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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0013; 4500030114]

RIN 1018-AX15

Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Riverside Fairy Shrimp

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
SUMMARY: We, the U.S. Fish and Wildlife Service, revise the critical habitat for the Riverside fairy shrimp under the Endangered Species Act of 1973, as amended. The previous critical habitat consisted of land in four units in Ventura, Orange, and San Diego Counties, California. We now designate land in three units in Ventura, Orange, and San Diego Counties, California, for a total of approximately 1,724 ac (698 ha), which represents critical habitat for this species. Areas in Riverside County are excluded from critical habitat in this final revised rule.
DATES: This rule becomes effective on January 3, 2013.
ADDRESSES: This final rule and the associated final economic analysis are available on the Internet athttp://www.regulations.gov.Comments and materials received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment during normal business hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-5901.

The coordinates or plot points or both from which the maps for this critical habitat designation were generated are included in the administrative record and are available on our Internet site (http://www.fws.gov/carlsbad/), athttp://www.regulations.govat Docket No. FWS-R8-ES-2011-0013, and at the Carlsbad Fish and Wildlife Office (seeFOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information developed for this critical habitat designation is available at the Fish and Wildlife Service Web site and Field Office set out above, and may also be onhttp://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-5901. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION: Executive Summary

Why we need to publish a rule and the basis for our action.Under the Endangered Species Act (Act), any species that is determined to be endangered or threatened shall, to the maximum extent prudent and determinable, have habitat designated that is considered to be critical habitat. Designations and revisions of critical habitat can only be completed by issuing a rule. We listed Riverside fairy shrimp as an endangered species on August 3, 1993 (58 FR 41384). We published our first rule designating critical habitat on May 30, 2001 (66 FR 29384). In response to a settlement agreement, we revised critical habitat in a final rule published April 12, 2005 (70 FR 19154). That rule was also challenged in court, and based on the provisions of the new settlement agreement, we are publishing this final revised critical habitat rule.

The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for Riverside fairy shrimp. We are designating:

• Approximately 466 acres (ac) (189 hectares (ha)), in 2 subunits, as critical habitat in Ventura County.

• Approximately 396 ac (160 ha), in 4 subunits, as critical habitat in Orange County.

• Approximately 862 ac (348 ha), in 7 subunits, as critical habitat in San Diego County.

In total, we are designating approximately 1,724 ac (698 ha) as critical habitat for this species. We are also:

• Exempting 1,988 ac (804 ha) from critical habitat designation in Orange County and San Diego County.

• Excluding 1,259 ac (510 ha) from critical habitat designation in Orange County, Riverside County, and San Diego County.

We have prepared an economic analysis of the designation of critical habitat.We announced the availability of the draft economic analysis (DEA) on March 1, 2012 (77 FR 12543), allowing the public to provide comments on our analysis. We have incorporated the comments and completed the final economic analysis (FEA).

Peer reviewer and public comment.We sought comments from four independent specialists to ensure that our designation is based on scientifically sound data and analysis. We also considered all comments and information we received during the public comment periods.

Background

It is our intent to discuss in this final rule only those topics directly relevant to the revision of critical habitat for the Riverside fairy shrimp under the Act (16 U.S.C. 1531et seq.). For more information on the taxonomy, biology, and ecology of Riverside fairy shrimp, please refer to the final listing rule published in theFederal Registeron August 3, 1993 (58 FR 41384); the first and second rules proposing critical habitat published in theFederal Registeron September 21, 2000 (65 FR 57136), and April 27, 2004 (69 FR 23024), respectively; and the subsequent final critical habitat designations published in theFederal Registeron May 30, 2001 (66 FR 29384), and April 12, 2005 (70 FR 19154). Additionally, more species information can be found in the 1998 Recovery Plan for the Vernal Pools of Southern California (1998 Recovery Plan) finalized on September 3, 1998 (Service 1998a, pp. 1-113), in the City of San Diego's 2002-2003 Vernal Pool Inventory (City of San Diego 2004, pp. 1-125), and in the Riverside fairy shrimp 5-year review (Service 2008, pp. 1-57). For new information on Riverside fairy shrimp genetics across the species' range and on the status and distribution of Riverside fairy shrimp, see the most recent proposed critical habitat rule published on June 1, 2011 (76 FR 31686). Information on the associated draft economic analysis (DEA) for the proposed rule to designate revised critical habitat was published in theFederal Registeron March 1, 2012 (77 FR 12543).

Previous Federal Actions

The Riverside fairy shrimp was listed as an endangered species on August 3, 1993 (58 FR 41384). For a history of Federal actions prior to 2001, please refer to the September 21, 2000, proposed critical habitat rule (65 FR 57136). On May 30, 2001, we published a final rule designating critical habitat for the Riverside fairy shrimp (66 FR 29384). 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 U.S. District Court for the District of Columbia challenging thedesignation of Riverside fairy shrimp critical habitat and alleging errors in our promulgation of the May 30, 2001, final rule. We requested a voluntary remand, and on October 30, 2002, critical habitat for this species was vacated by order of the U.S. District Court for the District of Columbia, and the Service was ordered 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. 01-2311 (JDB) (U.S. District Court, District of Columbia)).

On April 27, 2004, we again proposed to designate critical habitat for the Riverside fairy shrimp (69 FR 23024). The final critical habitat rule was published in theFederal Registeron April 12, 2005 (70 FR 19154). On January 14, 2009, the Center for Biological Diversity filed a complaint in the U.S. District Court for the Southern District of California challenging our 2005 designation of critical habitat for Riverside fairy shrimp (Center for Biological Diversityv.U.S. Fish and Wildlife Service and Dirk Kempthorne, Secretary of the Interior,Case No. 3:09-CV-0050-MMA-AJB). A settlement agreement was reached with the plaintiffs (Case No. 3:09-cv-00051-JM-JMA; November 16, 2009) in which we agreed to submit a proposed revised critical habitat designation for the Riverside fairy shrimp to theFederal Registerby May 20, 2011, and submit a final revised critical habitat designation to theFederal Registerby November 15, 2012. The proposed revised critical habitat designation was delivered to theFederal Registeron May 20, 2011, and published on June 1, 2011 (76 FR 31686). This rule complies with the conditions of the settlement agreement.

Summary of Changes From Proposed Rule

(1) We added updated information on the general impacts of climate change and its potential impacts to Riverside fairy shrimp in theClimate Changesection of this document. We also performed a climate change analysis using software available through Climate Wizard, a web-based climate change prediction program jointly produced by The Nature Conservancy, the University of Washington, and University of Southern Mississippi. We incorporated the results of our analysis into theClimate Changesection of this rule.

(2) We added a discussion to theCriteria Used To Identify Critical Habitatsection to supplement our discussion in the proposed rule (76 FR 31686; June 1, 2011) and the March 1, 2012, publication that made available our DEA of the proposed rule (77 FR 12543) and to clarify the rationale for designation of critical habitat units. At the time of listing, we did not have surveys confirming the presence of Riverside fairy shrimp in each critical habitat unit and subunit. However, we confirm that the vernal pool complexes within each unit and subunit were in existence at the time of listing (with the exception of Subunit 3g (Johnson Ranch Created Pool)), and the units and subunits in which the vernal pool complexes are found are within the geographical area occupied by the species at the time of listing and contain the physical or biological features essential to the conservation of the species. Therefore, we consider Unit 1 (1a, 1b), Unit 2 (2c, 2dA, 2dB, 2e, 2f, 2g, 2h, 2i), Unit 3 (3c, 3d, 3e, 3f, 3h), Unit 4 (4c), and Unit 5 (5a, 5b, 5c, 5d, 5e, 5f, 5g, 5h) to meet the definition of critical habitat under section 3(5)(A)(i) of the Act (i.e., to be areas within the geographical area occupied by the Riverside fairy shrimp at the time of listing) for the reasons explained in the March 1, 2012, publication (77 FR 12543) despite the absence of proof of occupancy at the time of listing.

Regardless of the occupancy status (documented or presumed; pre- or post-listing) of each unit, in Table 1 of the March 1, 2012, publication (77 FR 12543), we provided our justification for determining why these areas are essential for the conservation of the species under section 3(5)(A)(ii) of the Act. For those units for which we lack data confirming occupancy at the time of listing, we are alternatively designating them under section 3(5)(A)(ii) because they are essential for the conservation of Riverside fairy shrimp and a designation limited to areas confirmed to be occupied at the time of listing would be inadequate to ensure the conservation of the species. We provide further explanation of our method and rationale for defining critical habitat boundaries in theCriteria Used To Identify Critical Habitatsection below.

(3) Based on a public comment, we updated the name of the vernal pool complex at Marine Corps Air Station (MCAS) Miramar from “AA 1-7, 9-13 East Miramar (Pool 10) (AA1 East)” to its recommended name “East Miramar (AA1 South + Group) (Pool 4786; previously Pool 12).”

(4) In the proposed revised critical habitat rule, Table 4 incorrectly identified 6 ac (3 ha) of land in Subunit 4c as State-owned. The land is actually owned by the North [San Diego] County Transit District. Table 3 in this final revised rule has been updated to show the correct land ownership.

(5) We are now excluding lands owned by the Department of Homeland Security (DHS) in Subunit 5b (29 ac (12 ha)) and a portion of the lands in Subunit 5h (11 ac (4 ha)) from this final critical habitat designation based on national security. This exclusion is consistent with the exclusion of DHS lands in our previous final critical habitat rule published April 12, 2005 (70 FR 19154), due to national security concerns related to the operation and maintenance of the Border Infrastructure System (BIS).

In our proposed revised critical habitat rule published June 1, 2011 (76 FR 31686), we sought comments on whether or not these Federal lands should be considered for exclusion under section 4(b)(2) of the Act for national security reasons, whether such exclusion is or is not appropriate, and whether the benefits of excluding any specific area outweigh the benefits of including that area as critical habitat and why. On October 16, 2012, DHS commented that designation of these lands could interfere with U.S. Customs and Border Patrol Protection activities along the border and urged exclusion of the lands for national security reasons. Based on the national security importance of DHS maintaining access to these border areas, the Secretary is exercising his discretion to exclude lands owned by DHS in this final critical habitat rule. Details on our rationale can be found in the “Exclusions Based on National Security Impacts” section below.

(6) In the June 1, 2011, proposed revised rule, we stated that we were considering excluding lands owned by or under the jurisdiction of the Orange County Central-Coastal Natural Community Conservation Plan/Habitat Conservation Plan (NCCP/HCP), the Orange County Southern Subregion HCP, the Western Riverside County MSHCP, City of Carlsbad Habitat Management Plan (HMP) under the San Diego Multiple Habitat Conservation Program (MHCP), and County of San Diego Subarea Plan under the MSCP. We have now made a final determination that the benefits of exclusion outweigh the benefits of inclusion of lands covered by these plans. Therefore, the Secretary is exercising his discretion to exclude approximately 89 ac (36 ha) covered by the Orange County Central-Coastal NCCP/HCP, 233 ac (94 ha) covered by the Orange County Southern SubregionHCP, 865 ac (350 ha) covered by the Western Riverside County MSHCP, 9 ac (4 ha) covered by the City of Carlsbad HMP, and 23 ha (9 ac) covered by the County of San Diego Subarea Plan under the MSCP. In all, the Secretary is exercising his discretion to exclude a total of 1,259 ac (510 ha). For a complete discussion of the benefits of inclusion and exclusion, see the Exclusions section below.

Table 1—Subunit Occupancy Status and Justifications for Determining Specific Areas Essential for the Conservation of Riverside Fairy Shrimp1 Unit/subunit2 Service status at
  • listing3
  • Current status4; year of first record5 Act section 3(5)(A)(i) justification6 Act section 3(5)(A)(ii) justification7
    Ventura County 1a: Tierra Rejada Preserve Presumed occupied Occupied; 1998 (CNDDB, EO 9) Primary Constituent Elements (PCEs) 1-3; may require management Necessary to stabilize Riverside fairy shrimp populations per Recovery Plan (RP); possesses unique soils and habitat type; disjunct population maintains genetic diversity and population stability at species' northernmost distribution. 1b: South of Tierra Rejada Valley Presumed occupied Presumed occupied; no protocol surveys have been completed PCEs 1-3; may require management Provides appropriate inundation ponding; proximity and connectivity to 1a at northern distribution; protects existing vernal pool composition; ecological linkage. Orange County 2c: MCAS El Toro Confirmed occupied Occupied; 1993 (Service 1993, MCAS El Toro survey) PCEs 1-3; may require management. 2dA: Saddleback Meadow Presumed occupied Occupied; 1997 (HELIX 2009 Report #10537) PCEs 1-3; may require management Necessary to stabilize populations per RP; maintains current geographical, elevational, and ecological distribution; maintains current population structure; provides connectivity; large continuous block; ecological linkage. 2dB: O'Neil Regional Park (near Trabuco Canyon) Presumed occupied Occupied; 2001 (CNDDB, EO 17) PCEs 1-3; may require management Maintains current geographical, elevational, and ecological distribution; maintains current population structure; provides connectivity. 2e: O'Neil Regional Park (near Cañada Gobernadora) Presumed occupied Occupied; 1997 (CNDDB, EO 4) PCEs 1-3; may require management Maintains current geographical, elevational, and ecological distribution; maintains current population structure; provides connectivity. 2f: Chiquita Ridge Presumed occupied Occupied; 1997 (CNDDB, EO 5) PCEs 1-3; may require management Necessary to stabilize populations per RP; maintains current geographical, elevational, and ecological distribution; maintains current population structure; provides connectivity. 2g: Radio Tower Road Presumed occupied Occupied; 2001 (CNDDB, EO 15, 16) PCEs 1-3; may require management Maintains current geographical, elevational, and ecological distribution; maintains current population structure; provides connectivity. 2h: San Onofre State Beach, State Park leased land Presumed occupied Occupied; 1997 (CNDDB, EO 6) PCEs 1-3; may require management Unique soils and wetland type; maintains habitat function, genetic diversity, and species viability; ecological linkage. 2i: SCE Viejo Conservation Bank Presumed occupied Occupied; 1998 (CNDDB, EO 10) PCEs 1-3; may require management Maintains current geographical, elevational, and ecological distribution; maintains current population structure; provides connectivity. Riverside County 3c: Australia Pool Presumed occupied Occupied; 1998 (CNDDB, EO 11) PCEs 1-3; may require management Maintains habitat function, genetic diversity, and species viability; ecological linkage. 3d: Scott Road Pool Presumed occupied Occupied; 2002 (CNDDB, EO 24) PCEs 1-3; may require management Maintains current geographical, elevational, and ecological distribution; disjunct habitat. 3e: Schleuniger Pool Presumed occupied Occupied; 1998 (CNDDB, EO 8) PCEs 1-3; may require management Maintains current geographical, elevational, and ecological distribution. 3f: Skunk Hollow and Field Pool Confirmed occupied Skunk Hollow: Occupied; 1988 (CNDDB, EO 3). Field Pool: Occupied; 1988 (Service, GIS ID 9) PCEs 1-3; may require management. 3g: Johnson Ranch Created Pool Created (in 2002) Occupied; 2003 (Service, GIS ID 13) PCEs 1-3; may require management Provides connectivity among pools; maintains current population structure. 3h: Santa Rosa Plateau-Mesa de Colorado Presumed occupied Occupied; 2009 (Selheim and Searcy 2010, Report # 11005) PCEs 1-3; may require management Necessary to stabilize populations per RP; unique soils and habitat type; large continuous blocks of occupied habitat; ecological linkage. San Diego County 4c: Poinsettia Lane Commuter Train Station (JJ2) Presumed occupied Occupied; 1998 (CNDDB, EO 7) PCEs 1-3; may require management Necessary to stabilize populations per RP; unique soils and habitat type; disjunct habitat; provides protection for existing vernal pool composition and structure. 5a: J33 (Sweetwater High School) Presumed occupied Occupied; 2003 (City of San Diego 2004) PCEs 1-3; may require management Maintains current population structure; genetic diversity. 5b: J15 (Arnie's Point) Presumed occupied Occupied; 2006 (ERS, Report #8639) PCEs 1-3; may require management Necessary to stabilize populations per RP; maintains current population structure; ecological linkage. 5c: East Otay Mesa Presumed occupied Occupied; 2000 GIS ID 4; 2001 (EDAW 2001) (CNDDB, EO 25) PCEs 1-3; may require management Unique soils and habitat type; maintains current geographical, elevational, and ecological distribution; disjunct habitat; protects existing vernal pool composition. 5d: J29-31 Confirmed occupied Occupied; 1986 (Bauder 1986a); (Simovich and Fugate 1992) (CNDDB, EO 2) PCEs 1-3; may require management. 5e: J2 N, J4, J5 Presumed occupied Occupied; 2003 (City of San Diego, 2004) PCEs 1-3; may require management Necessary to stabilize populations per RP; provides connectivity among pools; maintains current population structure. 5f: J2 S and J2 W Presumed occupied Occupied; 2001 (CNDDB, EO 18) PCEs 1-3; may require management Necessary to stabilize populations per RP; provides connectivity among pools; maintains current population structure. 5g: J14 Presumed occupied Occupied; 2002 (HELIX 2002, Report #2386) PCEs 1-3; may require management Necessary to stabilize populations per RP; provides connectivity among pools; maintains current population structure. 5h: J11, J12, J16-18 Presumed occupied Occupied; 2002 (City of San Diego 2004) PCEs 1-3; may require management Necessary to stabilize populations per RP; provides connectivity among pools; maintains current population structure. 1As discussed above, we consider the areas for which we lack positive survey results to be “areas within the geographical area occupied by the species” under section 3(5)(A)(i) of the Act as explained in the March 1, 2012, publication at 77 FR 12543, pp. 12545-49. Table 1 summarizes the bases for that conclusion. However, we are alternatively designating areas that lack positive occupancy data at the time of listing under section 3(5)(A)(ii) of the Act because these areas are essential to the conservation of the species and a designation limited to known occupied areas would be inadequate to ensure the conservation of the species. 2Unit/Subunit name as it appears in Table 1 of proposed revised rule (76 FR 31698). For additional information, see the Recovery Plan (RP) for Vernal Pools of Southern California (Service 1998a, 113+ pp.). 3Service status: “Confirmed occupied” indicates that there is a record of occupancy at or before the time of listing; “Presumed occupied” indicates no documentation of occupancy for the specific areas (subunits) prior to 1993, but the areas are presumed to have been occupied at the time of listing based on best available science and post-1993 positive survey results in the possession of the Service. “Created” refers to a vernal pool enhancement or restoration after the time of listing. 4 5Current status: “Occupied” indicates a positive survey result documenting species occurrence and “Presumed occupied” indicates no protocol surveys have been completed. The listed year is the year of first record followed by source. EO (element occurrence) is the number assigned to that occurrence, as defined and described according to the California Natural Diversity Data Base (CNDDB 2011). GIS ID is the occurrence information number for multiple species within jurisdiction of the Carlsbad Fish and Wildlife Office (Service 2011). City of San Diego (2004) is from the “Vernal pool inventory 2002-2003” or Contractor, and Report # is the number from a section 10(A)(1)(a) survey report, available in Service files. 6Reasons determined essential to the conservation of the species, as defined according to criteria set forth in the proposed revised critical habitat rule, this document, and in section 3(5)(A)(i) of the Act, and based on current information on what we consider as the occupied geographic range of the species at the time of listing. 7Reasons determined essential for the conservation of the species, as defined according to criteria set forth in the proposed revised critical habitat rule, this document, in the Recovery Plan (Service 1998a, Appendix F, pp. F-1-F-5) and in section 3(5)(A)(ii) of the Act. An empty box in the “Act section 3(5)(A)(ii) justification” column indicates this subunit is not proposed under section 3(5)(A)(ii) of the Act, and was confirmed occupied at the time of listing (see footnote 3). * PCE: primary constituent element; SCE: Southern California Edison; GIS: geographic information system.
    Critical Habitat Background

    Critical habitat is defined in section 3 of the Act as:

    (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

    (a) Essential to the conservation of the species and

    (b) Which may require special management considerations or protection; and

    (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

    Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

    Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Only where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat would the consultation requirements of section 7(a)(2) of the Act apply.

    Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements (PCEs) such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. PCEs are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.

    Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.

    Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in theFederal Registeron July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

    When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

    Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

    Climate Change

    Our analyses under the Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). The term “climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007a, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007a, p. 78).

    Scientific measurements spanning several decades demonstrate that changes in climate are occurring, and that the rate of change has been faster since the 1950s. Examples include warming of the global climate system, and substantial increases in precipitation in some regions of the world and decreases in other regions. (For these and other examples, see IPCC 2007a, p. 30; and Solomonet al.2007, pp. 35-54, 82-85). Results of scientific analyses presented by the IPCC show that most of the observed increase in global average temperature since the mid-20th century cannot be explained by natural variability in climate, and is “very likely” (defined by the IPCC as 90 percent or higher probability) due to the observed increase in greenhouse gas (GHG) concentrations in the atmosphere as a result of human activities, particularly carbon dioxide emissions from use of fossil fuels (IPCC 2007a, pp. 5-6 and figures SPM.3 and SPM.4; Solomonet al.2007, pp. 21-35). Further confirmation of the role of GHGs comes from analyses by Huber and Knutti (2011, p. 4), who concluded it is extremely likely that approximately 75 percent of global warming since 1950 has been caused by human activities.

    Scientists use a variety of climate models, which include consideration of natural processes and variability, as well as various scenarios of potential levels and timing of GHG emissions, to evaluate the causes of changes already observed and to project future changes in temperature and other climate conditions (for example, Meehlet al.2007, entire; Gangulyet al.2009, pp. 11555, 15558; Prinnet al.2011, pp. 527, 529). All combinations of models and emissions scenarios yield very similar projections of increases in the most common measure of climate change, average global surface temperature (commonly known as global warming), until about 2030. Although projections of the magnitude and rate of warming differ after about 2030, the overall trajectory of all the projections is one of increased global warming through the end of this century, even for the projections based on scenarios that assume that GHG emissions will stabilize or decline. Thus, there is strong scientific support for projections that warming will continue through the 21st century, and that the magnitude and rate of change will be influenced substantially by the extent of GHG emissions (IPCC 2007a, pp. 44-45; Meehlet al.2007, pp. 760-764 and 797-811; Gangulyet al.2009, pp. 15555-15558; Prinnet al.2011, pp. 527, 529). (See IPCC 2007b, p. 8, for a summary of other global projections of climate-related changes, such as frequency of heat waves and changes in precipitation. Also see IPCC 2011(entire) for a summary of observations and projections of extreme climate events.)

    Various changes in climate may have direct or indirect effects on species. These effects may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as interactions of climate with other variables (for example, habitat fragmentation) (IPCC 2007b, pp. 8-14, 18-19). Identifying likely effects often involves aspects of climate change vulnerability analysis. Vulnerability refers to the degree to which a species (or system) is susceptible to, and unable to cope with, adverse effects of climate change, including climate variability and extremes. Vulnerability is a function of the type, magnitude, and rate of climate change and variation to which a species is exposed, its sensitivity, and its adaptive capacity (IPCC 2007a, p. 89; see also Glicket al.2011, pp. 19-22). There is no single method for conducting such analyses that applies to all situations (Glicket al.2011, p. 3). We use our expert judgment and appropriate analytical approaches to weigh relevant information, including uncertainty, in our consideration of various aspects of climate change.

    Global climate projections are informative, and, in some cases, the only or the best scientific information available for us to use. However, projected changes in climate and related impacts can vary substantially across and within different regions of the world (for example, IPCC 2007a, pp. 8-12). Therefore, we use “downscaled” projections when they are available and have been developed through appropriate scientific procedures, because such projections provide higher resolution information that is more relevant to spatial scales used for analyses of a given species (see Glicket al.2011, pp. 58-61, for a discussion of downscaling). The program Climate Wizard provides regional level projections of future climate patterns, using the World Climate Research Programme's (WCRP's) Coupled Model Intercomparison Project phase 3 (CMIP3) multi-model dataset (http://www.climatewizard.org/). These data project an average decrease of rainfall in coastal Southern California of approximately 5 percent by the year 2050.

    Documentation of climate-related changes that have already occurred in California (Crokeet al.1998, pp. 2128, 2130; Breshearset al.2005, p. 15144), and future drought predictions for California (for example, Fieldet al.1999, pp. 8-10; Lenihenet al.2003, p. 1667; Hayhoeet al.2004, p. 12422; Breshearset al.2005, p. 15144; Seageret al.2007, p. 1181) and North America (IPCC 2007a, p. 9), indicate prolonged drought and other climate-related changes will continue in the future. While climate change was not discussed in the 1993 listing rule, drought was noted in the rule as a stochastic (random or unpredictable) event that could have drastic effects on Riverside fairy shrimp, given its fragmented and restricted range (58 FR 41384, August 3, 1993, p. 41389; Service 1998a, p. 34). Local climate-related changes or drought-induced impacts that may negatively affect limited ephemeral wetland habitats include alterations in seasonal timing, ponding durations, or patterns of inundation and draw down (the drying period of a vernal pool). However, the magnitude and frequency of these factors remain untested.

    In southern California, climatic variables affecting vernal pool habitats are most influenced by distance from the coast, topography, and elevation (Bauder and McMillian 1998, p. 64). As presence and persistence of Riverside fairy shrimp appear to be associated with precipitation patterns, draw-down factors, and other regional climatic factors, including aridity (Eriksen and Belk 1999, p. 71), the likely impacts of climate change on ecological processes for Riverside fairy shrimp are most closely tied to availability and persistence of ponded water during the winter and spring. Vernal pools are particularly sensitive to slight increases in evaporation or reductions in rainfall due to their relative shallowness and seasonality (Fieldet al.1999, p. 19). Based on existing data, weather conditions in which vernal pool flooding promotes hatching, but pools become dry (or too warm) before embryos are fully developed, are expected to have the greatest negative impact on Riverside fairy shrimp resistance and resilience. In the 2008 5-year review, we noted that climate change may potentially cause changes in vernal pool inundation patterns and pool consistency, and that drought may decrease or terminate reproductive output if pools fail to flood or dry up before reproduction is complete (Service 1998a, p. 34). Long-term or continuing drought conditions may deplete cysts (eggs) or cyst banks in affected pools due to the lack of new reproductive cysts.

    Additionally, localized climate-related changes may alter the temporalspatial array of occupied habitat patches across the species' geographic range (in other words, the presence of Riverside fairy shrimp across and between pool complexes). The ability of Riverside fairy shrimp to survive is likely to depend in part on their ability to disperse to pools where conditions are suitable (Bohonak and Jenkins 2003, p. 786) through passive dispersal mechanisms utilizing reproductive cysts (see theLife Historysection in the proposed rule, published June 1, 2011 (76 FR 31686)).

    As discussed above, climate projections produced through Climate Wizard predict a decrease in annual rainfall by 2050. For a species that depends on long-term filling of vernal pools, any decrease in rainfall amount could affect the persistence of the species and the quality of available habitat. However, such projections are not straightforward, because filling of vernal pools may also depend on local watershed characteristics not directly related to annual rainfall. Additionally, the climate projections do not take storm events into account that could provide for filling of vernal pools. Therefore, designation of a wide variety of vernal pool habitat types is necessary to buffer against the projected future impacts of climate change. We find the designation herein provides for the array of habitat to provide for the conservation of the species.

    Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:

    (1) Space for individual and population growth and for normal behavior;

    (2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

    (3) Cover or shelter;

    (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

    (5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

    We derive the specific physical or biological features essential for the Riverside fairy shrimp from studies of this species' habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in theFederal Registeron June 1, 2011 (76 FR 31686), and in the information presented below. Additional information can be found in the final listing rule published in theFederal Registeron August 3, 1993 (58 FR 41384), and the 1998 Recovery Plan (Service 1998a). We have determined that the Riverside fairy shrimp requires the physical or biological features described below.

    Space for Individual and Population Growth and for Normal Behavior

    Riverside fairy shrimp require vernal pool habitat to grow and reproduce. Their life cycle requires periods of inundation as well as dry periods (Ripleyet al.2004, pp. 221-223). Habitats (ephemeral wetlands) that provide space for growth and persistence of Riverside fairy shrimp include areas that generally pond for 2 to 8 months and dry down for a period during the late spring to summer months. Habitats include natural and created pools (usually greater than 12 inches (in) (30 centimeters (cm)) deep) that support these longer inundation periods; some of these habitats are artificial pools (cattle watering holes and road embankments) that have been modified or deepened with berms (Hathaway and Simovich 1996, p. 670). Artificial depressions, often associated with degraded vernal pool habitat, are capable of functioning as habitat and can support vernal pool species, including Riverside fairy shrimp (Moran 1977, p. 155; Service 1998a, p. 22). Space for the Riverside fairy shrimp's normal growth and behavior requires an underlying soil series (typically clay soil inclusions with a subsurface claypan or hardpan component), which forms an impermeable layer that sustains appropriate inundation periods (water percolates slowly once filled) and provides necessary physiological requirements including, but not limited to, appropriate water temperature and water chemistry (mineral) regimes, a natural prey base, foraging opportunities, and areas for predator avoidance.

    Intact vernal pool hydrology (including the seasonal filling and drying down of pools) is the essential feature that governs the life cycle of the Riverside fairy shrimp. An intact hydrological regime includes seasonal hydration (during most but not all years) followed by drying out of the substrate to promote overwintering of cysts and provide conditions for a viable cyst bank for the following season. Proper timing of precipitation and the associated hydrological and soil processes in the upland watershed contribute to the provision of space for growth and normal behavior. Seasonal filling and persistence of the vernal pool are necessary for cyst hatching and successful reproduction of Riverside fairy shrimp (see “Sites for Breeding, Reproduction, and Rearing (or Development) of Offspring”, below).

    To maintain high-quality vernal pool ecosystems, the vernal pool basin (a specific vernal pool and surrounding landscape) or complex and its upslope watershed (adjacent vegetation and upland habitat) must be available and functional (Hanes and Stromberg 1998, p. 38). Adjacent upland habitat supplies important hydrological inputs to sustain vernal pool ecosystems. Protection of the upland habitat between vernal pools within the watershed is essential to maintain the space needs of Riverside fairy shrimp and to buffer the vernal pools from edge effects. Having the spatial needs that create pools of adequate depth also supports the temporal needs of Riverside fairy shrimp, as deep pools provide for inundation periods of adequate length to support the entire life-history function and reproductive cycles necessary for Riverside fairy shrimp.

    Vernal pools generally occur in complexes, which are defined as two or more vernal pools in the context of a larger vernal pool watershed. The local watershed associated with a vernal pool complex includes all surfaces in the surrounding area that flow into the vernal pool complex. Within a vernal pool complex, vernal pools are hydrologically connected to one another within the local geographical context. These vernal pool complexes may connect by either surface or subsurface flowing water. Pools and complexes are dependent on adjacent geomorphology and microtopography for maintenance of their unique hydrological conditions (Service 1998a, p. 23). Water may flow over the surface from one vernal pool to another (over-fill or overbanking), throughout a network of swales or low-point depressions within a watershed. Due to an impervious clay or hardpan layer, water can also flow and collect below ground, such that the soil remains saturated with water. The result of the movement of water through vernal pool systems is that pools fill and hold water continuously for a number of days, weeks, or months following the initial rainfall (Haneset al.1990, p. 51). Some hydrological systems have watersheds covering a large area, which contributes to filling and the hydrological dynamics of the system,while other hydrologic systems have very small watersheds and fill almost entirely from direct rainfall. It is also possible that subsurface inflows from surrounding soils within a watershed contribute to filling some vernal pools (Haneset al.1990, p. 53; Hanes and Stromberg 1998, p. 48).

    Impervious subsurface layers of clay or hardpan soils, combined with flat to gently sloping topography, inhibit rapid infiltration of rainwater and result in ponded water in vernal pools (Bauder and McMillian 1998, pp. 57-59). These soils also act as a buffer that moderates the water chemistry and rate of water loss to evaporation (Zedler 1987, pp. 17-30). In Ventura County, soil series known to support Riverside fairy shrimp include, but are not limited to, the Azule, Calleguas, Cropley, and Linne soil series. In Orange County, soils series include the Alo, Balcom, Bosanko, Calleguas, Cieneba, Myford, and Soper soil series. In western Riverside County, vernal pool habitat known to support Riverside fairy shrimp includes the Altamont, Auld, Bosanko, Cajalco, Claypit, Murrietta, Porterville, Ramona, Traver, and Willows soil series. In San Diego County, vernal pool habitat known to support Riverside fairy shrimp includes the Diablo, Huerhuero, Linne, Placentia, Olivenhain, Salinas, Stockpen, and Redding soil series. Soil series data are based on 2008 Soil Survey Data and are available online at:http://websoilsurvey.nrcs.usda.gov.For additional information on soils, see the “Primary Constituent Elements for Riverside Fairy Shrimp” section below.

    Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements

    Many fairy shrimp species are filter feeders with a diet that consists mostly of algae, bacteria, and other microorganisms (Parsick 2002, pp. 37-41, 65-70). In a natural vernal pool setting, these food items are readily available. Typically, an undisturbed, intact surface and subsurface soil structure (not permanently altered by anthropogenic land use activities such as deep, repetitive discing or grading), and the associated hydrogeomorphic processes within the basin and upland watershed, are necessary to provide food, water, minerals, and other physiological needs for Riverside fairy shrimp. Water temperature, water chemistry, and length of time that vernal pools are inundated are the important factors in the hatching and temporal appearance of Riverside fairy shrimp (Gonzalezet al.1996, pp. 315-316; Hathaway and Simovich 1996, p. 669). Riverside fairy shrimp hatch and reproduce in water at temperatures that range generally from 5 to 20 degrees Celsius (C) (41 to 68 degrees Fahrenheit (F)), and typically do not hatch at temperatures greater than 25 degrees C (77 degrees F) (Hathaway and Simovich 1996, pp. 674-675). Riverside fairy shrimp have a wider thermal tolerance than San Diego fairy shrimp (Branchinecta sandiegonensis), which allows Riverside fairy shrimp to hatch later in the season when deeper vernal pools are still filled with water.

    Cover or Shelter

    Ponding of vernal pool habitat (water) also provides cover and shelter for Riverside fairy shrimp. During the period when these habitats are inundated, water plays an important role in providing the necessary aquatic environment (shelter) for the fairy shrimp to complete its life-history requirements. Without water to protect them from desiccation, fairy shrimp would be unable to hatch, grow, mature, reproduce, and disperse within the vernal pool habitat (Helm 1998, p. 136; Service 1998a, p. 34; Eriksen and Belk 1999, pp. 71, 105). Additionally, the wet (ponding) period excludes plant and animal species that are exclusively terrestrial, providing a level of shelter from predation and competition for the fairy shrimp, which are adapted to short-lived, ephemeral wetland habitats.

    The undisturbed soil bank also provides cover and shelter for fairy shrimp cysts during the draw-down period of the vernal pool habitat. The drying phase allows reproductive cysts to overwinter, as they lay dormant in the soil. Basin soils provide cover and shelter to Riverside fairy shrimp as the vernal pool dries out (Simovich and Hathaway 1997, p. 42; Eriksen and Belk 1999, p. 105). By maintaining the population in a dormant state, reproductive cysts and the undisturbed soil in which they rest protect Riverside fairy shrimp from predators and competitors during the vernal pool dry period. Cyst dormancy is an important life-history adaptation for surviving arid phases, and is important for synchronizing life cycles in unstable and ephemeral wetland habitats (Belk and Cole 1975, pp. 209-210). Like the wet period exclusion of terrestrial plants, the draw-down period excludes species that are exclusively aquatic (such as fish), providing shelter for specially adapted Riverside fairy shrimp.

    Sites for Breeding, Reproduction, and Rearing (or Development) of Offspring

    Mature Riverside fairy shrimp are typically observed from mid-March through April (Enget al.1990, p. 259). In years with early or late rainfall, the hatching period may be extended. Riverside fairy shrimp can reach sexual maturity and begin mating approximately 8 weeks from the time a vernal pool fills with water (Hathaway and Simovich 1996, p. 673). Length of time to maturity restricts Riverside fairy shrimp to a small subset of relatively long-lasting vernal pools and ephemeral wetlands in southern California (Hathaway and Simovich 1996, p. 673). This maturation rate, which is distinctly longer than for other fairy shrimp, presumably restricts Riverside fairy shrimp typically to moderate to deep vernal pools and ephemeral basins (generally ranging from 12 in (30 cm) to 5 to 10 feet (ft) (1.5 to 3 meters (m)) in depth) (Hathaway and Simovich 1996, p. 675).

    Because the length of time that pools remain filled in vernal pool ecosystems is highly variable, Riverside fairy shrimp have become adapted to some degree of unpredictability in their habitat (Eriksen and Belk 1999, pp. 104-105) and to a system where the requisite conditions are transitory. Depending on rainfall and environmental conditions, a vernal pool may fill and recede numerous times. Often, the pool may evaporate before Riverside fairy shrimp are able to mature and reproduce (Ripleyet al.2004, pp. 221-223). The females' eggs begin to develop as soon as they are fertilized and then the development stops at an early stage (after a few cell divisions) and the eggs enter diapause (become dormant) as cysts or resting eggs (Lavens and Sorgeloos 1987, p. 29; Ericksen and Belk 1999, p. 105). Riverside fairy shrimp cysts are smaller than a tip of a pencil and contain a dormant fairy shrimp embryo encased in a hard outer shell. Cysts are generally retained in a brood pouch on the underbelly of the female until she dies, when both drop to the bottom of the vernal pool to become part of a cyst bank in the soil. During subsequent filling events, eggs may emerge from dormancy and hatch, or continue to diapause. Signals that break diapause include temperature and oxygen concentrations (Belk and Cole 1975, p. 216; Thorp and Covich 2001, p. 767). Resting eggs of freshwater crustaceans such as fairy shrimp have been shown to survive drying, heat, freezing, and ingestion by birds (Fryer 1996, pp. 1-14). Resting stages (dormancy) appear to be an adaptationto temporary habitats and may aid in long-distance dispersal because they can survive unfavorable conditions during dispersal by birds or tires of off-highway vehicles (OHVs) (Belk and Cole 1975, pp. 209, 222; Williams 1985, p. 97).

    Researchers have found that only a small proportion of Riverside fairy shrimp cysts in the cyst bank hatch each time the vernal pool fills. Therefore, if the pool dries before the species is able to mature and reproduce, there are still many more cysts left in the soil that may hatch the next time the pool fills (Simovich and Hathaway 1997, p. 42). Simovich and Hathaway (1997, pp. 40-43) referred to this as bet-hedging and concluded that it allows fairy shrimp, including Riverside fairy shrimp, to survive in an unpredictable environment. Bet-hedging ensures that some cysts will be available for hatching when the vernal pools hold water for a period long enough for Riverside fairy shrimp to complete their entire life cycle. Thus, reproductive output is spread over several seasons for small aquatic crustaceans, such as fairy shrimp, living in variable environments. Allowing conditions within the above parameters to occur on a natural basis is essential for the survival and conservation of Riverside fairy shrimp.

    Habitats That Are Protected From Disturbance or Are Representative of the Historical, Geographical, and Ecological Distributions of the Species

    Pools that support Riverside fairy shrimp are generally found in flat or moderately sloping areas, primarily in annual, disturbed (such as grazed or deep disced) grassland and chaparral habitats. The majority of complexes and pools that currently support Riverside fairy shrimp have experienced some level of disturbance, primarily from agriculture, cattle, and OHV activity.

    Estimates of the historical distribution of Riverside fairy shrimp suggest that 90 to 97 percent of vernal pool habitat has been lost in southern California (Mattoni and Longcore 1997, pp. 71-73, 86-88; Bauder and McMillan 1998, p. 66; Keeler-Wolfet al.1998, p. 10; Service 1998a, p. 45). Consideration should be given to conserve much of the remaining Riverside fairy shrimp occurrences from further loss and degradation in a configuration that maintains habitat function and species viability (Service 1998a, p. 62). Historically, there were larger complexes of vernal pools, including areas on the Los Angeles coastal prairie (Mattoni and Longcore 1997, p. 88). In other places, such as Riverside County, which has not yet been developed and fragmented to the same extent as Los Angeles County, we believe it is possible that additional occurrences of the Riverside fairy shrimp may be documented through more intensive survey efforts and reporting.

    The conservation of Riverside fairy shrimp is dependent on several factors including, but not limited to, maintenance of areas (of sufficient size and configuration to sustain natural ecosystem components, functions, and processes) that provide appropriate inundation and ponding durations, natural hydrological regimes and appropriate soils, intermixed wetland and upland watershed, connectivity among pools within geographic proximity to facilitate gene flow among complexes, and protection of existing vernal pool composition and structure.

    In a few locations, two species of fairy shrimp—San Diego fairy shrimp and Riverside fairy shrimp—are known to co-occur (Hathaway and Simovich 1996, p. 670). However, where these species do co-occur, they rarely have been observed to coexist as adults (Hathaway and Simovich 1996, p. 670). San Diego fairy shrimp are usually found earlier in the season than Riverside fairy shrimp, due to the Riverside fairy shrimp's slower rate of development (Hathaway and Simovich 1996, p. 675). Maturation rates are responsible for the sequential appearance of the species as adults in pools where they co-occur (Hathaway and Simovich 1996, p. 675). Neither species is found in the nearby desert or mountain areas, as temperature has been shown to play an important role in the spatial and temporal appearance of fairy shrimp.

    Primary Constituent Elements for Riverside Fairy Shrimp

    Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of Riverside fairy shrimp in areas occupied at the time of listing, focusing on the features' primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.

    Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to Riverside fairy shrimp are:

    (1) Ephemeral wetland habitat consisting of vernal pools and ephemeral habitat that have wet and dry periods appropriate for the incubation, maturation, and reproduction of the Riverside fairy shrimp in all but the driest of years, such that the pools:

    (a) Are inundated (pond) approximately 2 to 8 months during winter and spring, typically filled by rain, and surface and subsurface flow;

    (b) Generally dry down in the late spring to summer months;

    (c) May not pond every year; and

    (d) Provide the suitable water chemistry characteristic