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DEPARTMENT OF THE INTERIOR

Veterans Affairs Department

CFR Citation: 50 CFR Part 17

RIN ID: RIN 1018-AT45

NOTICE: Part IV

DOCUMENT ACTION: Proposed rule.

SUBJECT CATEGORY: Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Riverside Fairy Shrimp (Streptocephalus woottoni)

DATES: We will accept comments until May 27, 2004. Public hearing requests must be received no later than June 11, 2004. A second comment period will be opened upon the publication of the pending economic analysis.

DOCUMENT SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the federally endangered Riverside fairy shrimp (Streptocephalus woottoni) pursuant to the Endangered Species Act of 1973, as amended (Act). We propose to designate a total of approximately 5,795 acres (ac) (2,345 hectares (ha)) of critical habitat in Los Angeles, Orange, Riverside, San Diego, and Ventura Counties, California.

We hereby solicit data and comments from the public on all aspects of this proposal, including data on economic and other impacts of the designation. We may revise this proposal prior to final designation to incorporate or address new information received during the two public comment periods.

SUMMARY: Interior Department, Fish and Wildlife Service,

SUPPLEMENTAL INFORMATION

Public Comments Solicited

It is our intent that any final action resulting from this proposal will be as accurate as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. Maps of essential habitat not included in the proposed critical habitat are available for viewing by appointment during regular business hours at the Carlsbad Fish and Wildlife Office (see ADDRESSES section) or on the Internet at http://carlsbad.fws.gov. On the basis of public comment, during the
development of the final rule we may find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2), or are not appropriate for exclusion, and in all of these cases, this information would be incorporated into the final designation. We particularly seek comments concerning:
(1) The reasons why any areas should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh any threats to the species resulting from the designation;
(2) Specific information on the amount and distribution of Riverside fairy shrimp and its habitat, and which habitat or habitat components are essential to the conservation of this species and why; (3) Land use designations and current or planned activities in or adjacent to the areas proposed and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other potential impacts resulting from the proposed designation, in particular, any impacts on small entities;
(5) Some of the lands we have identified as essential for the conservation of the Riverside fairy shrimp are not being proposed as critical habitat. The following areas essential to the conservation of the Riverside fairy shrimp are not being proposed as critical habitat: Lands on Marine Corps Air Station Miramar (MCAS, Miramar); ``mission critical'' training areas on Marine Corps Base, Camp Pendleton (Camp Pendleton); areas within San Diego Multiple Species Conservation Program (MSCP) and the Orange County CentralCoastal Natural Communities Conservation Program (NCCP); and areas in the Draft Western Riverside Multiple Species Habitat Conservation Plan (MSHCP). These areas have been excluded because we believe the benefit of excluding these areas outweighs the benefit of including them. We specifically solicit comment on the inclusion or exclusion of such areas and: (a) Whether these areas are essential; (b) whether these areas warrant exclusion; and (c) the basis for not designating these areas as critical habitat (section 4(b)(2) of the Act);
(6) We request information from the Department of Defense to assist the Secretary of the Interior in evaluating critical habitat on lands administered by or under the control of the Department of Defense, specifically information regarding impacts to national security associated with proposed designation of critical habitat; and (7) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES section). Please submit electronic comments in ASCII file format and avoid the use of special characters or any form of encryption. Please also include ``Attn: RIN 1018AT45'' in your email subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your internet message, contact us directly by calling our Carlsbad Fish and Wildlife Office at phone number 7604319440. Please note that the e mail address ``fw1rvfs@r1.fws.gov'' will be closed out at the termination of the public comment period.

Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as
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representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
Background
Designation of Critical Habitat Provides Little Additional Protection to Species

In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of conservation resources. The Service's present system for designating critical habitat is driven by litigation rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and Implementing the Act

While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, ``Because the ESA [Act] can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.''

Currently, only 445, or 36 percent of the 1244 listed species in the U.S. under the jurisdiction of the Service, have designated critical habitat (Service 2004). We address the habitat needs of all 1244 listed species through conservation mechanisms such as listing, section 7 consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the States, and the Section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species. Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits regarding critical habitat designation, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an everincreasing series of court orders and courtapproved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits and to comply with the growing number of adverse court orders. As a result, the Service's own proposals to undertake conservation actions based on biological priorities are significantly delayed.

The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for additional public participation beyond those minimally required by the Administrative Procedures Act (APA), the Act, and the Service's implementing regulations, or to take additional time for review of comments and information to ensure the rule has addressed all the pertinent issues before making decisions on listing and critical habitat proposals, due to the risks associated with noncompliance with judicially imposed. This in turn fosters a second round of litigation in which those who will suffer adverse impacts from these decisions challenge them. The cycle of litigation appears endless, is very expensive, and in the final analysis provides little additional protection to listed species.

The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with National Environmental Policy Act (NEPA), all are part of the cost of critical habitat designation. These costs result in minimal benefits to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

Please see the prior final rule designating critical habitat for the Riverside fairy shrimp (66 FR 29384; May 30, 2001), which was subsequently vacated, and the Recovery Plan for the Vernal Pools of Southern California (Service 1998) for a general discussion of the biology of this species and vernal pools ecosystems.

Status and Distribution

Prior to the discovery of the Santa Rosa Plateau fairy shrimp and new findings of Riverside fairy shrimp, the Riverside fairy shrimp was believed to have the most restricted distribution of endemic California fairy shrimp (Eng et al. 1990, Simovich and Fugate 1992). The range of this species is still among the most limited and includes Ventura, Los Angeles, Orange, San Diego, and Riverside Counties in southern California, and Bajamar in Baja California, Mexico (Brown et al. 1993; Service 1998). With the exception of the Riverside County populations, and the population at Cruzan Mesa in Los Angeles County, all populations are within approximately 15 miles (mi) (24 kilometers (km)) of the coast. The U.S. populations of Riverside fairy shrimp range over a northsouth distance of approximately 125 mi (200 km).

The known populations of Riverside fairy shrimp can be categorized into core population areas and isolated populations. The core population areas are defined by multiple pools or pool complexes containing Riverside fairy shrimp that are within close proximity (approximately 5 mi (8 km)) of other occupied pools and pool complexes. Isolated populations are defined by single pools or pool complexes known to contain Riverside fairy shrimp that are separated from other known locations by greater than 10 mi (16 km). There are four core population areas and seven isolated populations. The core population areas are located in the Orange County Foothills, Western Riverside County, the southern coastal portion of Camp Pendleton in San Diego County, and Otay Mesa in San Diego County. Isolated populations are found near the City of Moorpark in Ventura County, near the City of Santa Clarita on Cruzan Mesa and at Los Angeles International Airport in Los Angeles County, at March Air Reserve Base (ARB) and near the City of Banning in Riverside County, and in the City of Carlsbad and on Marine Corps Air Station (MCAS) Miramar in San Diego County.

In Ventura County, Riverside fairy shrimp occur within a single large pool in a grassland area at Carlsberg Ranch. Recently, urban development adjacent to this pool appears to have affected the pool's hydrology (Rick Farris, U.S. Fish
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and Wildlife Service, personal communication 2003).

In Los Angeles County, the species occurs at the Los Angeles International Airport and Cruzan Mesa. Habitat at the Los Angeles International Airport has been impacted by occasional scraping and draining of pooling areas; however, viable Riverside fairy shrimp cysts persist (U.S. Federal Aviation Administration et al. 2003). At Cruzan Mesa, upland vegetation associated with the two occupied pools may have recently been removed, which could result in siltation of these pools (Rick Farris, U.S. Fish and Wildlife Service, personal communication 2003). In the Spring of 2003, a limited number of fairy shrimp cysts likely to be Riverside fairy shrimp were found at Madrona Marsh in the City of Torrence; however, these cysts have not yet been identified conclusively to the species level. Ongoing work is being done in the area to determine if there is a population of Riverside fairy shrimp at Madrona Marsh.

Vernal pools occupied by Riverside fairy shrimp in Orange County occur at the former MCAS El Toro, Edison Viejo Conservation Bank, Saddleback Meadows, O'Neill Regional Park, Live Oak Plaza, Tijeras Creek, Chiquita Ridge, and Radio Tower Road. The Orange County populations of the species occur primarily within vernal pools formed by depressions in slumping earth or impounded ephemeral streams (Riefner and Pryor 1996). Many of these pools have been affected by grazing and urban development (Service 2001). These vernal pool complexes form a chain of pools along the Orange County Foothills. At the south end of this chain is a pool located on the agricultural lease land of Camp Pendleton, and at the north end is the pool on the former MCAS, El Toro.

In Riverside County, there are seven naturally occurring populations, one created population, and a proposed creation of habitat for Riverside fairy shrimp, all of which are located within the planning area for the Western Riverside County MSHCP. The naturally occurring locations are the Banning Pool, the vernal pools on March ARB, the Australia Pool in the Lake Elsinore Back Basin, the Schlinger Pool, the Clayton Ranch Pools (slated for relocation in Fiscal Year 20042005), the Scott Road Pool, and the Skunk Hollow Pool and the Field Pool. An artificial vernal pool complex has been created at Johnson Ranch to offset the impacts to a population of Riverside fairy shrimp by the Redhawk Development. Another artificial vernal pool creation is planned on the Clayton Ranch project to offset the taking of Riverside fairy shrimp in the Clayton Ranch Pool mentioned above. Riverside County populations represent the most inland extent of the species' range (Eriksen and Belk 1999). The type locality for the species was located within Riverside County, but has since been extirpated (Eriksen 1988). There were also two pools known to contain Riverside fairy shrimp on, or near, Tribal lands of Pechanga Band of Luiseno Indians, however, the current status of these pools is unknown.

In San Diego County, there are vernal pools that contain Riverside fairy shrimp in the coastal regions of the County. In north coastal San Diego County, the Riverside fairy shrimp occurs in vernal pools on Camp Pendleton and in a pool in the City of Carlsbad. On Camp Pendleton, the Riverside fairy shrimp locations are concentrated in the south coastal section of the base near Interstate 5 (Recon 2001) and a single slump pool, mentioned above, on the northern portion of the base on land leased to the State of California (Michael Brandman Associates 1998). The pools on Camp Pendleton near Interstate 5 occur in an area used for training exercises (Moeur 1998). The pool complex containing Riverside fairy shrimp in Carlsbad is conserved, but it is surrounded by urban development. In central San Diego County, there is a single occupied pool on MCAS, Miramar east of Interstate 15. In southern San Diego County, the species occurs in several pool complexes on Otay Mesa near the U.S./Mexico border. There has been significant work done to restore and enhance vernal pools for listed species, including the Riverside fairy shrimp, at three sites on Otay Mesa; The Cal Terraces site, Otay High School site, and the Arnie's Point site. Other occupied pools on Otay Mesa are threatened by offroad vehicle activity and urban development (Bauder and McMillan 1998; The Environmental Trust 2003).

The Riverside fairy shrimp faces threats throughout its range. These threats can be divided into three major categories: (1) Direct destruction of vernal pools and vernal pool habitat as a result of construction, vehicle traffic, domestic animal grazing, dumping, and deep plowing; (2) indirect threats which degrade or destroy vernal pools and vernal pool habitat over time including altered hydrology (e.g., damming or draining), invasion of alien species, habitat fragmentation, and associated deleterious effects resulting from adjoining urban land uses; and (3) longterm threats including the effect of isolation on genetic diversity and locally adapted genotypes, air and water pollution, climatic variations, and changes in nutrient availability (Bauder 1986; Service 1993).

Previous Federal Actions

Please see the prior final rule designating critical habitat for the Riverside fairy shrimp for a description of previous Federal actions through May 2001 (66 FR 29384; May 30, 2001). For the reasons outlined in that rule, we have determined that the designation of critical habitat for the Riverside fairy shrimp is prudent.

On November 6, 2001, the Building Industry Legal Defense Foundation, Foothill/Eastern Transportation Corridor Agency, National Association of Home Builders, California Building Industry Association, and Building Industry Association of San Diego County filed a lawsuit in the United States District Court for the District of Columbia challenging the designation of Riverside fairy shrimp critical habitat and alleging errors in our promulgation of the final rule. On March 13, 2002, the Court granted the request of the Center for Biological Diversity, Inc. and Defenders of Wildlife, Inc. to intervene as defendants in the case. We requested a voluntary remand, and on October 30, 2002, the Court vacated the designation and ordered the Service to publish a new final rule with respect to the designation of critical habitat for the Riverside fairy shrimp (Building Industry Legal Defense Foundation, et al., v. Gale Norton, Secretary of the Interior, et al., and Center for Biological Diversity, Inc. and Defenders of Wildlife, Inc. Civil Action No. 012311 (JDB) (U.S. District Court, District of Columbia)).

Critical Habitat

Please see the prior final rule designating critical habitat for the Riverside fairy shrimp for a general discussion on sections 3, 4, and 7 of the Act and our policy in relation to critical habitat (66 FR 29384; May 30, 2001).

Criteria for Defining Essential Habitat

The Recovery Plan for Vernal Pools of Southern California (Recovery Plan) (Service 1998) outlines areas essential to the conservation of six species, including the Riverside fairy shrimp. The Recovery Plan details the steps that are necessary to stabilize the decline of these species and steps necessary to recover these species to the point where protection under the Act is no longer required. These steps are essential for the conservation of the Riverside fairy shrimp. [[Page 23027]]

The Recovery Plan uses Management Areas to define regional conservation needs. We have used these same Management Areas to assist us in identifying specific areas essential to the conservation of the species. The Recovery Plan identified vernal pool complexes essential for the conservation of the Riverside fairy shrimp. Following the publication of the Recovery Plan, additional populations essential to the conservation of the Riverside fairy shrimp have been located.

The Riverside fairy shrimp has a narrow geographic distribution. Within its range, the species has specialized habitat requirements. The Riverside fairy shrimp requires vernal pools or ephemeral ponds that pool for several months of each year but also have a dry period. These pools do not naturally occur in great abundance, and in recent years, this type of wetland has been degraded and lost to offroad vehicles, grazing, farming, and development.

In this critical habitat proposal we have identified areas that are essential to the conservation of Riverside fairy shrimp. Both core and isolated populations are essential for conservation of a species of limited numbers and distribution (Gilpin and Soul[eacute] 1986; Lesica and Allendorf 1995; Lande 1999). We have determined that all of the known locations of Riverside fairy shrimp are essential to the conservation of the species. There are four areas with core population areas of Riverside fairy shrimp occurrences. These areas are defined by complexes of vernal pools or ephemeral ponds that are within 5 mi (8 km) of one another. These occurrences are essential as source populations for this species.

In addition to the core population areas, there are seven outlying or isolated occurrences of the Riverside fairy shrimp. These occurrences may represent unique populations of the Riverside fairy shrimp. Each of these isolated occurrences is greater than 10 mi (16 km) from the other known Riverside fairy shrimp locations. These populations may have genetic characteristics that will allow the species to adapt to changing environmental conditions and give the species an opportunity to colonize or recolonize potential habitat, therefore, they are essential to the overall longterm conservation of the species (i.e., they may be genetically different from more centrally located populations) (Gilpin and Soule 1986; Lesica and Allendorf 1995). The specific essential habitat is explained in greater detail below in the Unit Descriptions.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to designate as critical habitat, we consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species, and that may require special management considerations or protection. These features are used for all listed species and include, but are not limited to: space for individual and population growth and for normal behavior; food, water, or other nutritional or physiological requirements; cover or shelter; sites for breeding and reproduction; and habitats that are protected from disturbance or are representative of the historic and geographical and ecological distributions of a species.

The specific biological and physical features, otherwise referred to as the primary constituent elements, which comprise Riverside fairy shrimp habitat are based on specific components that provide for the essential biological components of the species as described below. Space for Individual and Population Growth, and for Normal Behavior

Riverside fairy shrimp are found in vernal pools and ephemeral wetlands that range in size and quality. Some pools, such as the smaller pools on Marine Corps Base, Camp Pendleton, have a surface area of only 300500 square feet (approximately 30 to 50 square meters) when filled. Other pools that support Riverside fairy shrimp are large when compared to the majority of southern California's vernal pools. For example, the vernal pool at Skunk Hollow has a surface area of approximately 33 ac (13 ha). Further, the associated watersheds of the vernal pools that support Riverside fairy shrimp vary significantly in size. The watershed associated with smaller pools in southern California may only be on the order of a few acres, whereas the watershed associated with the Skunk Hollow pool in western Riverside County is greater than 125 ac (50 ha).

Vernal pools generally occur in complexes. Vernal pool complexes are defined by two or more ephemeral or vernal pools in a larger watershed basin with adjacent upland habitat that together form a matrix of physical and ecological processes. To maintain highquality vernal pool ecosystems, all components of the matrix must be available and functioning (Service 1998). Most of the remaining pools that support the Riverside fairy shrimp are no longer in a pristine or undisturbed state, yet these pools and the associated matrix of upland habitat continue to provide essential biological and physical features necessary for the conservation of this species. In many of these areas it will be possible to improve the conditions for Riverside fairy shrimp; however, irreversible actions that alter the hydrology of vernal pool ecosystems or infringe on the pool basins threaten the survival of this species.

Water and Physiological Requirements

Temperature, water chemistry, and length of time vernal pools are inundated with water are important factors that effect and potentially limit the distribution of the Riverside fairy shrimp. The water in the pools that support Riverside fairy shrimp typically has low total dissolved solids and alkalinity (means of 77 and 65 milligrams per liter (mg/l) or parts per million (ppm), respectively), corroborated by pH at neutral or just below (6.47.1) (Eng et al. 1990; Gonzalez et al. 1996; Eriksen and Belk 1999). Riverside fairy shrimp have been shown to tightly regulate their internal body chemistry for pool environments that have low salinity and low alkalinity (Gonzalez et al. 1996). In a laboratory experiment, Riverside fairy shrimp had difficulty regulating their body chemistry in conditions with concentrations of Sodium ion (Na+) greater than 60 millimoles per liter (mmol/l) (1,380 mg/l) and did not survive in conditions with concentrations higher than 100 mmol/ l (2,300 mg/l) (Gonzalez et al. 1996). These same experiments also found that Riverside fairy shrimp could not survive in laboratory environments where external alkalinity was higher than 800 to 1,000 mg/ l HCO3. Riverside fairy shrimp is found in water temperatures ranging between 50 and 77 degrees Fahrenheit (10 and 25 degrees Celsius) (Hathaway and Simovich 1996). Water within pools supporting fairy shrimp may be clear, but more commonly it is moderately turbid (Eriksen and Belk 1999).

Sites for Breeding, Reproduction and Rearing of Offspring

The Riverside fairy shrimp is restricted to a small subset of long lasting vernal pools and ephemeral wetlands in southern California because this animal takes approximately two months to mature and reproduce (Hathaway and Simovich 1996). In contrast, the San Diego fairy shrimp, another federally endangered fairy shrimp species found in southern
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California, can mature and reproduce in less than one month. Most vernal pools in southern California do not pool for a sufficient amount of time to support the Riverside fairy shrimp. Pools that contain Riverside fairy shrimp usually accumulate water to a depth greater than 10 in (25 cm) and some pools that support this species fill to a depth of 5 to 10 feet (1.5 to 3 meters). In the years that Riverside fairy shrimp successfully reproduce, pools fill for 2 to 3 months and some pools have been reported to stay filled for up to 7 months. Riverside fairy shrimp can survive as cysts for multiple years; therefore, it is not necessary for ideal conditions to exist every year for this species to persist.

Vernal pool ecosystems are highly variable in the length of time pools remain filled, and the Riverside fairy shrimp has adapted to these conditions. One indication that Riverside fairy shrimp have adapted to a system where the conditions needed for success occur infrequently is the low percentage of total cysts that hatch each time a pool fills with water. Since only small percentages of Riverside fairy shrimp cysts hatch in any given year, if the pool dries before the species is able to mature and reproduce, there are still many more cysts left in the soil (cyst bank) that may hatch the next time the pool fills (Simovich and Hathaway 1997). Allowing conditions within the above physical parameters to occur on a naturally cyclic basis is essential to the conservation of the Riverside fairy shrimp. Following reproduction, newly produced cysts either fall to the bottom of the pool or are carried in the brood sac of the female until the pool dries or the female dies and sinks to the bottom of the pool (Eriksen and Belk 1999).
Disturbance, Protection, and the Historical Geographical Distributions

The majority of sites currently supporting the Riverside fairy shrimp have experienced disturbance, some more recently than others and some to a greater extent than others. The pools that support Riverside fairy shrimp are generally found in flat or moderately sloping areas. Many of the pools are in grassland habitats. As a consequence, these areas have been vulnerable to agriculture, cattle grazing, and offroad vehicle activity. For example, many of the pools that currently support Riverside fairy shrimp have been artificially deepened in the past by ranchers to provide water for stock animals (Hathaway and Simovich 1996). This species has only been studied since the late 1980s; therefore, the extent of its historical distribution is not well understood. Current estimates suggest that 90 to 97 percent of vernal pool habitat has been lost in southern California (Mattoni and Longcore 1997; Bauder and McMillan 1998; KeelerWolf et al. 1998; Service 1998). The conservation and subsequent protection of the few remaining occurrences of Riverside fairy shrimp are essential for its conservation (Service 1998). In some places where the Riverside fairy shrimp is found, such as on the Los Angeles coastal prairie, there were historically larger complexes of vernal pools that no longer exist (Mattoni and Longcore 1997). In other places, like Riverside County, there are multiple locations where the Riverside fairy shrimp may still be found. Because Riverside County has not yet been developed and fragmented to the same extent as Los Angeles County, the Service believes that new occurrences of the Riverside fairy shrimp may still be located in Riverside County.

Pursuant to our regulations, we are required to identify the known physical and biological features, i.e., primary constituent elements, essential to the conservation of the Riverside fairy shrimp, together with a description of any critical habitat that is proposed. In identifying the primary constituent elements, we used the best available scientific and commercial data available. The primary constituent elements determined essential to the conservation of Riverside fairy shrimp are:

1. Small to large pools or pool complexes that have the appropriate temperature, water chemistry, and length of time of inundation with water necessary for Riverside fairy shrimp incubation and reproduction, as well as dry periods necessary to provide the conditions to maintain a dormant and viable cyst bank. Specifically, the conditions necessary to allow for successful reproduction of Riverside fairy shrimp fall within the following ranges:

a. Moderate to deep depths ranging from 10 in (25 cm) to 5 to 10 ft (1.5 to 3 m);

b. Ponding inundation that lasts for a minimum length of 2 months and a maximum length of 5 to 8 months, i.e., a sufficient wet period in winter and spring months to allow the Riverside fairy shrimp to hatch, mature, and reproduce, followed by a dry period prior to the next winter and spring rains;

c. Water temperature that falls within the range of 50 and 77 degrees Fahrenheit (10 and 25 degrees Celsius); and

d. Water chemistry with low total dissolved solids and alkalinity (means of 77 and 65 parts per million, respectively), corroborated by pH within a range of 6.47.1.

2. Associated watersheds that provide water to fill the pools in the winter and spring months. The size of the associated watershed varies greatly and cannot be generalized and has been assessed on a casebycase basis. Factors that affect the size of the watershed include surface and underground hydrology, the topography of the area surrounding the pool or pools, the vegetative coverage, and the soil substrate in the area. Watershed sizes designated vary from a few acres to greater than 100 ac (40 ha).

3. Any soil type with a clay component and/or an impermeable surface or subsurface layer known to support vernal pool habitat.

The matrix of vernal pools/ephemeral wetlands, the associated watershed, upland habitats, and underlying soil substrates form hydrological and ecologically functional units. These features and the lands that they represent are essential to the conservation of the Riverside fairy shrimp. All lands identified as essential and proposed as critical habitat contain one or more of the primary constituent elements for the Riverside fairy shrimp.

Special Management Considerations or Protection

As we undertake the process of designating critical habitat for a species, we first evaluate lands defined by those physical and biological features essential to the conservation of the species for inclusion in the designation pursuant to section 3(5)(A) of the Act. Secondly, we then evaluate lands defined by those features to assess whether they may require special management considerations or protection. As discussed throughout this proposed rule, our previous final designation of critical habitat for the Riverside fairy shrimp (66 FR 29384, May 30, 2001) and in our final recovery plan for the species (Service 1998), the Riverside fairy shrimp and its habitat are threatened by a multitude of factors. Threats to those features that define essential habitat (primary constituent elements) are caused by changes in the hydrology of the vernal pools and their associated watersheds; disturbance to the flora, fauna, and soil in and around the vernal pools; and the invasion of exotic plant and animal species into the vernal pool basin. Habitat loss continues to be the greatest threat to Riverside fairy shrimp. It is essential for the survival of this species to protect those features that define the remaining essential habitat, through purchase or
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special management plans, from irreversible threats and habitat conversion.

Changes in hydrology which affect vernal pools or pool complexes are caused by activities that alter the topography or change historical water flow patterns in the watershed. Even slight alterations of the hydrology can change the ponding duration of a pool, which in turn can make the habitat unsuitable for Riverside fairy shrimp. Activities that impact the hydrology include but are not limited to road building, grading and earth moving, impounding natural water flows, and draining of the pool(s). Impacts to the hydrology of vernal pools can be managed through avoidance of such activities in and around the pools and the associated watershed.

Disturbance to the flora, fauna, and soil in and around vernal pools that contain Riverside fairy shrimp can impact the long term sustainability of ecosystems used by Riverside fairy shrimp. Physical disturbances to pools are caused by offroad vehicle traffic, military training activities, agricultural activities, and cattle grazing. These impacts can be ameliorated by educating landowners and managers about the location and value of these resources and requesting that they protect these resources.

Invasive exotic plant and animal species impact Riverside fairy shrimp directly and indirectly. Bullfrogs and African clawed frogs have been reported from some of the pools where Riverside fairy shrimp is found. These exotic amphibians may eat Riverside fairy shrimp. Exotic plant species, such as brassbuttons (Cotula coronopifolia) and Pacific bentgrass (Agrostis avenaceae), compete with native vernal plant species. Conflicts with exotic species can be managed by removal techniques that do not negatively impact the native species in the vernal pools.

Threats to the features that define habitat essential to the conservation of the Riverside fairy shrimp should be assessed for each site. Sites should be protected from activities that negatively alter or destroy vernal pools. An appropriate management and monitoring plan should address these threats. A potential strategy with appropriate guidelines for the conservation of Riverside fairy shrimp has been elaborated in the Recovery Plan for Vernal Pools of Southern California (Service 1998). As such, we believe that within each area proposed for designation as critical habitat the physical and biological features essential for the conservation of the Riverside fairy shrimp may require some level of management and/or protection to address the current and future threats to the Riverside fairy shrimp and habitat essential to its conservation to ensure the overall recovery of the species.

Methods

In determining areas that are essential to conserve the Riverside fairy shrimp, we used the best scientific and commercial data available. These included data from research and survey observations published in peerreviewed articles, recovery criteria outlined in the Recovery Plan (Service 1998), regional Geographic Information System (GIS) vegetation, soil, and species coverages (including layers for Ventura, Los Angeles, Orange, Riverside, and San Diego Counties), data compiled in the California Natural Diversity Database (CNDDB), data collected on MCAS, Miramar, and Camp Pendleton, information, data and analysis used to develop regional Habitat Conservation Plans (HCPs), and data collected from reports submitted by biologists holding section 10(a)(1)(A) recovery permits. In addition, information provided in comments on the proposed designation and draft economic analysis will be evaluated and considered in the development of the final designation for Riverside fairy shrimp.

As stated earlier, Riverside fairy shrimp occur in ephemeral pools and ponds that may not be present throughout a given year or from year to year. Proposed critical habitat includes a mosaic of vernal pools, ponds, and depressions currently supporting Riverside fairy shrimp and vernal pool vegetation. The proposed critical habitat also includes the upland areas surrounding these ephemeral wetlands that constitute the microwatersheds for the pools. Vernal pool topography is such that the vernal pool fills directly from rain fall or in other cases the topography is such that the pool forms through the subsurface or overland waterflow from the surrounding watershed. Two specific areas have been included in this critical habitat proposal that occur within the geographical area occupied by the species, but have not had focused surveys for Riverside fairy shrimp conducted in them. One of these areas is in Ventura County at a pool referred to as Southeast Tierra Rejada pool; the other is in Riverside County on Santa Rosa Plateau. Both of these locations are essential to the conservation of the Riverside fairy shrimp because they contain the primary constituent elements and occur in areas where the known occurrences of Riverside fairy shrimp are extremely limited. Vernal pools at these locations retain water for sufficient amounts of time to allow for the reproduction of Riverside fairy shrimp. These pools also have rare plants that are associated with known locations of Riverside fairy shrimp. The preservation of both of these areas will provide habitat essential to the conservation of Riverside fairy shrimp, and the persistence of healthy populations of Riverside fairy shrimp in these areas is identified in Vernal Pool Recovery Plan.

After all the information about the known occurrences of Riverside fairy shrimp was compiled, we created maps indicating the essential habitat associated with each of the occurrences. We used the information outlined above to aid in this task. The essential habitat was mapped using GIS and refined using topographical and aerial map coverages. To accomplish this, we first identified and mapped vernal pool basins and ephemeral wetlands supporting the Riverside fairy shrimp that contained the primary constituent elements for the species. Next, based on topographic features such as ridges, mima mounds, and elevational gradients or slopes, the essential watershed associated with the vernal pool basins and ephemeral wetlands that also contained the primary constituent elements for the Riverside fairy shrimp were then mapped. The combined extent of these mapped areas was defined as the essential habitat for the Riverside fairy shrimp. Whenever possible, areas not containing the primary constituent elements, such as developed areas or open water, were not included in the boundaries of proposed critical habitat. However, our smallest unit of mapping is a 100meter square, so it was not always possible to avoid these areas.

After creating a GIS coverage of the essential areas, we described the boundaries of the essential areas using a 100meter grid to establish Universal Transverse Mercator (UTM) North American Datum 27 (NAD 27). The areas were then analyzed with respect to sections 4(a)(3), and 4(b)(2) of the Act, and any applicable and appropriate exclusions were made. The remaining essential areas are the proposed critical habitat. The essential areas, an elaboration on exclusions, and the specific areas proposed for critical habitat are described below. The proposed designation of critical habitat is presented as six different habitat units.
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Relationship to Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data available after taking into consideration the economic impact, the effect on national security, and any other relevant impact of specifying any particular area as critical habitat. An area may be excluded from critical habitat if we determine, following an analysis, that the benefits of such exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. Consequently, we may exclude an area from designated critical habitat based on economic impacts, the effect on national security, or other relevant impacts such as preservation of conservation partnerships, if we determine that the benefits of excluding an area from critical habitat outweigh the benefits of including the area in critical habitat, provided the action of excluding the area will not result in the extinction of the species.

In our critical habitat designations, we have used the provisions outlined in section 4(b)(2) of the Act to evaluate those specific areas that are proposed for designation as critical habitat and those areas which are subsequently finalized (i.e., designated). We have applied the provisions of this section of the Act to lands essential to the conservation of the subject species to evaluate them and either exclude them from final critical habitat or not include them in proposed critical habitat. Lands which we have either excluded from or not included in critical habitat based on those provisions include those covered by: (1) Legally operative HCPs that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (2) draft HCPs that cover the species, have undergone public review and comment, and provide assurances that the conservation measures for the species will be implemented and effective (i.e., pending HCPs); (3) Tribal conservation plans that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (4) State conservation plans that provide assurances that the conservation measures for the species will be implemented and effective; and (5) Service National Wildlife Refuge System Comprehensive Conservation Plans that provide assurances that the conservation measures for the species will be implemented and effective.
Relationship of Critical Habitat to Approved Habitat Conservation Plans Regional HCPs

As described above, section 4(b)(2) of the Act requires us to consider other relevant impacts, in addition to economic and national security impacts, when designating critical habitat. Section 10(a)(1)(B) of the Act authorizes us to issue permits for the take of listed wildlife species incidental to otherwise lawful activities. Development of an HCP is a prerequisite for the issuance of an incidental take permit pursuant to section 10(a)(1)(B) of the Act. An incidental take permit application must be supported by an HCP that identifies conservation measures that the permittee agrees to implement for the species to minimize and mitigate the impacts of the permitted incidental take.

HCPs vary in size and may provide for incidental take coverage and conservation management for one or many federally listed species. Additionally, more than one applicant may participate in the development and implementation of an HCP. Some areas occupied by the Riverside fairy shrimp involve complex HCPs that address multiple species, cover large areas, and have many participating permittees. Large regional HCPs expand upon the basic requirements set forth in section 10(a)(1)(B) of the Act because they reflect a voluntary, cooperative approach to largescale habitat and species conservation planning. Many of the large regional HCPs in southern California have been, or are being, developed to provide for the conservation of numerous federally listed species and unlisted sensitive species and the habitat that provides for their biological needs. These HCPs address impacts in a planning area and create a preserve design within the planning area. Over time, areas in the planning area are developed according to the HCP, and the area within the preserve is acquired, managed, and monitored. These HCPs are designed to implement conservation actions to address future projects that are anticipated to occur within the planning area of the HCP, in order to reduce delays in the permitting process. The amount of land in the planning area and preserves for the HCPs in the vicinity of known Riverside fairy shrimp occurrences are presented in Table 1.
Table 1.Habitat Conservation Plans (HCPs) Areas Within the General Area of the Proposed Critical Habitat
HCP Planning area Preserve area San Diego Multiple Species 582,000 ac 171,000 ac (69,573 Conservation Program (MSCP). (236,000 ha). ha)
CentralCoastal Orange County 208,713 ac (84,463 38,738 ac (15,677 NCCP/HCP. ha). ha)
Proposed Northwestern San Diego 111,908 ac (45,287 19,928 ac (8,064 Multiple Habitat Conservation ha). ha)
Program (MHCP).
Proposed Southern Subregion NCCP/ 128,000 ac (51,800 14,000 ac (5,666 HCP Orange County. ha). ha)
Proposed Western Riverside 1.3 million ac 153,000 ac (61,919 Multiple Species Habitat (530,000 ha). ha)

Conservation Plan (MSHCP).

In the case of approved regional HCPs (e.g., those sponsored by cities, counties or other local jurisdictions) that provide for incidental take coverage for the Riverside fairy shrimp, a primary goal is to provide for the protection and management of habitat essential for the conservation of the species while directing development to nonessential areas. The regional HCP development process provides an opportunity for more intensive data collection and analysis regarding the use of particular habitat areas by the Riverside fairy shrimp. The process also enables us to construct a system habitat that provides for the biological needs and longterm conservation of the species.

Completed HCPs and their accompanying Implementing Agreements (IA) contain management measures and protections for identified preserve areas that protect, restore, and enhance the value of these lands as habitat for the Riverside fairy shrimp. These measures include explicit standards to minimize any impacts to the covered species and its habitat. In general, HCPs are designed to ensure that the value of the conservation lands
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are maintained, expanded, and improved for the species that they cover.

In approving these HCPs, the Service has provided assurances to permit holders that once the protection and management required under the plans are in place and for as long as the permit holders are fulfilling their obligations under the plans, no additional mitigation in the form of land or financial compensation will be required of the permit holders and, in some cases, specified third parties. Similar assurances will be extended to future permit holders in accordance with the Service's HCP Assurance (``No Surprises'') rule codified at 50 CFR 17.22(b)(5) and (6) and 17.32(b)(5) and (6).

Portions of two proposed critical habitat units (Units 2 and 5) warrant exclusion from the proposed designation of critical habitat under section 4(b)(2) of the Act based on the special management considerations and protections afforded the Riverside fairy shrimp habitat through approved and legally operative HCPs or NCCP/HCPs. We believe that in most instances, the benefits of excluding legally operative HCPs from the proposed critical habitat designations will outweigh the benefits of including them. The following represents our rationale for excluding portions of Units 2 and 5 from the proposed critical habitat.

A single subunit of Unit 2 is excluded from proposed critical habitat because it is within the CentralCoastal NCCP/HCP in Orange County. The CentralCoastal NCCP/HCP in Orange County was developed in cooperation with numerous local and State jurisdictions and agencies and participating landowners, including the cities of Anaheim, Costa Mesa, Irvine, Orange, San Juan Capistrano; Southern California Edison; Transportation Corridor Agencies; The Irvine Company; California Department of Parks and Recreation; Metropolitan Water District of Southern California; and the County of Orange. Approved in 1996, the CentralCoastal NCCP/HCP provides for the establishment of
approximately 38,738 ac (15,677 ha) of reserve lands for 39 Federalor Statelisted and unlisted sensitive species within the 208,713 ac (84,463 ha) planning area. We issued an incidental take permit under section 10(a)(1)(B) of the Act that provides conditional incidental take authorization for the Riverside fairy shrimp for all areas within the CentralCoastal Subregion except the North Ranch Policy Plan area.

Portions of Unit 5 are excluded from proposed critical habitat because they are within the San Diego MSCP in southwestern San Diego County. The San Diego MSCP effort encompasses more than 582,000 ac (236,000 ha) and reflects the cooperative efforts of the local jurisdictions, the State, the building industry, and environmentalists. The San Diego MSCP provides for the establishment over the permit term of approximately 171,000 ac (69,573 ha) of preserve areas to provide conservation benefits for 85 federally listed and sensitive species. The San Diego MSCP and its approved subarea plans provide measures to conserve known Riverside fairy shrimp populations on Otay Mesa. In addition, surveys for Riverside fairy shrimp are required in suitable habitat (i.e., vernal pools, ephemeral wetlands, and seasonally ponded areas). These lands are to be permanently maintained and managed for the benefit of the Riverside fairy shrimp and other covered species: however, ``take'' of Riverside fairy shrimp is not included in the MSCP 10(a)(1)(B) permit. The eastern portion of Otay Mesa includes Major and Minor Amendment Areas. These areas require a special permitting process; therefore, we included them in this critical habitat proposal.

There are currently several other regional NCCP/HCP efforts under way in southern California that have not yet been completed but which, upon approval, will provide conservation benefits to the Riverside fairy shrimp (see Table 1). Lands within these HCPs, which are in various stages of formulation, are not excluded from consideration for proposed critical habitat. The Multiple Habitat Conservation Program (MHCP) in northwestern San Diego County encompasses approximately 112,000 ac (45,324 ha) within the study area. Currently, seven cities are participating in the development of the MHCP. Coverage for the Riverside fairy shrimp has not yet been determined for this plan and, therefore, we propose critical habitat within the planning area. In addition, the majority of vernal pool habitat supporting Riverside fairy shrimp in the planning area is located on land owned by the North County Transit District. The proposed Southern Subregion NCCP/HCP in Orange County encompasses approximately 128,000 ac (51,799 ha) in its planning area. Jurisdictions and private landowners within the study area include the cities of Rancho Santa Margarita, Mission Viejo, San Juan Capistrano, San Clemente, and Rancho Mission Viejo. The Riverside fairy shrimp is being proposed as one of the species covered under this plan. The early versions of this plan convey the importance of conservation of all known occurrences of the Riverside fairy shrimp. The Western Riverside MSHCP is addressed in a separate discussion because the plan is in its final stages of completion.

(1) Benefits of Inclusion

The principal benefit of any designated critical habitat is that federally funded or authorized activities in such habitat may require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid adverse modification of critical habitat. Where HCPs are in place, our experience indicates that this benefit is small or nonexistent. Currently approved and permitted HCPs and NCCP/HCPs are designed to ensure the longterm survival of covered species within the plan area. In an approved HCP or NCCP/HCP, lands that we ordinarily would define as critical habitat for covered species will normally be protected in reserves and other conservation lands by the terms of the HCP or NCCP/HCP and its Implementing Agreement (IA). These HCPs or NCCP/HCPs and IAs include management measures and protections for conservation lands designed to protect, restore, and enhance their value as habitat for covered species and thus provide benefits to the species well in excess of those that would result from a critical habitat designation. (2) Benefits of Exclusion

The benefits of excluding lands within HCPs from critical habitat designation include carrying out the assurances provided by the Service to landowners, communities, and counties in return for their voluntary adoption of the HCP, including relieving them of the additional regulatory burden that might be imposed by critical habitat. Many HCPs, particularly large regional HCPs, take many years to develop and, upon completion, become regional conservation plans that are consistent with the recovery objectives for listed species that are covered within the plan area. Additionally, many of these HCPs provide conservation benefits to unlisted, sensitive species. Imposing an additional regulatory review after an HCP is completed solely as a result of the designation of critical habitat may undermine conservation efforts and partnerships in many areas. In fact, it could result in the loss of species' benefits if participants abandon the voluntary HCP process because it may result in an additional regulatory burden requiring more of them than of
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other parties who have not voluntarily participated in species conservation. Designation of critical habitat within the boundaries of approved HCPs it is likely to be viewed as a disincentive to those entities currently developing HCPs or contemplating them in the future.

A related benefit of excluding lands within HCPs from critical habitat designation is the unhindered, continued ability to seek new partnerships with future HCP participants, including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. If lands within HCP plan areas are designated as critical habitat, it would likely have a negative effect on our ability to establish new partnerships to develop HCPs. By preemptively excluding these lands, we preserve our current partnerships and encourage additional conservation actions in the future.

Furthermore, an HCP or NCCP/HCP application must itself be consulted upon. While this consultation will not look specifically at the issue of adverse modification to critical habitat, unless critical habitat has already been designated within the proposed plan area, it will determine if the HCP jeopardizes the species in the plan area. In addition, Federal actions not covered by the HCP in areas occupied by listed species would still require consultation under section 7 of the Act. HCPs and NCCP/HCPs typically provide for greater conservation benefits to a covered species than section 7 consultations because HCPs and NCCP/HCPs assure the longterm protection and management of a covered species and its habitat, and funding for such management through the standards found in the 5 Point Policy for HCPs (64 FR 35242) and the HCP ``No Surprises'' regulation (63 FR 8859). Such assurances are typically not provided by section 7 consultations which, in accordance with the provisions of the Act, are limited to requiring that the specific action being consulted upon not jeopardize the continued existence of the species. Thus, a consultation typically does not accord the lands it covers the extensive benefits an HCP or NCCP/ HCP provides. The development and implementation of HCPs or NCCP/HCPs provide other important conservation benefits, including the development of biological information to guide the conservation efforts and assist in species conservation, and the creation of innovative solutions to conserve species while allowing for development. (3) Benefits of Exclusion Outweigh the Benefits of Inclusion

We have reviewed and evaluated HCPs and NCCP/HCPs currently approved and implemented within the areas being proposed as critical habitat for the Riverside fairy shrimp. Based on this evaluation, we find that the benefits of exclusion outweigh the benefits of proposing portions of Units 2 and 6 as critical habitat.

The San Diego MSCP in southwestern San Diego County and the CentralCoastal NCCP/HCP in Orange County include the Riverside fairy shrimp as a covered species. These HCP and NCCP/HCPs provide protection for the Riverside fairy shrimp and its associated habitat in perpetuity, although, in the San Diego MSCP, ``take'' of the Riverside fairy shrimp is handled through separate Section 7 consultations or HCP. The exclusion of these lands from critical habitat will help preserve the partnerships that we have developed with the local jurisdiction and project proponent in the development of the HCP and NCCP/HCP. The educational benefits of critical habitat, including informing the public of areas that are essential for the longterm survival and conservation of the species, is still accomplished from material provided on our website and through public notice and comment procedures required to establish an HCP or NCCP/HCP. The public has also been informed through the public participation that occurs in the development of many regional HCPs or NCCP/HCPs. For these reasons, we believe that proposing critical habitat has little benefit in areas covered by HCPs, provided that the HCP or NCCP/HCP specifically and adequately covers the species for which critical habitat is being proposed. We do not believe that this exclusion would result in the extinction of the species because the essential habitat within these two HCPs will ostensibly be conserved.
Relationship of Critical Habitat to the Draft Western Riverside Multiple Species Habitat Conservation Plan (MSHCP)

The Draft Western Riverside Multiple Species Habitat Conservation Plan (MSHCP) has been in development from 1993 to the present. Participants in this HCP include 14 cities; the County of Riverside, including the Riverside County Flood Control and Water Conservation Agency, Riverside County Transportation Commission, Riverside County Parks and Open Space District, Riverside County Waste Department; the California Department of Parks and Recreation; and the California Department of Transportation. The Western Riverside MSHCP is also being proposed as a subregional plan under the State's NCCP and is being developed in cooperation with the California Department of Fish and Game. Within the 1,260,000 ac (510,000 ha) planning area of the MSHCP, approximately 153,000 ac (62,000 ha) of diverse habitats are proposed for sole conservation uses. The proposed conservation of 153,000 ac (62,000 ha) will complement other existing natural and open space areas (e.g., State Parks, Forest Service, and County Park Lands).

The County of Riverside and the participating jurisdictions have signaled their sustained support for the Western Riverside MSHCP as evidenced by the November 5, 2002, passage of a local bond measure to fund the acquisition of land in support of the MSHCP. On November 15, 2002, a Notice of Availability of a Draft Environmental Impact Report (EIS/EIR) and Receipt of an Application for an Incidental Take Permit was published in the Federal Register (67 FR 69236). Public comment on these documents was accepted until January 14, 2003. Subsequently, on June 17, 2003, the County of Riverside Board of Supervisors voted unanimously to support the completion of the Western Riverside MSHCP.

Conservation actions within Western Riverside MSHCP planning area will be implemented to promote the longterm conservation of the Riverside fairy shrimp. Although the MSHCP is not yet completed and implemented, significant progress has been achieved in the development of this HCP, including the circulation of the final EIS/EIR, the solicitation of public review and comment, and intraService section 7 consultation has been initiated for the issuance of incidental take permit for those species identified for coverage within the draft plan. We are proposing to exclude portions of essential habitat in Riverside County from proposed critical habitat pursuant to section 4(b)(2) of the Act because they are within the planning area boundary for the proposed Western Riverside MSHCP. We are proposing portions of Unit 3 on Federal lands within the planning area boundary of the Western Riverside MSHCP as critical habitat because the activities of Federal agencies are not covered under a section 10(a)(1)(B) permit. Our analysis for excluding portions of Units 3 from proposed critical habitat has been outlined below.
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(1) Benefits of Inclusion

As stated previously, the benefits of designating critical habitat on lands within the boundaries of approved HCPs are small. The principal benefit of designating critical habitat is that federally authorized or funded activities that may affect a species' critical habitat would require consultation with us under section 7 of the Act which can prevent adverse modification or destruction of the habitat, but cannot compel positive management or restoration of the habitat for the benefit of the species. In the case of the proposed Western Riverside MSHCP, we must evaluate the impact of the plan on the species for which the participants are seeking incidental take permits, pursuant to section 7 of the Act.

(2) Benefits of Exclusion

Where HCPs are in place, the HCPs and their Implementing Agreements (IAs) include management measures and protections designed to protect, restore, monitor, manage, and enhance the habitat to benefit the conservation of the species. This includes actions for the Riverside fairy shrimp. The Western Riverside MSHCP seeks to accomplish these goals for the Riverside fairy shrimp through the implementation of speciesspecific conservation objectives. Excluding lands within Unit 3 from

FOR FURTHER INFORMATION CONTACT Field Supervisor, Carlsbad Fish and Wildlife Service (telephone 760/4319440; facsimile 760/4319618).