrimp
(Federal Regulatory Energy Commission 1991; Arnold 1990; C. Nagano,
pers. obs., 1992 and 1993). The Service has issued a conference opinion
to the Federal Energy Regulatory Commission on a portion of this
project that will adversely impact the vernal pool fairy shrimp;
however, the applicant has indicated the mitigation measures will not
be implemented if the species is not listed (John Cassady, PGT-PG&E
Pipeline Expansion Project, in litt., 1993).
Off-road vehicle (ORV) use also imperils fairy shrimp and the
vernal pool tadpole shrimp inhabiting vernal pools (Bauder 1986, 1987).
ORVs cut deep ruts, compact soil, destroy native vegetation, and alter
pool hydrology. Fire fighting, security patrols, military maneuvers,
and recreational activities cumulatively have damaged vernal pool
habitats in many areas (Bauder 1986, 1987). In Solano County, an off-
road vehicle park adjacent to the Jepson Prairie Reserve owned by the
Nature Conservancy could adversely impact populations of the
Conservancy fairy shrimp and the vernal pool tadpole shrimp.
Other secondary impacts associated with urbanization include
disposal of waste materials into habitat for the four species included
in this final rule (Bauder 1986, 1987). Disposal of concrete, tires,
refrigerators, sofas, and other trash adversely affects these animals
by eliminating habitat, disrupting pool hydrology or, in some cases,
through release of toxic substances. Dust and other forms of air or
water pollution from commercial development or agriculture projects
also may be deleterious to these animals.
Filling of vernal pool wetlands without authorization from the
Corps also poses a threat to these species (Tricia Richards, Sacramento
County Planning and Community Development Department, in litt, 1991: D.
Strait, pers. comm., 1993). In Stanislaus County, a site with 61
hectares (150 acres) of vernal pool habitat that was potentially
inhabited by the vernal pool fairy shrimp was converted to irrigated
pasture in 1990 (Martha Naley, U.S. Fish and Wildlife Service, pers.
comm., 1991). A 112 hectare (275 acre) site containing vernal pool and
swale habitat for the vernal pool tadpole shrimp in the Jepson Prairie
area in Solano County was destroyed by discing in October 1992 (C.
Nagano and J. Knight, pers. obs., 1992).
The Service is aware of 10 actions in the last 2 years in the
Sacramento Valley, including agricultural conversion and urban
development, that have resulted in the damage or destruction of as many
as 17 hectares (43 acres) of vernal pools, exclusive of associated
watersheds, that likely provided habitat for the vernal pool fairy
shrimp and vernal pool tadpole shrimp (Dan Strait, U.S. Fish and
Wildlife Service pers. comm., 1993). Some of these activities were
undertaken without authority under the Clean Water Act. At least one of
these parties likely intended to alter the elevations of the site to
eliminate one or more of the parameters used by the Corps to define a
wetland according to their 1987 jurisdictional manual. Other similar
deliberate activities that are damaging or destroying vernal pools are
likely occurring throughout the Central Valley (D. Strait, pers. comm.,
1993). The Service is concerned that unless a final rule for the four
species is issued and effective immediately upon publication, this may
result in landowners knowingly destroying the habitat of these animals.
Previously, this has occurred with other endangered species that
inhabit vernal pools in the Santa Rosa area of Sonoma County (C. D.
Nagano and J. C. Knight, U.S. Fish and Wildlife Service, pers. obs.,
1992). Because of the immediate threat posed by these on-going
activities, the Service finds that good cause exists for this rule to
take effect immediately upon publication in accordance with 5 U.S.C.
553(d)(3).
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Not known to be applicable.
C. Disease or predation. The three fairy shrimp and the vernal pool
tadpole shrimp are a food item in the diet of migratory waterfowl and
other native animals (Krapu 1974; Swanson et al. 1974; J. King, pers.
comm., 1992). However, this naturally occurring predation is not
considered a threat to the continued existence of these crustaceans.
Introduction of the bullfrog (Rana catesbeiana) to areas inhabited
by the vernal pool tadpole shrimp appears to increase the threat of
predation facing this crustacean. These amphibians are voracious
predators on many species of native and exotic animals. Large numbers
of vernal pool tadpole shrimp were found in stomach content analysis of
bullfrogs captured in vernal pools in the Chico area (Marc Hayes,
Oregon State University, pers. comm., 1993; Robert Fisher, University
of California, pers. comm., 1993). Although bullfrogs are unable to
establish permanent breeding populations in vernal pools, dispersing
immature males take up residence in these areas during the rainy season
(Mark Jennings, U.S. National Biological Survey, pers. comm. to Peter
Sorensen, 1994). A number of bullfrogs were observed at Jepson Prairie
during the winter of 1992/1993 (C. Nagano, pers. obs. 1992/93).
Vernal pool tadpole shrimp were found to have been parasitized by
flukes (Trematoda) of an undetermined species at the Vina Plains,
Tehama County (Ahl 1991). The gonads of both sexes were greatly reduced
in size and their body cavities were filled with many young flukes
(metacercariae). Ahl concluded that parasitic castration was the major
limiting factor affecting reproduction of the vernal pool tadpole
shrimp at the Vina Plains. The range and extent of this parasite is
unknown.
There are no known diseases affecting the three fairy shrimp and
the vernal pool tadpole shrimp.
D. The inadequacy of existing regulatory mechanisms. The primary
cause for the decline of these species is loss of habitat from human
activities. State and local laws and regulations have not been passed
to protect the four species included in this final rule. Other
regulatory mechanisms necessary for the conservation of vernal pools
have proven inadequate and ineffective.
The environmental review process under the California Environmental
Quality Act for projects that result in loss of habitats that support
these animals sometimes requires development and implementation of
mitigation plans. However, the effectiveness of this statute in
protecting vernal pool habitat has not been consistent. As documented
above, fairy shrimp and vernal pool tadpole shrimp habitat typically
has been eliminated without offsetting mitigation measures. Most
mitigation plans that have been required were designed specifically for
vernal pool plants. The artificial creation of vernal pools as
compensatory mitigation has not been proven scientifically to be
successful (Ferren and Gevirtz 1990; Zedler and Black 1988; J. King, in
litt., 1992; M. Simovich, in litt., 1992; R. Brusca, in litt., 1992).
Under section 404 of the Clean Water Act, the Corps regulates the
discharge of fill material into waters of the United States, which
include navigable waters, wetlands (e.g., vernal pools), and other
waters. The Clean Eater Act requires project proponents to obtain a
permit from the Corps prior to undertaking many activities (grading,
discharge of soil or other fill material, etc.) that would result in
fill of wetlands. The Corps promulgated Nationwide Permit 26 to address
fill of isolated or headwater wetlands totalling less than 4 hectares
(10 acres). Under Nationwide Permit 26, proposals that involve fill of
wetlands less than one acre are considered authorized. Where fill would
aversely modify between 0.4 and 4.0 hectares (one and 10 acres) of
wetland, the Corps circulates for comment a predischarge notification
to the Service and other interested parties to determine whether or not
an individual permit should be required for fill activity and
associated impacts.
Individual Corps permits are required for discharge of fill
material that would fill or adversely modify greater than 4 hectares
(10 acres) of wetlands. The review process for individual permits is
more rigorous than for nationwide permits. Unlike nationwide permits,
an analysis of cumulative wetland impacts is required for individual
permit applications. Resulting permits may include special conditions
that require potential avoidance or mitigation for environmental
impacts. On nationwide permits, the Corps has discretionary authority
to require an individual permit if the Corps believes that resources
are sufficiently important, regardless of the wetland's size. In
practice, however, the Corps generally does not require an individual
permit when a project qualifies for a nationwide permit, unless a
threatened or endangered species or other significant resources would
be adversely affected by the proposed activity. Most vernal pools and
swales within the range of these three species of fairy shrimp and the
vernal pool tadpole shrimp encompass less that 4 hectares (10 acres).
The discontinuous distribution of these sites has allowed some
landowners to divide large projects into several smaller projects.
Wetland acreage on these smaller projects is usually under 4 hectares
(10 acres), and therefore, most projects qualify for Nationwide Permit
26. Discing and other farming or ranching practices, including
overgrazing, can destroy vernal pool habitat without a permit from the
Corps because many of these activities are exempt from regulation under
the Clean Water Act. The discontinuous configuration of the pools and
swales further obscures separation of these wetland losses.
The Sacramento District of the Corps has several thousand vernal
pools under its jurisdiction (Coe 1988), which includes most of the
geographic range encompassing the four species listed herein. Areas
occupied by these animals are undergoing rapid urbanization and current
trends indicate 60 to 70 percent of these pools could be destroyed in
the next 10 to 20 years (Coe 1988).
The Conservancy fairy shrimp, vernal pool fairy shrimp, and the
vernal pool tadpole shrimp are found in vernal pools within the Vina
Plains in Tehama County. They likely are found in the vicinity of
ephemeral swales and drainages that support Limnanthes floccosa ssp.
calfornica (Butte County meadowfoam). This plant was listed as an
endangered species on June 8, 1992 (57 FR 24192). These crustaceans
could be protected indirectly by actions taken to conserve the Butte
County meadowfoam. A ``conservation plan'' has been drafted for the
City of Chico (Jokerst 1989) that details various actions designed to
conserve the plant, such as creation of a preserve system. However, the
draft plan does not address plant populations and vernal pool habitat
outside city limits. Moreover, the City of Chico has yet to adopt the
plan. Meanwhile, typical of other vernal pool areas, the Corps
continues to use nationwide permits to authorize numerous residential
developments in the Chico area.
The Conservancy fairy shrimp and the longhorn fairy shrimp each
have portions of one population on lands under public ownership.
Portions of four populations of the vernal pool fairy shrimp are on
lands under public ownership. Portions of eight populations of the
vernal pool tadpole shrimp are on lands under public ownership. The
Nature Conservancy owns or controls portions of vernal pool habitat,
including Jepson Prairie in Solano County, Vina Plains in Tehama
County, the Carrizo Plain in San Luis Obispo County, and Santa Rosa
Plateau area in Riverside County. All three fairy shrimp species and
the vernal pool tadpole shrimp occur on Conservancy property.
Management plans for some Federal, State, local, and Conservancy
properties include provisions to protect vernal pools but none
specifically address these species. Surrounding privately owned vernal
pool habitat and watershed are not protected.
E. Other natural or man-made factors affecting their continued
existence. The pools and, in some cases, pool complexes supporting the
fairy shrimp species and the vernal pool tadpole shrimp are usually
small and unforeseen natural and man-caused catastrophic events
threaten the elimination of some sites. Many of the known populations
of the four species are comprised of single or less than five pools
(e.g., 3 of 6 Conservancy fairy shrimp populations, 1 of 3 longhorn
fairy shrimp populations, 20 of 34 vernal pool fairy shrimp
populations, 1 of the 18 vernal pool tadpole shrimp populations). In
many cases, these populations are remnants of larger, multi-pool
populations that originally existed in historic vernal pool complexes.
Such populations are important for their genetic uniqueness, which has
been documented for the Conservancy fairy shrimp and the vernal pool
tadpole shrimp (Fugate 1993; J. King pers. comm. 1992). However, these
important populations are those that have the most tenuous chances for
long-term persistence due to population bottlenecks in conjunction with
low gene flow between populations (J. King pers. comm. 1993).
Additionally, some of the areas with the largest populations (i.e.,
greatest number of vernal pools remaining in pool complexes) are
currently under threat of fragmentation by numerous proposed projects
(e.g., Sacramento and Placer Counties).
The four crustaceans in these small habitat patches are vulnerable
to random fluctuations or variation (stochasticity) due to annual
weather patterns and availability of food and other environmental
factors superimposed on the cumulative threats described throughout
this rule. The populations of the four species are isolated from other
conspecific populations and are distributed in discontinuous vernal
pool systems. Such populations are vulnerable to stochastic extinction.
The breeding of closely related individuals may cause genetic problems
in small populations of the four species, particularly in the
expression of deleterious genes (known as inbreeding depression).
Individuals and populations possessing deleterious genetic material are
less able to cope with environmental conditions and adapt to
environmental changes, even relatively minor ones. Further, small
populations are subject to the effects of genetic drift (the random
loss of genetic variability). The phenomenon also reduces the ability
of individuals and populations to respond successfully to environmental
stresses. Overall, these genetic factors could influence the
survivability of isolated populations of each of the three fairy shrimp
and the vernal pool tadpole shrimp.
The Service has carefully assessed the best scientific and
commercial information regarding past, present, and future threats
faced by these species in determining to issue this final rule. Based
on this evaluation, the preferred action is to list the Conservancy
fairy shrimp, longhorn fairy shrimp, and the vernal pool tadpole shrimp
as endangered; and the vernal pool fairy shrimp as threatened. The
three fairy shrimp and the vernal pool tadpole shrimp are imperiled by
rapid urbanization, conversion of land to agricultural use, off-road
vehicle use, and changes in hydrologic patterns in areas they occupy.
Only a small proportion of the pools are permanently protected from
these threats. Numerous ongoing and proposed development projects pose
an imminent threat to the three fairy shrimp and the vernal pool
tadpole shrimp. Extraordinary increases in human populations and
associated pressures from urban development have rendered existing
regulatory mechanisms inadequate. Stochastic events, which commonly
affect small isolated populations, also may result in extirpation of
some populations of these species. Four of the six known populations of
the Conservancy fairy shrimp are imperiled. There are threats to the
four known populations of the longhorn fairy shrimp. Twenty-eight of
the 32 known populations of the vernal pool fairy shrimp are under
threat. Fourteen of the 18 known populations of the vernal pool tadpole
shrimp are imperiled. Because the Conservancy fairy shrimp, longhorn
fairy shrimp, and the vernal pool tadpole shrimp are in danger of
extinction throughout all or a significant portion of their ranges,
these species fit the definition of endangered as defined in the Act.
Because the vernal pool fairy shrimp is likely to become an endangered
species within the foreseeable future throughout all or a significant
portion of its range, this species fits the definition of threatened as
defined in the Act.
The Service considers the change in the listing status from
endangered to threatened of the vernal pool fairy shrimp to be
warranted based on two factors. Since the proposed rule was published,
data gathered by Sugnet and Associates (1993b) and information
otherwise available to the Service indicate that the geographic extent
and number of populations and subpopulations of this species are larger
than was originally known. The distribution of the species is not so
fragmented as to reduce the likelihood of recolonization. As mentioned
previously in this final rule, recolonization following stochastic
local extinctions is probably a determining factor for the long-term
persistence of this species.
Taking this information into consideration, as well as the actions
discussed under factors A, C, D, and E in the ``Summary of Factors
Affecting the Species'' section of this rule, the Service finds that
the vernal pool fairy shrimp is not in imminent danger of extinction
but is likely to become so in the foreseeable future throughout all or
a significant portion of its range.
Designation of critical habitat for the vernal pool fairy shrimp,
longhorn fairy shrimp, Conservancy fairy shrimp, and the vernal pool
tadpole shrimp is not prudent at this time for the reasons discussed
below.
Critical Habitat
Section 4(a)(3) of the Act, as amended, requires that to the
maximum extent prudent and determinable, the Secretary designate
critical habitat at the same time the taxa are listed. The Service
finds that designation of critical habitat is not prudent for these
species at this time. Because the three fairy shrimp and vernal pool
tadpole shrimp face numerous anthropogenic threats (see Factor A in
``Summary of Factors Affecting the Species''), the publication of
precise maps and descriptions of critical habitat in the Federal
Register would make these species more vulnerable to incidents of
vandalism and, therefore, would contribute to the decline of these
species. A number of sites inhabited by the four species occur on
private land that is undergoing rapid urban and agricultural
development. As documented above, some areas have been destroyed to
eliminate vernal pool characteristics and escape regulatory
jurisdiction by the Corps. The proper agencies have been notified
concerning management requirements of these animals. Protection of the
habitat of these species will be addressed through the recovery,
section 7 consultation, and incidental take permitting processes.
Federal involvement in areas where these animals occur can be
identified without designation of critical habitat. Therefore, the
Service finds that designation of critical habitat for these animals is
not prudent at this time, because such designation likely would
increase the degree of threat from vandalism or other human activities.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the endangered Species Act include recognition,
recovery actions, requirements for Federal protection, and prohibitions
against certain activities. Recognition through listing encourages and
results in conservation actions by Federal, State, local, and private
agencies, groups, and individuals. The Endangered Species Act provides
for possible land acquisition and cooperation with the States and
requires recovery actions be carried out for all listed species. Such
actions are initiated following listing. The protection required of
Federal agencies and the prohibitions against taking are discussed, in
part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(2) requires Federal agencies to insure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of such a species or to destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into formal consultation with the Service.
As described above, the U.S. Army Corps of engineers exerts section
404 jurisdiction over habitats supporting these animals. Nationwide
permits are not valid where a federally listed endangered or threatened
species would be affected by the proposed project. When listed species
may be affected, formal consultation is required pursuant to section 7
of the Act before nationwide permits become effective. In addition, the
Department of Housing and Urban Development (HUD) may insure housing
loans in areas that presently support these animals; HUD actions
regarding these loans also would be subject to review by the Service
under section 7 of the Act.
Other Federal agencies that possibly could be affected if these
animals are listed include the U.S. Air Force, U.S. Department of
Agriculture (Farmers Home Administration), Veterans Administration, and
the Department of Transportation (Federal Highways Administration).
Populations of the longhorn fairy shrimp, vernal pool fairy shrimp, and
the vernal pool tadpole shrimp occur on property owned by the Bureau of
Land Management at the Carrizo Plain in San Luis Obispo County; and the
U.S. Air Force at Castle Air Force Base, Mather Air Force Base, and
Beale Air Force Base.
The listing of these fairy shrimp and the vernal pool tadpole
shrimp will also bring section 5 and 6 of the Endangered Species Act
into effect. Section 5 authorizes acquisition of lands for the purposes
of conserving endangered and threatened species. Pursuant to section 6,
the Service would be able to grant funds to affected States for
management actions aiding in protection and recovery of these animals.
Listing these fairy shrimp and the vernal pool tadpole shrimp as
endangered provides for the development of a recovery plan (or plans)
for them. Such plan(s) will bring together State and Federal efforts
for conservation of the animals. The plan(s) will establish a framework
for agencies to coordinate activities and cooperate with each other in
conservation efforts. The plan(s) will set recovery priorities and
estimate costs of various tasks necessary to accomplish them. They also
will describe site-specific management actions necessary to achieve
conservation and survival of the fairy shrimp and the vernal pool
tadpole shrimp.
The Act and implementing regulations found at 50 CFR 17.21 for
endangered species and 17.31 for threatened species set forth a series
of prohibitions and exceptions that apply to all endangered wildlife
and to threatened wildlife not covered by a special rule. These
prohibitions, in part, make it illegal for any person subject to the
jurisdiction of the United States to take, import or export, transport
in interstate or foreign commerce in the course of commercial activity,
or sell or offer for sale in interstate or foreign commerce any such
species. It also is illegal to possess, sell, deliver, carry,
transport, or ship any such wildlife that was illegally taken. Certain
exceptions can apply to agents of Service and State conservation
agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered and threatened animal species under certain
circumstances. Regulations governing permits are at 50 CFR 17.22,
17.23, and 17.32. For endangered species, such permits are available
for scientific purposes, to enhance the propagation or survival of the
species, to alleviate economic hardship in certain circumstances, and/
or for incidental take in connection with otherwise lawful activities.
For threatened species, there are also permits for zoological
exhibition, educational purposes or other purposes consistent with the
purposes of the Act. Further information regarding regulations and
requirements for permits may be obtained from the U.S. Fish and
Wildlife Service, Ecological Services, Endangered Species Permits, 911
N.E. 11th Avenue, Portland, Oregon 97232-4181 (503/231-2063; FAX 503/
231-6243).
National Environmental Policy Act
The Fish and Wildlife Service has determined that an Environmental
Assessment, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Endangered
Species Act of 1973, as amended. A notice outlining the Service's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).
References Cited
A complete list of all references cited herein is available,
upon request, from the Field Supervisor, Sacramento Field Office,
(see ADDRESSES section).
Authors
The primary authors of this final rule are Chris Nagano and Jim
Browning, Sacramento Field Office, 2800 Cottage Way Room E-1823,
Sacramento, California 95825 (916/978-4866).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Regulations Promulgation
Accordingly, part 17, subchapter B of chapter I, title 50 of the
Code of Federal Regulations, is amended as set forth below:
PART 17--[AMENDED]
1. The authority citation for Part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Section 17.11(h) is amended by adding in the table the following
in alphabetical order under CRUSTACEANS to the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h)* * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
--------------------------------------------------- Historic range where endangered or Status When listed Critical Special
Common name Scientific name threatened habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Crustaceans
* * * * * * *
Shrimp, Conservancy Branchinecta conservatio U.S.A. (CA)............. NA..................... E 549 NA NA
fairy.
* * * * * * *
Shrimp, longhorn fairy.. Branchinecta U.S.A. (CA)............. NA..................... E 549 NA NA
longiantenna.
* * * * * * *
Shrimp, vernal pool Branchinecta lynchi..... U.S.A. (CA)............. NA..................... T 549 NA NA
fairy.
Shrimp, vernal pool Lepidurus packardi...... U.S.A. (CA)............. NA..................... E 549 NA NA
tadpole.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: August 31, 1994.
Mollie H. Beattie,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 94-23156 Filed 9-16-94; 8:45 am]
BILLING CODE 4310-55-P-M
