[Federal Register Volume 70, Number 201 (Wednesday, October 19, 2005)]
[Rules and Regulations]
[Pages 60886-61009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20144]
[[Page 60885]]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Southwestern Willow Flycatcher (Empidonax traillii
extimus); Final Rule
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 /
Rules and Regulations
[[Page 60886]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT88
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Southwestern Willow Flycatcher (Empidonax
traillii extimus)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
designating critical habitat for the southwestern willow flycatcher
(Empidonax traillii extimus) pursuant to the Endangered Species Act of
1973, as amended (Act). In total, approximately 48,896 hectares (ha)
(120,824 acres (ac)) or 1,186 kilometers (km) (737 miles (mi)) fall
within the boundaries of the critical habitat designation. The critical
habitat is located in Apache, Cochise, Gila, Graham, Greenlee,
Maricopa, Mohave, Pinal, Pima, and Yavapai counties in Arizona (AZ),
Kern, Santa Barbara, San Bernardino, and San Diego counties in southern
California (CA), Clark County in southeastern Nevada (NV), Grant,
Hidalgo, Mora, Rio Arriba, Soccoro, Taos, and Valencia counties in New
Mexico (NM), and Washington County in Southwestern Utah (UT).
DATES: This rule is effective November 18, 2005.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, are available
for public inspection, by appointment, during normal business hours at
the AZ Ecological Services Office, U.S. Fish and Wildlife Service, 2321
West Royal Palm, Suite 103, Phoenix, AZ 85021 (telephone 602/242-0210).
The final rule, final environmental analysis, final economic analysis,
and maps are available via the Internet at http://www.fws.gov/arizonaes.
FOR FURTHER INFORMATION CONTACT: For information about Santa Barbara
County in CA, contact Diane K. Noda, Field Supervisor, Ventura Fish and
Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA, 93003
(telephone 805/644-1766; facsimile 805/644-3958). For information about
San Bernardino or San Diego Counties in CA, contact Jim Bartel, Field
Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road,
Carlsbad, CA 92011 (telephone 760/431-9440; facsimile 760/431-9624).
For information about Kern County in CA, contact Wayne White, Field
Supervisor, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room
W-2605, Sacramento, CA 95825 (telephone 916/414-6600; facsimile 916/
414-6713). For information about Grant, Hidalgo, Mora, Rio Arriba,
Soccoro, Taos, or Valencia Counties in NM, contact Susan MacMullin,
Field Supervisor, NM Fish and Wildlife Service Office, 2105 Osuna Road
NE, Albuquerque, NM 87113 (telephone 505/346-2525; facsimile 505/346-
2542). For information about Clark County in NV, contact Cynthia
Martinez, Field Supervisor, Las Vegas Fish and Wildlife Service Office,
4701 North Torrey Pines Drive, Las Vegas, NV 89130 (telephone 702/515-
5230; facsimile 702/515-5231. For information about Washington County
in UT, contact Henry Maddux, Field Supervisor, Salt Lake City Fish and
Wildlife Service Office, 2369 West Orton Circle, Suite 50, West Valley
City, UT 84119 (telephone 801/975-3330; facsimile 801/975-3331). For
information about Apache, Cochise, Gila, Graham, Greenlee, Maricopa,
Mohave, Pinal, Pima, or Yavapai Counties in AZ, contact Steve Spangle,
Field Supervisor, AZ Fish and Wildlife Service Office, 2321 West Royal
Palm, Suite 103, Phoenix, AZ 85021 (telephone 602/242-0210; facsimile
602/242-2513).
SUPPLEMENTARY INFORMATION:
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 available conservation resources. The Service's present system for
designating critical habitat has evolved since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts 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 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 466 species or 37 percent
of the 1,268 listed species in the U.S. under the jurisdiction of the
Service have designated critical habitat.
We address the habitat needs of all 1,268 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.
We note, however, that two courts found our definition of adverse
modification to be invalid (March 15, 2001, decision of the United
States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish
and Wildlife Service et al., F.3d 434 and the August 6, 2004, Ninth
Circuit judicial opinion, Gifford Pinchot Task Force v. United State
Fish and Wildlife Service). In response to these decisions, we are
reviewing the regulatory definition of adverse modification in relation
to the conservation of the species.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved 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, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically
[[Page 60887]]
imperiled species, and final listing determinations on existing
proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left
the Service with almost no ability to provide for adequate public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially-imposed deadlines.
This in turn fosters a second round of litigation in which those who
fear adverse impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively 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, the cost of requesting and responding to public
comment, and in some cases the costs of compliance with the National
Environmental Policy Act (NEPA). None of these costs result in any
benefit 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.
Background
Background information on the southwestern willow flycatcher can be
found in our proposal of critical habitat for the southwestern willow
flycatcher, published in the Federal Register on October 12, 2004 (69
FR 60706); the Southwestern Willow Flycatcher Recovery Plan (USFWS
2002); our previous designation of critical habitat for this species,
published on July 22, 1997 (62 FR 39129), and August 20, 1997 (62 FR
44228); and the final rule listing this bird as endangered (February
27, 1995; 60 FR 10694). That information is incorporated by reference
into this final rule. This rule becomes effective on the date listed
under DATES at the beginning of this document, and replaces the July
22, 1997, critical habitat designation for this species that was set
aside pursuant to a court order on May 11, 2001.
Previous Federal Actions
Previous Federal actions for the southwestern willow flycatcher can
be found in our proposal of critical habitat for the southwestern
willow flycatcher published on October 12, 2004 (69 FR 60706). That
information is incorporated by reference into this final rule.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the southwestern willow flycatcher
in the proposed rule published on October 12, 2004 (69 FR 60706). The
comment period was extended on December 13, 2004 (69 FR 72161), and on
March 31, 2005 (70 FR 16474), resulting in the comment period being
continuously open until May 31, 2005. The comment period was re-opened
once more from July 7 to July 18, 2005 (70 FR 39227). We contacted the
appropriate Federal, State, and local agencies, Tribes, scientific
organizations, elected officials, and other interested parties and
invited them to comment on the proposed rule. We contacted these groups
by letter, electronic mail, and/or post card at the time of publication
of the proposed rule; at each extension of the comment period; when we
announced the availability of the draft economic analysis, draft
environmental assessment, and location of public hearings (70 FR
21988); and during re-opening of the comment period (70 FR 39227).
Following publication of each Federal Register notice, we widely
distributed news releases and posted them on the Internet. We also sent
two newsletter updates to these groups during the rulemaking process to
update them on the status of the proposal and associated documents.
In addition, we invited public comment on the proposal through the
publication of legal notices in 14 regional newspapers announcing 8
public hearings, 8 public information meetings, and the availability of
the draft economic analysis and draft environmental assessment. These
legal notices were published in the Arizona Republic, Silver City Daily
Press, Santa Fe New Mexican, Grand Junction Sentinel, The Spectrum (St
George, UT), Las Vegas Review Journal, Kern Valley Sun, The Bakersfield
Californian, Riverside Press-Enterprise, San Bernardino Sun, San Diego
Union Tribune, Albuquerque Journal, Albuquerque Tribune, and Valley
Courier (Alamosa, CO). We published legal ads prior to NEPA scoping
meetings and also when we announced the documents' availability and the
public hearings.
We held public hearings and NEPA informational open houses at
Escondido and Chino, CA (May 2-3, 2005); Las Vegas, NV, and Lake
Isabella, CA (May 9-10, 2005); and Mesa, AZ, Silver City, NM,
Albuquerque, NM, and Alamosa, CO (May 16-19, 2005). We also contacted
and sent press releases to news media in Arizona, New Mexico, Southern
California, Southern Nevada, Southern Utah and Southern Colorado.
Additional public information meetings were held in Camp Verde, AZ
(February 17, 2005--sponsored by the Verde Watershed Association);
Albuquerque, NM (May 18, 2005--sponsored by Northern NM Pueblos),
Bishop, CA (May 24, 2005--sponsored by Los Angeles Department of Water
and Power), and Safford, AZ (July 7, 2005--sponsored by Graham County).
All comments and new information received during the open comment
period have been incorporated into this final rule as appropriate.
We received a total of 534 pieces of correspondence (e-mails,
letters, and faxes) during the public comment periods. Of the 534
comment letters, 237 were received from individuals, 164 from
government agencies, 31 from 21 different tribes, 62 from
organizations, and 40 from businesses.
We received comments from each State represented in the proposed
designation. We received 260 comments letters from AZ, 72 comment
letters from CA, 64 from NM, 40 from CO, 8 from NV, and 5 from UT. A
total of 85 were received from outside of these States or areas where
critical habitat was proposed for designation. Comments from each piece
of correspondence were identified, grouped by issue, and reviewed.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited independent opinions from at least three
knowledgeable individuals who have expertise with the species, with the
geographic region where the subspecies occurs, and/or familiarity with
the principles of conservation biology. Of the seven individuals
contacted, three responded. The peer reviewers that submitted comments
generally supported the proposal and provided us with comments, which
are included in the summary below and incorporated into the final rule,
as appropriate. We received comments from the peer reviewers during the
comment period on our proposed rule.
Peer Review Comments
(1) Comment: Peer reviewers commented that we made good use of the
current data, published and gray literature, expert opinion, and the
Recovery Plan (USFWS 2002).
Our Response: We believe we have considered and applied to this
designation the best available scientific
[[Page 60888]]
and commercial information regarding the southwestern willow
flycatcher.
(2) Comment: One peer reviewer commented that while we described in
detail the dynamic aspects of flycatcher habitat, that dynamic
component is not reflected in the primary constituent elements (PCEs).
Limiting critical habitat to only where vegetation currently exists
undermines the dynamic component of its habitat.
Our Response: As we have described in the proposed rule and this
final rule, the dynamic aspects of flycatcher habitat are an important
component of its long-term suitability for nesting and the overall
quality and presence of riparian vegetation. Because flycatchers
commonly place nests in the dense riparian vegetation in early
successional growth, recycling of habitat from natural disturbances
(i.e., flooding) is necessary to promote dense growth. Germination and
growth of riparian vegetation is essential. As a consequence of river
dynamics and proximity to water, the location and/or condition of its
habitat can change from one season to the next due to drought,
flooding, or simple growth of vegetation. Our PCEs focused on the end
result of all the components that culminate in the development of
flycatcher habitat. We described those components (e.g., broad
floodplain, surface water, fine sediments, hydrologic regime, channel-
floodplain connectivity, elevated groundwater, etc.) in detail in the
supporting text for the PCEs (69 FR 60712-60715). For example, we
described in the Sites for Germination and Seed Dispersal section, the
importance of appropriate floodplain conditions for the development,
abundance, distribution, maintenance, and germination of flycatcher
habitat, including features such as elevated groundwater, and fine/
moist soils for seed germination and insect production.
As the peer reviewer mentioned, we described in great detail the
dynamic aspects of flycatcher habitat location and growth in the
proposed rule. However, we did not reflect the essential aspect of
vegetation germination and growth (i.e., succession) that should
accompany these PCEs. In order to more accurately reflect our proposal
and the PCEs for the southwestern willow flycatcher, we have added a
``successional'' component to the PCEs. The Act requires that Federal
action agencies consider and consult on actions that affect the PCEs.
Thus, projects that impede the regeneration and/or growth of riparian
vegetation, depending on the scope of the project, could result in an
adverse affect to riparian habitat, thus requiring consultation under
section 7 of the Act.
(3) Comment: One peer reviewer commented, with respect to the PCEs,
that flycatcher habitat is more than dense vegetation. Southwestern
willow flycatchers require a mosaic of riparian vegetation in a variety
of developmental (i.e., successional) stages.
Our Response: We agree. Southwestern willow flycatcher habitat
consists of riparian vegetation in a variety of growth stages used for
a variety of life-history needs, such as foraging, migration, and
dispersal. An area with dense vegetation for nest placement is the most
defined structure and is captured in PCEs 1b through 1e. By emphasizing
shorter/sparser vegetation, with a mosaic not uniformly dense as small
as 0.1 ha (.25 ac), PCEs 1a and 1e not only encompasses riparian plant
species, but important habitats for breeding and foraging southwestern
willow flycatchers, but also accounts for habitat for dispersing and
migrating southwestern willow flycatchers. Also, on the basis of the
issue raised in this comment, and the need for further clarification,
we expanded PCE number 1 in this final rule to accurately reflect other
life-history needs of the southwestern willow flycatcher (i.e.,
migration, dispersal, foraging, and shelter) fulfilled by riparian
vegetation described in our proposed and final rules. However, we note
that the methodology used for designating critical habitat for the
southwestern willow flycatcher was based around nesting territories,
and critical habitat is not being designated solely as an area that is
used for migration, dispersal, foraging, and shelter.
(4) Comment: Two peer reviewers remarked that extant, large
populations of southwestern willow flycatchers are the most important
assets for recovery. But excluding other locations with smaller
populations may fall short in providing specific areas essential to the
conservation of a listed species and that may require special
management considerations. Management Units where recovery goals exist
that are not represented in this designation were used as examples.
Our Response: We recognize that there are locations and areas
within the geographical area occupied by the southwestern willow
flycatcher that were not proposed as critical habitat. We also agree
with the comment that locations with smaller breeding populations or
improvement of habitat conditions in areas with no breeding populations
are important. However, section 3(5)(c) of the Act states that not all
areas that can be occupied by a species should be designated as
critical habitat unless the Secretary determines that all such areas
are essential to the conservation of the species. As described below,
the methodology used to define those areas that meet the definition of
critical habitat focused on large populations that are in high
connectivity to one another. Thus, while not all areas important for
flycatcher recovery were proposed as critical habitat, we believe this
designation defines those areas that are essential. We also acknowledge
that while Recovery Plans formalize the recovery strategy for a
species, they are not regulatory documents and that critical habitat
can contribute to the overall recovery strategy for a listed species,
but does not, by itself, achieve recovery plan goals.
We encourage Federal and State agencies, Tribal governments,
municipalities, private groups, and landowners to continue conducting
surveys for flycatchers, protect and strive to improve smaller
populations of flycatchers, and manage flycatcher habitat to create
more populations in order to reach recovery. Because an area is not
designated as critical habitat, does not mean it is not important for
flycatcher recovery.
(5) Comment: Two peer reviewers, who were involved with the
development of the population viability analysis for the flycatcher,
generally agreed that we interpreted the information correctly and
appropriately identified 10 territories as a large population. One
reviewer commented that, ``the recommendation in the Recovery Plan with
regard to metapopulation stability was based on a population viability
analysis conducted to answer questions about the relationship between
individual flycatcher sites and their relative importance to overall
flycatcher population size. The emphasis in the Recovery Plan of the
importance of large populations to metapopulation stability is based on
the positive relationship between population size and colonization
potential. The relationship however is non-linear with increase in
colonization potential diminishing for growth above 10 territories and
virtually disappearing for growth above 25 territories. Given this, a
biologically based break point of 10 territories to distinguish between
large and small populations (sites) is appropriate.''
Our Response: We recognize that the use of numbers and break points
can be difficult, and also agree that we interpreted and used the data
appropriately.
[[Page 60889]]
(6) Comment: Peer reviewers generally agreed that our application
of a 29 km (18 mi) radius, determined by the between-year movements
recorded from banded southwestern willow flycatchers, was appropriate
to delineate the limits of essential habitat and a high degree of
connectivity between collections of smaller sites. However, two peer
reviewers recognize that, given more time and with additional banding,
survey, and monitoring efforts, it is likely that greater distance
movements would be recorded more frequently.
Our Response: We acknowledge the input provided by the reviewers
with respect to longer movements, and note that the researchers have
also provided this perspective. We understand that there are some
between-year flycatcher movements that are very large (greater than 400
km/248 miles) (E. Paxton, USGS, e-mail). However, these movements,
while important to understand the connection of populations, are not
common. Populations located hundreds of kilometers (miles) apart would
not likely be considered ``highly'' connected. Conversely, sites only a
kilometer or so apart could hardly be considered a different site. From
1997 to 2003, Paxton (USGS, e-mail) reported 267 of 292 band recoveries
occurred within 29 km (18 mi) of previous year's location. Our approach
with respect to use of the results of banding data, was to determine
highly connected southwestern willow flycatcher sites in order to
identify essential habitat and define population connectivity. We
believe our interpretation of the data for the purposes used here was
appropriate.
(7) Comment: Peer reviewers supported using the survey results from
the years 1993 to 2002 to develop this designation of critical habitat
for the southwestern willow flycatcher.
Our Response: The information collected throughout the bird's range
by the public and surveyors completing and submitting forms, and State
and Federal agencies summarizing and cataloging these results in
databases is invaluable. It is this quality and level of data that
provides us the ability to develop the appropriate guidance documents
and regulations pursuant to the Act that assist in the recovery of
federally listed species such as the southwestern willow flycatcher.
(8) Comment: Peer reviewers generally agreed that a lateral extent
boundary tracking the extent of riparian vegetation within the 100-year
floodplain was appropriate.
Our Response: As one peer reviewer noted and we pointed out in the
proposed rule, flycatcher habitat will change its location and
condition within the 100-year floodplain due to events such as
flooding, drought, and vegetation growth. Therefore, a lateral extent
that reasonably captures the boundaries of that dynamic habitat
movement, we believe, is appropriate.
(9) Comment: One peer reviewer commented that rarely, flycatcher
breeding habitat may persist outside of the 100-year floodplain in
response to an artificial or man-made situation.
Our Response: We are aware that infrequently, flycatcher breeding
habitat and migratory habitat may occur in unusual locations outside
the floodplain. There may also be more natural situations where
flycatchers use upland habitat for nesting or foraging. However, we
believe we captured essential areas across the bird's range through our
methodology as described in this rule. We point out, as the reviewer
did, that direct or indirect adverse affects to those areas are still
subject to consultation under section 7 of the Act and those birds are
still protected by the prohibitions set forth in section 9 of the Act.
(10) Comment: One peer reviewer pointed out that there are
significant anthropogenic influences throughout the bird's range that
help support southwestern willow flycatcher habitat which we did not
elaborate on in the proposed rule. Because of that, there may be some
confusion over what constitutes a ``riparian developed'' area.
Our Response: As the peer reviewer noted, irrigation canals and/or
agricultural run-off, among other things, can help develop and support
flycatcher habitat. The Recovery Plan (USFWS 2002: D-15) discussed that
``* * * although some flycatcher breeding sites * * * are relatively
un-impacted by human activities, most of the riparian vegetation
patches in which the flycatcher breeds are supported by various types
of supplemental water including agricultural and urban run-off, treated
water outflow, irrigation or diversion ditches, reservoirs, and dam
outflows. Although the water provided to these habitats might be
considered ``artificial'', they are often essential for maintaining the
habitat in a suitable condition for breeding flycatchers. However,
reliance on such water sources for riparian vegetation persistence may
be problematic because the availability (in quantity, timing, and
quality) is often subject to dramatic changes based on human use
patterns; there is little guarantee that the water will be available
over the long-term.''
Our PCEs focused on the culmination of factors such as floodplain
shape, soils, water, and groundwater elevation that resulted in
vegetation and insects appropriate for southwestern willow flycatchers
when they are breeding (flycatchers that are documented attempting to
nest; breeding flycatchers are always territorial flycatchers),
migrating (flycatchers traveling north to breeding grounds and south to
wintering grounds), dispersing (young-of-the-year and adult flycatchers
typically following nesting and prior to migration), territorial
(flycatchers during the breeding season that defend a territory;
territorial flycatchers often nest, however un-paired territorial birds
may not), and non-breeding (flycatchers during a portion of or for the
entire nesting season that do not defend a territory or attempt to
nest; these birds can also be referred to as floaters). Anthropogenic
(i.e., man-made) factors can, if conditions are right, mimic some of
those factors and help support southwestern willow flycatcher habitat.
Also, these same types of activities, depending on the degree,
location, and extent of their influence, can degrade southwestern
willow flycatcher habitat. For example, dam operations can cause water
to spread out over a wider area more consistently than there would be
without the dam, potentially causing the development of riparian
habitat over a large area. However, depending on how that dam is
operated, flycatcher habitat may or may not be able to develop due to
the amount and length of time water covers the floodplain/lake bottom.
Additionally, some dams divert water from a river such that water
rarely returns to the river channel, thereby removing the opportunities
for habitat to develop below the dam.
Our description of riparian developed areas in the lateral extent
section refers to infrastructures that do not grow riparian vegetation
such as agricultural fields, roads, houses, landscaped areas
surrounding houses, cement pads, bridge footings, bases of utility
structures, and existing gravel pits.
Overall, we recognize the value of situations where man-made
activities augment, maintain, enhance, or develop southwestern willow
flycatcher habitat. We also recognize the potential difficulties that
may arise with respect to a landowner's desire to change practices that
could result in incidental take of flycatchers (regardless of a
critical habitat designation). In these instances, we seek to work with
landowners and/or agencies to provide Endangered Species Act coverage
through section 7 consultations, a Safe Harbor Agreement, or Habitat
Conservation Plan to ensure conservation of the flycatcher and to
[[Page 60890]]
provide regulatory authorization and unburden a landowner.
Comments Related to Previous Federal Actions, the Act, and Implementing
Regulations
(11) Comment: Many commented that our discussion concerning the
value of designating critical habitat, and the procedural and resource
difficulties involved should be addressed in a different forum, not in
a critical habitat rule.
Our Response: As discussed in the sections ``Designation of
Critical Habitat Provides Little Additional Protection to Species,''
``Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act,'' and ``Procedural and Resource Difficulties in
Designating Critical Habitat'' and other sections of this and other
critical habitat designations, we believe that, in most cases, other
conservation mechanisms provide greater incentives and conservation
benefits than does the designation of critical habitat. These other
mechanisms include the section 4 recovery planning process, section 6
funding to the States, section 7 consultations, the section 9
protective prohibitions of unauthorized take, the section 10 incidental
take permit process, and cooperative programs with private and public
landholders and tribal nations.
(12) Comment: Many commenters identified particular areas that they
believed should not be designated because critical habitat will
unnecessarily burden the regulated public and will overload Service
staff with implementation of the designation. Specifically, many
private landowners with agricultural fields, water diversions, and
cattle ranches throughout the bird's range commented that this
designation would cause them harm economically and delay projects
through the regulatory process.
Our Response: Pursuant to the Act, we are statutorily required to
designate critical habitat for a federally listed species if it is
determined to be both prudent and determinable. We have previously made
a determination that critical habitat was both prudent and determinable
in our previous designation for this species (62 FR 39129, July 22,
1997). We further note that we are under court order to re-designate
critical habitat for the southwestern willow flycatcher (please refer
to our proposed rule (69 FR 60706, October 12, 2004) under Previous
Federal Action for a discussion of the litigation history concerning
this designation). Critical habitat designations do not constitute or
create a regulatory burden, by themselves, in terms of Federal laws and
regulations on private landowners carrying out private activities, but
in certain areas they may trigger additional State regulatory reviews
and other requirements. For example, actions occurring in critical
habitat in California may be subject to additional regulatory reviews
under the California Environmental Quality Act and other State laws and
regulations. When a private action requires Federal approval, permit,
or is federally funded, the critical habitat designation may impose a
Federal regulatory burden for private landowners; absent Federal
approval, permits, or funding, the designation should not affect
farming and ranching activities on private lands. Similarly, a Federal
nexus could result in the designation affecting future land use plans,
and the designation may trigger State requirements which could impact
such plans. However, we note that lands included in this proposal are
waterways with limited development (housing or commercial structures)
potential. As explained in this rule, we are required to and have
developed an economic analysis of the effects of this designation
pursuant to section 4(b)(2) of the Act which considers the issues
raised by the commenters.
(13) Comment: Some commented that designation of critical habitat
for the southwestern willow flycatcher conflicts with management of
native fish (Lake Mead and Horseshoe Lake), and similarly, that
critical habitat for the flycatcher is inappropriate because it results
in single species management.
Our Response: Management for southwestern willow flycatcher habitat
and native fish and other riparian/aquatic species should largely be
compatible. A large number of riparian species are listed as threatened
or endangered, species that naturally inhabit the riparian and/or
aquatic habitats to which the flycatcher is also tied (USFWS 2002: 55-
60). This underscores that southwestern riparian and aquatic habitats,
while supporting disproportionately high levels of biodiversity, have
also been degraded at a landscape level. The presence of so many listed
species within this broad ecosystem does not mean that difficult
decisions must be made of managing for one listed species rather than,
or at the expense of, another. Rather this situation illustrates that
if riparian and aquatic ecosystems are improved to a more natural,
heterogeneous conditions (recognizing that restoring rivers to
completely wild conditions is not possible), many imperiled species
will benefit.
We do recognize however that there may be some specific instances
where situations such as water storage could result in conflicts in
somewhat artificial environments such as lakes for the flycatcher and
listed fish. However, these instances throughout the flycatcher's range
and this designation, we believe, are few and far between, and are site
specific. The two locations brought up in comments, Lake Mead and
Horseshoe Lake, are being excluded from this final rule pursuant to
section 4(b)(2) of the Act.
(14) Comment: Some comments pointed out that our critical habitat
proposal was significantly different in the amount and location of
areas identified in our 1997 designation, and there was no discussion
or analysis of the difference.
Our Response: As the comment points out, some areas designated as
critical habitat in 1997 were not proposed for designation in this
proposal, some of the same areas were proposed, and new areas were
proposed. Our draft NEPA document described the specific streams that
changed between the two proposals. Our specific methodology used to
identify areas proposed as critical habitat provided our approach to
critical habitat in contrast to the previous designation (which had no
specific methodology). The science provided in the Recovery Plan (USFWS
2002) and our improved knowledge of the distribution and abundance of
territories, use of river corridors for migration, year-to-year
movements, and habitat use within territories helped guide our approach
and provided support for the segments proposed. Therefore, it was
largely our improved knowledge of the flycatcher and its habitat that
provided the difference in areas proposed in 2004 compared to those in
1997.
(15) Comment: Some stated that our comment periods for the proposed
rule, NEPA document, and economic analysis were inadequate to allow the
public to understand and comment meaningfully on the proposed rule and
should be extended.
Our Response: The proposed critical habitat rule for the
southwestern willow flycatcher was available to the public for review
and comment from October 12, 2004, to May 31, 2005, and for an
additional 11 days from July 7 to July 18, 2005. The comment periods
for the economic analysis and NEPA document extended from April 28,
2005, to May 31, 2005, plus the additional 11-day period in July.
Therefore, there was an open comment period for 43 days for the draft
economic analysis and NEPA documents, plus there was a total of just
[[Page 60891]]
over 70 days where the public was able to examine these documents. We
believe these two public comment periods of over 8 months for the
proposal, and 43 days (but over 70 days to review) for the NEPA and
economic analysis, provided adequate opportunity for public comment. In
addition, due to the large scope of this rule and in order to comply
with our September 30, 2005, court ordered date for completion of the
final rule it would not have been possible to extend the comment period
beyond July 18, 2005.
(16) Comment: One commenter stated that the Service did not
adequately notify landowners where proposed critical habitat was
located. Another commenter expressed concern that the quality of the
maps was poor and therefore, made it difficult for the public to
adequately comment on the proposed revisions.
Our Response: Due to the large scope of the proposed designation it
was not possible to contact each landowner. However, we issued a widely
disseminated news release regarding our proposal and published legal
notices in major newspapers in areas involved in the proposal. We
published numerous Federal Register notices including a notice of
intent to conduct scoping for critical habitat, the critical habitat
proposal, comment period extensions, notice of availability of draft
documents, notices of scoping meetings and hearings. We sent out
thousands of letters and cards to State and Federal government
agencies, private individuals and groups, elected officials, and tribal
governments also announcing the proposal, document availability, and
public meetings/hearings. We also developed and sent out press releases
concurrent with Federal Register notice announcements. A web page of
southwestern willow flycatcher critical habitat materials was
maintained at Arizona Ecological Services Web Site http://www.fws.gov/arizonaes. Public meetings, open houses and/or hearings on the
published proposal were held in the following locations: February 17,
2005--Camp Verde, AZ (sponsored by Verde Watershed Association); May 2,
2005, Escondido, CA; May 3, 2005, Chino, CA; May 9, 2005, Las Vegas,
NV; May 10, 2005, Lake Isabella, CA; May 16, 2005, Mesa, AZ; May 17,
2005, Silver City, NM; May 18, 2005, Albuquerque, NM; May 19, 2005,
Alamosa, CO; May 24, 2005--Bishop, CA (sponsored by Los Angeles Water
and Power Authority); July 7, 2005--Safford, AZ (sponsored by Graham
County). NEPA scoping meetings were held at Escondido, Chino, and Lake
Isabella, CA; Phoenix, AZ; Las Vegas, NV; Silver City and Albuquerque,
NM, and Alamosa, CO in early 2004.
Maps delineating the boundaries of critical habitat were included
in the October 12, 2004, proposed rule, and posted at http://criticalhabitat.fws.gov were specific GIS layers of the proposed
critical habitat. In the proposed rule we provided contact information
for eight Service Field Offices for anyone seeking assistance with the
proposed critical habitat. Therefore, we believe that we made every
effort possible to reach all interested parties and provide avenues for
them to obtain information concerning our proposal and supporting
documents.
(17) Comment: One commenter stated that local land use controls
provide sufficient protection for the southwestern willow flycatcher.
Our Response: Although there are other State, local, and Federal
laws that offer some protection to endangered species and their
habitats (e.g., Clean Water Act and California Environmental Quality
Act), none provide the same level of protection and review for
threatened and endangered species as does the Act. These laws are not
redundant and work in concert to provide protection for environmental
resources.
(18) Comment: Some comments expressed that the Service failed to
identify special management considerations related to a variety of
lands across the subspecies range.
Our Response: In our proposed designation of critical habitat for
the southwestern willow flycatcher that published on October 12, 2004
(69 FR 60706), we identified special management considerations shared
by all stream segments proposed for southwestern willow flycatcher
critical habitat. We cited threats such as loss and modification of
habitat due to industrial, agricultural, and urban developments, and
directed the reader to locations where the threats are described in
great detail in the final listing rule (60 FR 10694, February 27,
1995), the previous critical habitat designation (62 FR 39129, July 22,
1997), and the final recovery plan (USFWS 2002). We note there are
complete appendices included in the Recovery Plan (USFWS: Appendices A-
O) that elaborate on rangewide southwestern willow flycatcher
management issues focusing on water management, livestock grazing,
recreation, cowbird parasitism, habitat restoration, exotic plants,
fire management, recreation, etc.
(19) Comment: One comment asked whether on-going activities, such
as routine inspections, road grading, and construction adjacent to
designated critical habitat are considered to appreciably decrease
habitat values or quality through indirect effects.
Our Response: The effects of any such activities on critical
habitat must be considered by the Federal agency planning to conduct
such activities. The action agency determines whether their action(s)
``may affect'' the southwestern willow flycatcher or its primary
constituent elements within the adjacent critical habitat based on
their analyses. If so, the action agency would enter into consultation
with us under section 7. We do not anticipate that grading existing
roads or inspection of existing developed areas would likely result in
an effect to critical habitat. Construction, depending on the type of
activity, could have adverse effects, especially if it indirectly
resulted in impacts to habitat such as groundwater pumping, channel
manipulation, habitat trampling, etc.
(20) Comment: Several comments expressed concern that commercial
activities, such as mining, mineral prospecting, agriculture, etc.
would be prohibited or severely restricted by a designation of critical
habitat.
Our Response: Section 7(a)(2) of the Act requires Federal agencies
to ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of such a species or
result in the destruction or adverse modification of critical habitat.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Through this consultation, the action agency
ensures that their actions do not destroy or adversely modify critical
habitat. Section 7 of the Act does not apply to activities on private
or other non-Federal lands that do not involve a Federal nexus, and
critical habitat designation would not provide any additional
protections under the Act for private or non-Federal activities.
Critical habitat does not prohibit private or commercial activities
from occurring. However, all parties, Federal, State, private, and
tribal are unable to take (e.g., harm, harass, pursue) listed species
under section 9 without the appropriate permit.
(21) Comment: Some comments suggested that the designation of
critical habitat would prohibit mosquito abatement programs.
Our Response: The Service does not believe that mosquito abatement
programs focused in communities and developed areas necessarily pose a
risk to southwestern willow flycatchers. We
[[Page 60892]]
encourage cooperation and coordination from those applying chemicals to
riparian areas in and around river water due to possible concerns
regarding southwestern willow flycatchers, other wildlife dependent on
insect populations, and water quality. We believe there are
applications of mosquito abatement in riparian areas that could be
compatible with southwestern willow flycatchers and reduce risk to
other wildlife and people. For example, application of larvicide is
typically most effective, target specific, and provides the least risk
to non-target species (CDC 2003).
Comments Related to Critical Habitat, Primary Constituent Elements, and
Methodology
(22) Comment: Some questioned the scientific evidence used to
determine critical habitat, one describing it as junk science.
Our Response: In designating critical habitat for the southwestern
willow flycatcher, we have used the best available scientific and
commercial information, including results of numerous surveys, peer-
reviewed literature, unpublished reports by scientists and biological
consultants, habitat models (Hatten and Paradzick 2003; Dockens and
Paradzick 2004), a stakeholder-driven Recovery Plan (USFWS 2002), and
expert opinion from biologists with extensive experience studying the
southwestern willow flycatcher and its habitat. Further, information
provided in comments on the proposed designation and the draft economic
analysis were evaluated and taken into consideration in the development
of this final designation, as appropriate. The literature cited for
this rule is posted at http://www.fws.gov/arizonaes/. Also, the
proposed rule has undergone peer review, and those comments are
included above.
(23) Comment: One commenter remarked that the information developed
for the 29 km (18 mi) radius is inappropriate because it was site
specific and is only a by-product of the study area.
Our Response: We disagree and note the support for this radius
provided by peer reviewers in comment number 6. In the instance of the
work conducted by U.S. Geological Survey (USGS) that provided the
information on natural movements of southwestern willow flycatchers, we
are familiar with no other study that has occurred for as many years
(since 1997), over as large an area, and has trapped, banded, and re-
sighted as many birds. The primary study area occurs along lower Tonto
Creek, Roosevelt Lake, the Salt River immediately above Roosevelt Lake,
the lower San Pedro River (encompassing an area from approximately
Bingham Cienaga to Winkelman), and the Gila River from Dripping Springs
Wash downstream past Kearny. However, the ability to detect banded
flycatchers extends beyond this general study area to AZ, and to a
lesser extent, across the entire bird's range.
Banding and re-sighting of birds by the USGS occurs primarily in
conjunction with crews from Arizona Game and Fish Department. In some
years, approximately 40 or more people are directly participating in
this effort. In past years, the USGS has traveled to locations across
AZ, such as Camp Verde; the Gila River near Safford; and Greer to trap,
band, and/or re-locate banded southwestern willow flycatchers, and has
traveled throughout the subspecies range to trap, band, collect genetic
material, and possibly detect previously banded birds.
The primary study area encompasses a variety of habitats and
conditions and locations over a large area. The habitat varies from
free-flowing Tonto Creek and Salt River, to the regulated conservation
space of Roosevelt Lake, to the regulated Gila River below Coolidge
Dam, and the free-flowing San Pedro River. The work encompassed within-
drainage and between-drainage movements. We believe these are diverse
locations providing diverse habitats over a wide ranging study area.
This large study area did not place artificial geographic limits on
potential re-sightings of banded southwestern willow flycatchers.
A portion of each southwestern willow flycatcher recovery permit,
issued by the Service for surveying in Region 2, identifies the
importance of banded birds and the reporting requirements if one is
detected. The USGS is able to respond to these reports to try and
confirm these sightings. Also in support of this effort, the importance
of documenting banded flycatchers is a section of each survey training
session that every permitted surveyor attends. Therefore, the area and
effort to determine the movements of flycatchers extends beyond the
primary Roosevelt/San Pedro/Gila River area, to all survey sites across
AZ, and to a lesser extent, across the bird's range. The USGS is also
in contact with scientists studying flycatchers across their range,
such as SWCA, Inc. and the Bureau of Reclamation along the lower
Colorado River, and ongoing research on the Kern River, CA.
Additionally, band recoveries are reported to the USGS Bird Banding Lab
and reported back to the scientists.
We understand that the selection of a study area could limit the
extent of data collected, but in this case, we do not believe it
hampered our ability to make an appropriate conclusion on southwestern
willow flycatcher movements to determine high connectivity between
distant sites. The frequency (267 of 292) of band recoveries within 29
km (18 mi) radius; the approximate 150 km/93 mi distance between the
limits of intensive monitoring (Tonto Creek inflow to Roosevelt Lake to
Bingham Cienega on San Pedro River); the training, survey effort, and
band recovery opportunities statewide and rangewide; and range of
flycatcher movements recorded (0 km/mi to 440 km/276 mi) leads us to
conclude that our application of the data collected was appropriate.
(24) Comment: One commented that the critical habitat designation
is not consistent with the Recovery Plan's definition of occupied
habitat.
Our Response: The Recovery Plan and survey protocols established
for southwestern willow flycatchers define or describe the
determination of an occupied nesting territory, but do not address, nor
were intended to address, the amount or extent of area used by
southwestern willow flycatchers for life-history needs, its home range,
migration stopover areas, or how to delineate critical habitat. We note
the Recovery Plan's (USFWS 2002: 16) conclusion that ``nesting habitat
is only a small portion of the larger landscape that needs to be
considered when developing management plans, recovery actions,
biological assessments for section 7 consultations with the USFWS, or
other documents defining management areas or goals for flycatcher
recovery.'' The critical habitat designation follows this guidance.
(25) Comment: One individual commented that critical habitat should
be designated and recovery should be conducted on a patch-by-patch
basis.
Our Response: Flycatcher habitat is ephemeral and its mosaic-like
distribution is dynamic in nature, because riparian vegetation is prone
to periodic disturbance (i.e., flooding) (USFWS 2002:17). Therefore, it
is not realistic to assume that any breeding habitat patch will remain
suitable over the long-term, or persist in the same location (USFWS
2002:17). Designation at the patch level is technologically unfeasible
because comprehensive mapping of flycatcher habitat at the patch level
does not exist.
Cardinal and Paxton (2005) described the extent of area or home
range used by pre-breeding, breeding, and post-nesting southwestern
willow flycatchers
[[Page 60893]]
and dispersing young-of-the-year southwestern willow flycatchers, and
discovered flycatchers using a variety of habitats extending beyond the
area where a nest is placed for foraging, territory establishment, mate
discovery, and staging for migration. Koronkiewicz et al. (2004) and
McLeod et al. (2005) described the use of the entire length of the
lower Colorado River and its tributaries by willow flycatchers during
migration. Also, southwestern willow flycatchers exhibit general site
fidelity, rather than specific nest fidelity, largely in response to
its dynamic habitat (USFWS 2002: 22). Breeding southwestern willow
flycatchers typically move from one season to the next, regularly up to
29 km (18 mi). A few birds have been detected at greater than 400 km
(248 miles) from a previous year's breeding location (E. Paxton, USGS,
e-mail).
(26) Comment: Many commented that areas identified in the Recovery
Plan for recovery should be designated as critical habitat,
specifically river segments not proposed in the Hassayampa/Agua Fria,
Amaragosa, Santa Cruz, San Francisco, lower Rio Grande, Powell, San
Juan, and Santa Clara Management Units.
Our Response: Recovery plans are not regulatory documents, and as a
result, there are no specific protections, prohibitions, or
requirements afforded a species based solely on a recovery plan.
Critical habitat contributes to the overall recovery strategy for
listed species, but does not by itself achieve recovery plan goals. The
Act states, at section 3(5)(c), that except in particular circumstances
determined by the Secretary, critical habitat shall not include the
entire geographical area which can be occupied by the threatened or
endangered species. It is not the intent of the Act to designate
critical habitat for every population and every documented historical
location of a species. We have designated habitat that contain features
essential for the conservation of the species.
While proposed critical habitat for the southwestern willow
flycatcher does not mirror the exact goals identified in the Recovery
Plan, it does reflect the concepts of conservation biology used by the
Recovery Team (USFWS 2002: 74-77). Specifically, our methodology
targeted large populations and small populations that exist in high
connectivity which equaled a large population (USFWS 2002: 74-75). This
approach was chosen by the Team because large populations contribute
the most to metapopulation stability and those smaller sites arranged
in high connectivity may provide as much or more stability (USFWS 2002:
74-75). This choice subsequently supports important conservation
principles: (1) Populations should be distributed close to each other
to allow for movement, and (2) those populations should provide for
stable metapopulations, gene flow, connectivity, and protection against
catastrophic losses. As a result, across 6 southwestern states, our
proposal included river segments in 21 of the 29 Management Units with
numerical conservation goals.
(27) Comment: Some commenters recommended that all areas occupied
by the southwestern willow flycatcher be designated as critical habitat
and more unoccupied areas should be designated.
Our Response: Section 3(5)(c) of the Act states that not all areas
that can be occupied by a species should be designated as critical
habitat unless the Secretary determines that all such areas are
essential to the conservation of the species. Our regulations (50 CFR
424.12(e)) also state that, ``The Secretary shall designate as critical
habitat areas outside the geographic area occupied by the species only
when a designation limited to its present range would be inadequate to
ensure the conservation of the species.'' In this instance, we have
determined that all areas that can be occupied or are presently within
the geographical area of the southwestern willow flycatcher are not
essential for conservation of the bird.
(28) Comment: Some comments stated that our PCEs are too narrow in
scope and omit important features such as water or moist soils.
Our Response: Our PCEs specifically refer to the following: (1)
Riparian plant species needed for breeding, foraging, and shelter for
breeding, non-breeding, territorial, migrating, and dispersing
flycatchers, (2) the variety of structural vegetation features targeted
for nest placement, (3) the range of more generalized riparian habitat
used for migrating, foraging, dispersing, and non-breeding southwestern
willow flycatchers; and (4) their food requirements. River hydrology
and geomorphology, groundwater, surface water, channel-floodplain
connectivity, overbank flooding, hydrologic regime, fine sediments,
moist soils, micro-climate, and other processes such as erosion,
precipitation, drought, humidity, etc. are important for the presence,
development, location, abundance, growth, regeneration, suitability,
and maintenance of the vegetation and insects identified as the PCEs.
We described in great detail the setting and function of these
components and their role in supporting southwestern willow flycatcher
habitat in the proposal (69 FR 60712-60715).
(29) Comment: Several comments stated that we included areas where
the southwestern willow flycatcher and their PCEs were absent, such as
roads, developed areas, agricultural fields, bridges, or where the
bird's status is uncertain. Some requested that we examine the segments
more closely, particularly in Graham County, AZ, and more finely remove
areas that do not contain PCEs. Others recommended that we also exclude
right-of-way corridors adjacent to bridges or transmission lines.
Our Response: In the development of this final rule, we have
reviewed lands included in our proposal and have revised and removed
areas from critical habitat that we could determine did not contain
features essential to the conservation of the species or in some cases
entire river segments (see Summary of Changes section below). For
example, we received GIS layers and aerial photos where we could
identify, confirm, and subsequently eliminate portions of agricultural
fields in the Verde Valley, AZ, that fell within the designation; we
removed Pinto Creek and the South Fork of the Little Colorado River in
AZ; and we shortened the Big Sandy River segment in AZ, etc. We made an
effort to exclude all developed areas, such as towns, housing
developments, and other lands not reasonably believed to contain
features essential to the conservation of the southwestern willow
flycatcher.
However, due to the limitations in technology, it is not possible
to remove each and every one of these developed areas. Nor does the
Service have the ability to ground truth and confirm each recommended
developed area for removal. As a result, even at the refined mapping
scale, the maps of the final designation may still include developed
areas that do not contain primary constituent elements (see Criteria
Used to Identify Critical Habitat section). Areas that do not contain
the PCEs within the boundaries of critical habitat are not considered
to be critical habitat and thus, actions in those areas would not
trigger consultation unless they affected adjacent critical habitat.
With regard to the request that all right-of-ways be removed from
critical habitat, we are familiar with flycatcher habitat within right-
of-ways adjacent to bridges or underneath transmission lines;
therefore, those locations would have the PCEs.
(30A) Comment: We received numerous comments that the designation
of critical habitat for the southwestern willow flycatcher would
prevent the restoration of native habitat for the southwestern willow
flycatcher-
[[Page 60894]]
specifically, the conversion of exotic saltcedar/tamarisk to native
cottonwood-willow habitat.
Our Response: Our 4(b)(8) determination in this final rule, and the
approach provided in the Recovery Plan (USFWS 2002: Appendix H and K),
supports site-specific restoration of habitat from exotic habitat to
native vegetation (or possibly mixed native/exotic) of equal or better
quality for the flycatcher. The approach provided in the Recovery Plan
was designed to apply to general riparian restoration in addition to
those efforts specifically for the southwestern willow flycatcher.
While these efforts may require section 7 consultation due to temporary
adverse effects to flycatchers and their habitat, we do not believe
that a project would result in adverse modification if the results of
site-specific analysis and restoration culminate in equal or better
habitat quality for the flycatcher.
(30B) Comment: Those supportive of the use of biocontrol
(introduction of nonnative insects) to degrade or kill tamarisk (an
exotic plant species used by flycatchers for nesting, foraging, etc.)
through leaf consumption expressed: (1) Opposition to designation of
flycatcher critical habitat in general; (2) disapproval of the approach
to biocontrol that is discussed in the final Recovery Plan for the
flycatcher; (3) asserted that tamarisk does not provide suitable
nesting habitat (i.e., is inadequate) for flycatchers and other
wildlife; and (4) that by removing tamarisk, it will reduce the amount
of water consumed by tamarisk through evapo-transpiration from those
drainages, which will in turn, increase the amount of water in the
river.
Our Response: As indicated above in our response to comment number
30, the Recovery Plan (USFWS 2002: Appendix H and K), supports site-
specific restoration of exotic habitat to native vegetation (or
possibly mixed native/exotic) of equal or better quality for the
flycatcher. The Recovery Plan (USFWS 2002: Appendix H and K) provides
guidance to determine the cause for exotic plant proliferation, long-
term ecosystem solutions, measures to determine the success of
restoration activities, and restoration strategies. Absent any new
information on biocontrol, we continue to support the concern related
to the use of biocontrols and guidance provided in the Recovery Plan
regarding introduction of biocontrol into the breeding range of the
flycatcher (USFWS 2002:121).
(31) Comment: We received comments that our approach in targeting
occupied segments does not allow for the growth of southwestern willow
flycatcher populations.
Our Response: We disagree and believe our approach in targeting
river segments with large populations and collections of small sites in
high connectivity that equal a large population provides for the growth
of populations within designated critical habitat and outside of
critical habitat. The focus on protection of large sites with the
ability to produce dispersers was a conservation strategy of the
Recovery Team (USFWS 2002:75). The Recovery Team (USFWS 2002:75)
described that ``maintaining and augmenting existing breeding
populations is a faster, easier, and more reliable way to maintain and
achieve population goals * * *.'' ``Thus, maintenance and protection of
existing populations is a priority.'' Existing sites have the
opportunity to grow and produce dispersers to develop nesting areas
within designated critical habitat segments, or disperse to pioneer
sites outside of designated critical habitat. Because all potential or
existing flycatcher habitat is not designated as critical habitat, this
does not imply that non-designated areas are not important for
southwestern willow flycatcher conservation.
(32) Comment: Some commented that our departure from our
methodology in the Coastal CA Recovery Unit, specifically in the Santa
Ana Management Unit, was arbitrary and capricious.
Our Response: We disagree and believe we described why we departed
from our methodology, how we arrived at the proposed river segments,
and the goals of this approach. We described in our proposal (69 FR
60716) that due to the wide diversity and conditions of habitat across
the bird's range and complexity of the flycatcher's habitat needs, we
believed it was necessary to consider other factors in the Coastal CA
Recovery Unit. Because of the fractured and limited nature of habitat
in Coastal CA Recovery Unit and due to nearly all sites being in high
connectivity, we did not believe that every river segment was
essential. As a result, we relied on the Recovery Plan recommendations,
conservation goals, flycatcher habitat needs, and expert opinion to
generate appropriate critical habitat segments. We sought to provide
locations that would generate metapopulation stability by selecting the
drainages with the largest amount of territories (Santa Ana, Santa
Margarita, San Luis Rey, and Santa Ynez rivers) and nearby adjacent
stream segments to allow for population connectivity, metapopulation
stability, growth, dynamic river processes, and protection against
catastrophic losses. We identified that there were some locations that
held territories that were located within our 29 km (18 mi) radius that
we did not select, because when considered within the entire range of
habitats and stream segments selected, these were not believed to be
essential.
(33) Comment: One comment asserted that the proposed rule did not
support the concept that small sites are important.
Our Response: A metapopulation, as defined for the flycatcher, is a
group of spatially disjunct local southwestern willow flycatcher
populations connected to each other by immigration and emigration
(USFWS 2002:72). Results of the status of the southwestern willow
flycatcher population persistence or metapopulation stability vary
geographically (Lamberson et al. 2000). Metapopulations are most stable
where many connected sites and/or large populations exist (USFWS
2002:72). Many connected sites would include ``small'' sites, or those
with few territories, but are closely connected with other ``small''
sites. The Coastal CA, Gila, and Rio Grande Recovery Units were the
most stable, because of the abundance and proximity of breeding sites
(USFWS 2002:72). This critical habitat designation focused on those
areas with large populations or small sites in close proximity to each
other that equaled a large population. While our target was on large
populations or collections of smaller sites in close proximity, we
emphasize that any southwestern willow flycatcher breeding site is
important due to the bird's endangered status and the need to improve
metapopulation stability, gene flow, and protect against catastrophic
losses throughout the bird's range.
(34) Comment: Some commented that maps and legal descriptions fail
to indicate the width of critical habitat. On the same topic, others
wrote that because we described that critical habitat would be dynamic
due to river flow, the boundary would also change, and using the
floodplain boundary is inappropriate because the floodplain itself is
constantly changing and difficult to define.
Our Response: The lateral extent of critical habitat, contrary to
these comments, is a defined boundary. Southwestern willow flycatcher
habitat is expected to be dynamic ``within'' the defined lateral extent
boundaries. In our proposal, we provided a web site with a link to the
specific boundaries and widths of proposed critical habitat. For the
final rule, the same web site can be accessed with the specific
information. The web address is http://
[[Page 60895]]
criticalhabitat.fws.gov. We also published legal descriptions in the
proposed rule and this final rule identifying the lateral extent of
critical habitat.
(35) Comment: Some commented that the lateral extent of critical
habitat is too broad. One wrote that the Service may need to establish
a corridor, but it need not be this broad. To simply say that because
the river may wander it should encompass the entire alluvial plain is
simply overreaching.
Our Response: We used the best available technology (existing
digital sources and expert visual interpretation of aerial photographs
and satellite imagery) to map the riparian zone within river corridors
in proposed areas across six States. In developing the lateral extent,
we found that using existing data sources such as the 100-year
floodplain was in some places, too wide. However, in other areas, the
entire 100-year floodplain was appropriate because it encompassed
available flycatcher habitat. However, throughout the entire
designation, the lateral extent is constrained to areas either equal to
or less than the 100-year floodplain. Our visual interpretation
examined the boundaries of actual riparian vegetation growth in order
to ensure accuracy. Therefore, these locations are the areas where
rivers flow and sandy soils exist and riparian vegetation grows. We do
not extend our boundaries into traditionally developed areas
(commercial and housing) outside of the 100-year floodplain.
(36) Comment: Some commented that we inappropriately omitted
important plant species used by southwestern willow flycatchers under
primary constituent element number 1.
Our Response: In order to not be redundant, we provided great
detail in the text supporting the PCEs and the known plant species used
by nesting southwestern willow flycatchers (69 FR 60714) by citing the
Recovery Plan (USFWS 2002: D-3, 5, and 9). In response to this comment,
we have altered the language of this PCE to include those known
riparian plant species important for southwestern willow flycatchers.
(37) Comment: Comments were provided using the results of Arizona
Game and Fish Department's Mapping and Monitoring Southwestern Willow
Flycatcher Breeding Habitat in Arizona: A Remote Sensing Approach
(Dockens and Paradzick 2004) to demonstrate that river segments were
not occupied by the flycatcher and segments did not have the PCEs.
Our Response: We reviewed and considered this model, but did not
rely solely on it in the development of our proposed designation due to
the limitations of the results that the authors of the model described
in their report. They described, ``this model provides a snapshot in
time of predicted suitable (nesting) habitat * * * reoccurring
disturbances influence the distribution and abundance of SWWF
(southwestern willow flycatcher) breeding habitat in any one year.''
Therefore, the results of this model do not account for the dynamics of
habitat over time. The authors also described other limitations in the
use of the results of their model as a conservation tool. They wrote,
``The model only predicts suitable nesting habitat and does not predict
all habitat used by nesting SWWF. Nesting habitat is one part of a
larger matrix of habitat used by SWWF during the migration and breeding
season.''
(38) Comment: Some provided comment that we should not designate
critical habitat in Elephant Butte Reservoir on the Rio Grande in NM
for a variety of reasons. Additionally, some commented that the power
lines were an inadequate boundary for the southern boundary of the
middle Rio Grande segment, because it may not be a permanent location.
Our Response: The conservation space of Elephant Butte Reservoir
was not part of the proposal, and therefore, is not included in the
critical habitat designation. The description of the southern boundary
of the Middle Rio Grande segment as the power line crossing upstream of
Elephant Butte Reservoir is to provide readers with an easily
identifiable reference point. The mapping of critical habitat
boundaries is permanent with legal descriptions for the boundaries, and
mapped boundaries are found in GIS layers at http://criticalhabitat.fws.gov.
(39) Comment: Some commented that our proposal included segments of
tributaries and washes not described in the text, specifically areas
along the upper Rio Grande, Verde River, and San Pedro River.
Our Response: We agree. There were short stream segments of
adjacent side drainages described in the legal descriptions and in the
maps that were not described in the text of the proposal. We have re-
examined the proposed segments and removed these short side drainages
(creek, rivers, washes, etc.) that were not described in the text that
extend beyond the stream segments proposed. We note that at the
confluence of a tributary and main stem it is difficult to
differentiate between habitats, therefore, we used our best judgment on
where to specifically draw the line.
(40) Comment: Some commented that because numerical recovery goals
were reached in the San Luis Valley Management Unit and the Santa Ana
Management Unit, that critical habitat should not be designated within
these areas.
Our Response: Our methodology for critical habitat specifically
targeted the locations where large populations or small populations in
high connectivity that equaled a large population exist. This, we
believe, adheres to the principles of conservation biology described by
the Recovery Team (USFWS 2002: 74-77). The Recovery Team (USFWS 2002:
75) described that ``maintaining and augmenting existing breeding
populations is a faster, easier, and more reliable way to maintain and
achieve population goals. * * *'' ``Thus, maintenance and protection of
existing populations is a priority.''
The Santa Ana River and Santa Ana Management Unit possess a large
population of flycatchers, with territories extending along the length
of the Santa Ana River and along some of its tributaries. We note that
the numerical goal for the Santa Ana Management Unit is 50 territories,
and the most recent published information for this Management Unit
cites 41 territories for 2003 (Durst et al. 2005). Compiled rangewide
data does not yet exist for 2004. There are additional recovery goals
associated with Management Units other than number of territories, such
as maintenance of populations for at least 5 years, completed
management plans, and habitat objectives not yet achieved (USFWS 2002:
77-81).
The San Luis Valley Management Unit, as commenters pointed out, has
reached its numerical goal, reaching 73 territories in 2003 (Durst et
al. 2005) and surpassing the goal of 50 territories. But other goals
have not been met. For example, the population has not been maintained
for 5 years and habitat objectives have not been reached. Please note
though, that due to partnerships developed with the Service, we are
excluding river segments found in the San Luis Valley Management Unit
(see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions
Under Section 4(b)(2) of the Act section for a detailed discussion of
this exclusion below).
(41) Comment: Many commented that critical habitat should not be
designated in areas such as the Middle Rio Grande due to the need to
manage for fire.
Our Response: It is our belief that the need for fire management,
especially areas such as the Middle Rio Grande or
[[Page 60896]]
the lower Colorado River, is consistent with the needs of the
southwestern willow flycatcher, and if done appropriately, is not
expected to result in adverse modification of critical habitat. The
Recovery Plan (USFWS 2002: Appendix L) provides a description of
changes that have lead to increased risk and occurrence of fire in
riparian areas. It also describes measures to reduce occurrence of fire
in riparian areas and appropriate management of areas to reduce the
risk and damage of wildfire to riparian habitat and the southwestern
willow flycatcher (USFWS 2002: Appendix H, K and L). Therefore, we do
not believe, if conducted appropriately, that fire management is
inconsistent with necessary flycatcher management activities.
(42) Comment: One comment remarked that the C-Spear Ranch along the
San Pedro River, AZ, is not occupied by southwestern willow
flycatchers.
Our Response: The C-Spear Ranch had a southwestern willow
flycatcher territory detected in 2002 (Smith et al. 2003).
Additionally, flycatchers are found nesting in close proximity upstream
and downstream of the Ranch, and as a result, it is reasonably certain
that, due to the use of riparian areas as migration corridors and
dispersal areas, that non-breeding southwestern willow flycatchers
visit the Ranch temporarily. Therefore, the C-Spear Ranch is within the
geographical area occupied by the species. We refer to our discussion
of the geographical area occupied by the southwestern willow flycatcher
below for further explanation.
(43) Comment: We received many site-specific comments regarding the
occupancy of stream segment proposed for designation, while others
provided more general comments on the concept of occupancy. For
example, some claimed that flycatchers do not occupy a particular
stretch of the Santa Ynez River, but described that two migrants were
recorded. Others remarked we improperly designated unoccupied areas,
claiming that they were occupied. Some commented that our conclusion
that an area we described as having ``no territories'' should be
removed because it was not occupied. Others claimed that we determined
that migration habitat was essential, but was not adequately addressed
in the proposal. Additionally others indicated that we proposed areas
not known to be occupied at the time of listing and provided no
justification.
Our Response: In this final rule we provide specific language to
clarify the geographic area occupied by the southwestern willow
flycatcher (see Geographic Area Occupied by the Species section below)
(including areas used by breeding, non-breeding, migrating, foraging,
dispersing, and territorial southwestern willow flycatchers), and also
describe why specific areas not known to be occupied at the time of
listing are essential to the conservation of the subspecies (see
Justification of Including Areas Not Known To Be Within the
Geographical Area Occupied by the Species at the Time of Listing
section below). Our methodology further describes how we arrived at
determining essential and more specific locations to propose and
subsequently designate as critical habitat.
(44) Comment: One comment described that flycatcher habitat at
Roosevelt Lake, AZ, is not essential for the flycatcher because it is
ephemeral.
Our Response: We disagree. The southwestern willow flycatcher
population at Roosevelt Lake, depending on the year, can be the largest
population of flycatchers across the subspecies' range. In 2004, it
represented 40 percent (209/522) of all known flycatcher territories in
AZ (Munzer et al. 2005) and 12 percent of the entire subspecies in the
most recent 2003 rangewide summary report (Durst et al. 2005). This
population not only provides territories to reach conservation goals
for the Roosevelt Management Unit, but provides dispersers to other
nearby Management Units, helps provide gene flow, populations
stability, and protection against catastrophic losses. As a result, we
believe it is a very important location and we made this conclusion in
a biological opinion for raising Roosevelt Dam and for an HCP for dam
operations. We described in our proposal (69 FR 60712) with respect to
all flycatcher habitat that, ``Because riparian vegetation is prone to
periodic disturbance (e.g., flooding), flycatcher habitat is ephemeral
and its distribution is dynamic in nature.''
(45) Comment: The proposed inclusion of reservoir bottoms as
critical habitat could unnecessarily hinder reservoir operations by
limiting the timing and magnitude of water elevation changes.
Our Response: Our 4(b)(8) determination in the proposed rule (69 FR
60732) describes how certain dam operations, like Roosevelt Dam in
central AZ, are not likely to destroy or adversely modify critical
habitat. Roosevelt Dam allows water to significantly increase and
decrease in the conservation space depending on availability and
demand. This fluctuation results in the exposure of fine/moist soils in
the flat/broad floodplain of the exposed ground and has led to the
development of hundreds of hectares (acres) of flycatcher habitat. The
same operating regime that creates the habitat will also inundate and
cause loss of habitat; at this particular location, habitat is expected
to persist on the perimeter and over time will increase and decrease
(USFWS 2003). It is this very process of the ebb and flow of the
conservation pool that ensures persistence of habitat over time,
although habitat will vary spatially and temporally, as does flycatcher
habitat in natural settings.
(46) Comment: We received comment with respect to portions or
lengths of many stream segments. In particular, we received comments
about the Big Sandy River, Pinto Creek, and South Fork of Little
Colorado River, AZ; Upper Gila River (Middle Gila Box), NM; Santa Ana
River below Seven Oaks Dam, Temecula Creek, Temescal Creek, Santa
Ysabel River, Mill Creek, and Cuyamaca Lake, CA; and Kern River, CA. We
also re-evaluated segments that were not included in the comments.
Our Response: In refinements made to the delineation of critical
habitat in the development of this final rule, we shortened segments
(Big Sandy River, Verde River, Bill Williams River, Temecula Creek,
Santa Ysabel River, Mill Creek, Oak Glen Creek, and Temescal Creek),
removed segments (South Fork of Little Colorado River, Pinto Creek, San
Diego River, Yucaipa Creek, Wilson Creek, San Timoteo Wash, Cuyamaca
Lake, Cristianitos Creek), and removed sections (Middle Gila Box and
Santa Ana River Wash) of stream segments in response to comments and
our re-evaluation of these areas because we determined they were not
essential for the conservation of the flycatcher. These changes are
also listed in the Summary of Changes section below, and described in
more detail with justification in the appropriate Unit Description
section below.
Comments Related to Military Lands
(47) Comment: One commenter stated that they oppose the designation
of critical habitat for the southwestern willow flycatcher on Naval
Weapons Station, Seal Beach, Detachment Fallbrook because of the
existence of an Integrated Natural Resources Management Plan (INRMP),
potential complications in conservation efforts with other listed
species, and adverse impacts on national security.
Our Response: We have reviewed Detachment Fallbrook's Fire
Management Plan and INRMP. The
[[Page 60897]]
Secretary determined, in writing, that Detachment Fallbrook's INRMP
provides a benefit to the southwestern willow flycatcher. Therefore,
consistent with Public Law 108-136 (Nov. 2003): Nat. Defense
Authorization Act for FY04 and Section 4(a)(3) of the Act, the
Department of Defense's Detachment Fallbrook lands are exempt from
critical habitat based on the adequacy of their completed and approved
INRMP (see the Application of Section 3(5)(A) and 4(a)(3) and
Exclusions Under Section 4(b)(2) of the Act section for a detailed
discussion of this exemption below).
(48) Comment: Some commenters recommended that the Service should
exclude all essential lands on Camp Pendleton, including State lease
lands because of their Integrated Natural Resource Management Plan
(INRMP).
Our Response: We agree with the commenter and have exempted all
essential areas, including State lease lands, from designated critical
habitat on Camp Pendleton based on their INRMP (see Application of
Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the
Act section for a detailed discussion). Because the INRMP provides an
overall conservation benefit to the southwestern willow flycatcher,
these lands are exempt from critical habitat pursuant to section
4(a)(3).
(49) Comment: One commenter strongly supported the designation of
critical habitat for the southwestern willow flycatcher within those
portions of Camp Pendleton that are leased to the State (San Onofre
State Beach) because this area is important for southwestern willow
flycatchers.
Our Response: We agree with the commenter that this area is
important for the conservation of the southwestern willow flycatcher.
However, we have exempted these lands that are leased to the State
because they are within the area covered by Camp Pendleton's INRMP (see
the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under
Section 4(b)(2) of the Act section for a detailed discussion). Because
the INRMP provides an overall conservation benefit to the southwestern
willow flycatcher, these lands are exempt from critical habitat
pursuant to section 4(a)(3).
Comments Related to Tribal Lands
(50) Comment: A variety of commenters stated that the Service needs
to work more closely to meaningfully contact the Bureau of Indian
Affairs and/or Tribes to fully meet the tenet of Executive Order 13175
and Secretarial Order 3206.
Our Response: We agree that we need to work closely with Tribes and
Pueblos potentially impacted by the designation of critical habitat. We
increased our efforts to work with the Tribes/Pueblos throughout the
process of developing this rule. Each Tribe possibly affected by this
rule was contacted when we published our notice of intent to designate
critical habitat and conduct NEPA. They were also provided with the
location of scoping meetings we were holding near their area. We later
contacted all Tribes/Pueblos specifically requesting management plans
and offering Government-to-Government consultations. We provided two
newsletters updating this process and contacted each Tribe/Pueblo when
the proposed rule was published. We provided all Tribes/Pueblos
included in the draft proposal a Management Plan template.
Representatives from local field offices in AZ, CA, and NM contacted
Tribes/Pueblos in person, through telephone calls, and/or during
meetings to inform them about this rule and offer help with development
of management plans. In many cases, the Service provided review and
assisted Tribes in the development of management plans. We contacted
each Tribe/Pueblo when the draft Economic Analysis and draft
Environmental Assessment were made available and informed them of the
dates and locations of public hearing and open house meetings. We held
an open house meeting specifically for the Pueblos in NM. We intend to
keep improving our relationships with the Tribes and the Bureau of
Indian Affairs following the tenets of Secretarial Order 3206 and
Executive Order 13175.
Comments Related to HCPs, NCCP Programs, and Other Exclusion Areas
(51) Comment: Several comments were supportive of the policy that
lands covered by approved and nearly completed HCPs that provide take
authorization for the southwestern willow flycatcher should be excluded
from critical habitat. Several of these commenters also requested that
HCP exclusions should also apply to draft HCPs, lands enrolled in the
NCCP program, and lands covered by the Joint Water Agency (JWA) draft
plan.
Our Response: While we trust that jurisdictions will attempt to
fulfill their commitment to complete conservation plans, this voluntary
enrollment does not assure that such plans will be finalized.
Protections for southwestern willow flycatcher habitat provided through
participating jurisdiction's enrollment in the California's Natural
Communities Conservation Program (NCCP) processes are temporary and are
not assured; such protections may be lost if the jurisdiction elects to
withdraw from the NCCP program. Guidelines for the NCCP program direct
habitat loss to areas with low long-term conservation potential that
will not preclude the development of adequate NCCP/HCP plans and ensure
that connectivity between areas of high habitat value will be
maintained. We will consider excluding lands within pending HCP areas
where we have received a permit application from the participants, an
environmental analysis has been completed and released for public
review and comment under the authority of NEPA, and we have completed a
preliminary review of the HCP to ensure that the issuance of the
associated incidental take permit would not result in a jeopardy or
adverse modification finding for the subject species or its designated
critical habitat. By completing these criteria, jurisdictions
demonstrate their intent to finalize their HCP/NCCPs.
(52) Comment: Several comments stated that the designation of
critical habitat removes incentives to participate in NCCP and HCP
processes, in part because of added regulatory uncertainty, increased
costs to plan development and implementation, weakened stakeholder
support, delayed approval and development of the plan, and greater
vulnerability to legal challenge.
Our Response: HCPs and NCCPs in California are one of the most
important tools for reconciling land use with the conservation of
listed species on non-Federal lands. We look forward to working with
applicants to ensure that their plans meet the issuance criteria and
that the designation of critical habitat on lands where a HCP/NCCP is
in development does not delay the approval and implementation of their
HCP/NCCP.
(53) Comment: One commenter asked whether the designation of
critical habitat would be considered a changed and unforeseen
circumstance with respect to the various HCPs presently approved or
pending.
Our Response: If an area covered by a HCP was designated as
critical habitat, it would cause the Service to reinitiate section 7
consultation on the issuance of that permit and evaluate critical
habitat. However, approved or pending HCPs that were determined to
provide a benefit to the conservation of the southwestern willow
flycatcher and were excluded from the critical habitat designation
would not cause a changed circumstance or reinitiation of section 7
consultation because no critical habitat would be designated in those
areas (see
[[Page 60898]]
Application of Sections 3(5)(A), 4(a)(3), and Exclusions Under Section
4(b)(2) of the Act). The lone HCP where critical habitat is designated
is along the Virgin River in Clark County, NV. In this instance, the
Service would reinitiate section 7 consultation. See comment 56 below
for further explanation. However, due to our ``no surprises''
regulation, we would expect no additional measures required above and
beyond those already established in the HCP.
(54) Comment: Several comments stated multiple reasons for why
essential southwestern willow flycatcher habitat within several HCPs,
military installations, tribes, etc. should not be excluded from
critical habitat. They stated that the benefit of designating these
areas as critical habitat outweighs the benefits of excluding them
because exclusions are based partly on speculative and unproven future
activities and critical habitat provides a greater benefit than
measures contained in draft and approved conservation plans. They also
stated that the Service unlawfully predetermined the benefits of
excluding essential habitat because our determination was made prior to
soliciting public review.
Our Response: In many cases, partnerships with individual
landowners and conservation agreements with a variety of stakeholders
can provide a much greater conservation benefit for the southwestern
willow flycatcher and other species, as they offer proactive positive
management actions on private lands that cannot be achieved through a
critical habitat designation. We have determined that the exclusion of
certain lands covered by HCPs, INRMPs, tribal management plans, and
others from critical habitat designation will not result in the
extinction of the southwestern willow flycatcher and that a greater
conservation benefit to the flycatcher than from a critical habitat
designation will be provided (see the Application of Section 3(5)(A)
and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for
a detailed discussion).
However, we did not reach this conclusion prior to receipt of
public comment as contended in this comment; areas excluded from the
draft proposal because of their inclusion in HCPs or coverage by INRMPs
were identified as such, proposed justifications offered for public
review, and notice was provided that these areas might be included in
the final designation based on public comments.
(55) Comment: One commenter asked whether areas covered under
existing section 7 permits can be excluded from critical habitat in a
manner similar to areas under existing section 10 permits.
Our Response: Consultation under section 7 of the Act does not
always result in the issuance of an incidental take permit for listed
species. Federal actions where we conclude that the project is not
likely to jeopardize the continued existence of a listed species are
exempted from the prohibition against take of listed animal species
under section 9 of the Act when the Federal agency, and any permittee
comply with the terms and conditions of the incidental take statement
accompanying the Service's biological opinion. Proposed Federal
projects do not necessarily commit a Federal agency to protect an area
for a listed species, and in many instances the Federal agency is only
permitting an action and does not have land management authority.
Section 7 of the Act only commits a Federal agency to not jeopardize a
species or cause adverse modification of critical habitat due to a
specific project it initiates, permits, or funds. Typically HCPs
provide greater conservation benefits to a covered species by assuring
the long-term protection and management of a covered species and its
habitat, and funding for such management is assured through the
standards found in the 5-Point Policy for HCPs (64 FR 35242), the HCP
No Surprises regulation (63 FR 8859), and relevant regulations
governing the issuance and implementation of HCPs, such as those
requiring the permittee to minimize and mitigate the taking to the
maximum extent practicable. However, such assurances are typically not
provided in connection with Federal projects subject to section 7
consultations which, in contrast to activities on non-Federal lands
covered by HCPs, are not required to and often do not commit to long-
term special management or protections. Thus, a consultation unrelated
to a HCP typically does not accord the lands it covers the extensive
benefits a HCP provides. However, management of some Federal lands
included in this designation, such as Lake Isabella, Roosevelt Lake,
and Horseshoe Lake provide protection of southwestern willow flycatcher
habitat in conjunction with section 7 consultation and/or HCPs (see the
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section
4(b)(2) of the Act section). In cases where we have determined that
conservation by a Federal landowner provides a substantial, long-term
benefit to the species, we have excluded these Federal lands from the
critical habitat designation (see the Application of Section 3(5)(A)
and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section).
(56) Comment: We received a few comments recommending we exclude
the Virgin River as a result of the Clark County HCP.
Our Response: The Clark County Multiple Species Habitat
Conservation Plan (MSHCP) was completed in November 2000, and the
incidental take permit was issued on January 9, 2001. The southwestern
willow flycatcher, as well as five additional riparian obligate
species, was included in the MSHCP and permit application. The permit
issued for the MSHCP covered the County, the Cities of Clark County,
and Nevada Department of Transportation (permittees) for take of the
covered species on all non-Federal Land with the County, up to a
maximum loss of 58,681 ha (145,000 ac) of habitat within a 30-year
period. However, due to the relatively large percentage of riparian
habitat that occurs on non-Federal lands, the permit obligated the
County to fulfill certain conditions prior to authorization of take of
the avian riparian obligate species. These conditions include (1) the
development of conservation management plans that identify the
management and monitoring actions needed for desert riparian habitats
along the Muddy River, Virgin River, and Meadow Valley Wash; and (2)
the acquisition of private lands in desert riparian habitats along the
Muddy River, Virgin River, and Meadow Valley Wash, with the total
number and location of hectares (acres) within each watershed to be
identified in the conservation management plans. These two conditions
have not yet been fulfilled, as the development of the conservation
management plans has not yet begun. A habitat conservation planning
process has been initiated for the Virgin River, but planning efforts
have not yet identified the activities that may impact the species, or
the conservation actions that would be required to offset those
impacts. Until these conditions are met, the permittees are not
authorized for take of the flycatcher, or the other covered riparian
obligate species in the event they are listed under the Act. Given the
lack of progress the permittees have demonstrated in fulfilling these
conditions, we have determined that the status of the conservation
planning for the Virgin River falls short of meeting the criteria for
exclusion under section 4(b)(2) of the Act.
[[Page 60899]]
Comments Related to Economic Impacts and Analysis; Other Relevant
Impacts
Policy Issues
(57) Comment: Several commenters state that the economic analysis
should incorporate the recent ruling in the Ninth Circuit Court of
Appeals, Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service.
Our Response: The economic analysis acknowledges that a recent
Ninth Circuit judicial opinion, Gifford Pinchot Task Force v. United
States Fish and Wildlife Service, has invalidated the Service's
regulation defining destruction or adverse modification of critical
habitat. The Service is currently reviewing the decision to determine
what effect it (and to a limited extent Center for Biological Diversity
v. Bureau of Land Management (Case No. C-03-2509-SI, N.D. Cal.)) may
have on the outcome of consultations pursuant to section 7 of the Act.
(58) Comment: Several comments stated that the economic analysis
fails to use the proper baseline for analysis as determined in New
Mexico Cattlegrowers' Association (10th Circuit Court of Appeals). Two
comments stated that the economic analysis should differentiate between
impacts of listing and impacts of critical habitat designation. Another
comment stated that the economic analysis should describe the costs of
designation above and beyond those costs associated with past and
future conservation activities, including listing, ongoing activities,
and potential future conservation costs.
Our Response: The economic analysis estimates the total cost of
species conservation activities without subtracting the impact of pre-
existing baseline regulations (i.e., the cost estimates are fully co-
extensive). In 2001, the U.S. 10th Circuit Court of Appeals instructed
the Service to conduct a full analysis of all of the economic impacts
of proposed critical habitat designation, regardless of whether those
impacts are attributable co-extensively to other causes (New Mexico
Cattle Growers Ass'n v. USFWS, 248 F.3d 1277 (10th Cir. 2001)). The
economic analysis complies with direction from the U.S. 10th Circuit
Court of Appeals.
This analysis identifies those economic activities believed to most
likely threaten the flycatcher and its habitat and, where possible,
quantifies the economic impact to avoid, mitigate, or compensate for
such threats within the boundaries of the critical habitat designation.
In instances where critical habitat is being proposed after a species
is listed, some future impacts may be unavoidable, regardless of the
final designation and exclusions under 4(b)(2). However, due to the
difficulty in making a credible distinction between listing and
critical habitat effects within critical habitat boundaries, this
analysis considers all future conservation-related impacts to be
coextensive with the designation.
(59) Comment: One comment stated that the economic analysis did not
identify the criteria or analytical methods by which the Secretary will
make the decision on where benefits of including areas in the critical
habitat designation for flycatcher outweigh the benefits of excluding
areas from the critical habitat designation. One comment stated that
the economic analysis failed to determine whether benefits of inclusion
outweigh the benefits of exclusion within each flycatcher management
unit. Another comment specifically noted that the economic analysis
does not identify biological terms that are used to balance the
benefits and costs of designation. Finally, one comment stated that the
cost-effectiveness approach is the appropriate method to use in
weighing the costs and benefits of critical habitat designation, and
that the economic analysis does not use this method.
Our Response: In the context of a critical habitat designation, the
primary purpose of the rulemaking (i.e., the direct benefit) is to
designate areas in need of special management that contain the features
that are essential to the conservation of listed species.
The designation of critical habitat may result in two distinct
categories of benefits to society: (1) Use; and (2) non-use benefits.
Use benefits are simply the social benefits that accrue from the
physical use of a resource. Visiting critical habitat to see endangered
species in their natural habitat would be a primary example. Non-use
benefits, in contrast, represent welfare gains from ``just knowing'
that a particular listed species'' natural habitat is being specially
managed for the survival and recovery of that species. Both use and
non-use benefits may occur unaccompanied by any market transactions.
A primary reason for conducting this analysis is to provide
information regarding the economic impacts associated with a proposed
critical habitat designation. Section 4(b)(2) of the Act requires the
Secretary to designate critical habitat based on the best scientific
data available after taking into consideration the economic impact, and
any other relevant impact, of specifying any particular area as
critical habitat. Economic impacts can be both positive and negative
and by definition, are observable through market transactions.
Where data are available, this analysis attempts to recognize and
measure the net economic impact of the proposed designation. For
example, if the fencing of a species' habitat to restrict motor
vehicles results in an increase in the number of individuals visiting
the site for wildlife viewing, then the analysis would recognize the
potential for a positive economic impact and attempt to quantify the
effect (e.g., impacts that would be associated with an increase in
tourism spending by wildlife viewers). In this particular instance,
however, the economic analysis did not identify any credible estimates
or measures of positive economic impacts that could offset some of the
negative economic impacts analyzed earlier in this analysis.
Under Executive Order 12866, OMB directs Federal agencies to
provide an assessment of both the social costs and benefits of proposed
regulatory actions. OMB's Circular A-4 distinguishes two types of
economic benefits: Direct benefits and ancillary benefits. Ancillary
benefits are defined as favorable impacts of a rulemaking that are
typically unrelated, or secondary, to the statutory purpose of the
rulemaking. In the context of critical habitat, the primary purpose of
the rulemaking (i.e., the direct benefit) is the potential to enhance
conservation of the species. The published economics literature has
documented that social welfare benefits can result from the
conservation and recovery of endangered and threatened species. In its
guidance for implementing Executive Order 12866, OMB acknowledges that
it may not be feasible to monetize, or even quantify, the benefits of
environmental regulations due to either an absence of defensible,
relevant studies or a lack of resources on the implementing agency's
part to conduct new research. Rather than rely on economic measures,
the Service believes that the direct benefits of the proposed rule are
best expressed in biological terms that can be weighed against the
expected cost impacts of the rulemaking.
We have accordingly considered, in evaluating the benefits of
excluding versus including specific area, the biological benefits that
may occur to a species from designation (see below, Exclusions Under
section 4(b)(2) of the Act), but these biological benefits are not
addressed in the economic analysis.
General Issues
(60) Comment: One comment stated that the economic analysis should
[[Page 60900]]
combine efficiency and distributional impacts for each management unit.
Our Response: As stated in Section 1 of the economic analysis,
efficiency and distributional economic impacts are fundamentally
different measurements of economic impact, and as such, cannot be added
or directly compared. See section 1 of the economic analysis for a more
detailed discussion of the distinctions between these terms.
(61) Comment: One comment stated that the economic analysis should
consider the cumulative effects of flycatcher habitat and other
existing and proposed critical habitat designations in Southern
California.
Our Response: The economic analysis quantifies economic effects
associated with flycatcher conservation activities. This information is
intended to assist the Service in determining whether the benefits of
excluding particular areas from the designation outweigh the benefits
of including those areas. It is therefore beyond the scope of the
economic analysis to evaluate the cumulative effects of all previous
designations.
(62) Comment: Two comments stated that the economic analysis
underestimates the length of delay on projects that are subject to
Section 7 consultations (e.g. water facility maintenance, fire
management activities).
Our Response: The revised analysis includes a discussion of the
potential impacts of delay in Section 4 (Water Management), Section 6
(Development) and Section 10 (Other Activities).
Mining Issues
(63) Comment: Several comments stated that the economic analysis
failed to consider potential economic impacts of the flycatcher
critical habitat designation on mining activities in the southwestern
United States.
Our Response: The draft economic analysis did not discuss potential
impacts to mining activities. Based on information provided during the
public comment period from mining interests, the economic analysis has
been revised to include a chapter that considers potential impacts to
the mining industry.
Water Issues
(64) Comment: At least two public comments question how flycatcher
critical habitat designation may impact existing state and Federal
water law.
Our Response: The Recovery Plan recognizes a number of legal
constraints on the Service's or other action agencies ability to modify
water management practices to protect for the flycatcher, including
water rights, delivery contracts, legal commitments to power
generation, and requirements for flood control. These types of
arrangements exist on many of the rivers included in critical habitat
designation areas. However, where legal precedents exist, no changes to
water law are anticipated to result from this rulemaking. For example,
currently there is no legal requirement for USBR to maintain water
levels below flycatcher habitat at the lake created by Hoover Dam
[Southwest Center for Biological Diversity v. U.S. Bureau of
Reclamation, 143 F.3d 515 (9th Cir. 1998)]. The Department of the
Interior has interpreted the U.S. Supreme Court's injunction [Arizona
v. California, 376 U.S. 340 (1964)] as precluding the release of water
from Lake Mead for the sole purpose of protecting flycatcher habitat.
Congress has also enacted legislation to prohibit USBR from releasing
San Juan/Chama water for flycatcher management purposes at Heron
Reservoir.
(65) Comment: One comment questioned a number of water price and
supply assumptions in the economic analysis. First, the comment stated
that the economic analysis makes water price assumptions that are
inappropriate given the large water supply potentially impacted by the
critical habitat designation, the probable difference in the marginal
value of water across different scenarios, and the variation in water
prices over time. This comment also stated that the economic analysis
makes water supply assumptions that fail to consider the costs of
alternate water supply sources, barriers to water reallocation and
marketing, and water supply conditions in relatively dry years.
Our Response: Scenario 2 provides context for understanding the
magnitude of impacts that could occur if operators are forced to alter
water management in order to avoid adverse modification of habitat. As
stated in Section 4 of the economic analysis, considerable uncertainty
surrounds Scenario 2 and the probability of various outcomes is
unknown. As discussed in the economic analysis, detailed assessment of
the economic impacts on facilities and end users would require detailed
system-wide hydrologic and economic models. That is, the analysis would
require models that predict changes in water allocation under
alternative water management regimes and the behavioral responses of
various water users when faced with potential shortfalls and/or higher
water prices. Such models do not exist for most areas potentially
affected by flycatcher conservation activities. As a result, this
analysis utilizes best available data and simplifying assumptions to
provide estimates that bound the magnitude of potential impacts that
could result from alterations to water operations.
Given the geographic and hydrological variation across systems, it
is unlikely that all facilities will lose storage capacity in the same
year. Furthermore, the economic analysis assumes that flycatcher
conservation measures will not affect regional water markets or prices
because the potential storage capacity lost represents a very small
component of the total available storage capacity. Refer to Exhibits 4-
3, 4-7, and Appendix exhibits A-2, A-3 and A-4.
This analysis conservatively assumes that any spilled water is lost
from consumptive (i.e., municipal, industrial, commercial, etc.) use
and develops an approximate estimate of related economic losses using
information on water rights prices and other replacement costs. This
analysis assumes that these costs are a reasonable proxy for the value
of water in conservation storage, and the value lost when storage is
limited. Note that the market value of consumptive water rights is
dependent on a variety of considerations, including priority and point
of diversion, among other factors. If the actual cost of water is
higher (or lower) than the reported cost, the economic impacts will
also be higher (or lower).
The economic analysis estimates costs to water storage facilities
based on average conditions. In reality, some years are wetter or dryer
than others. Dry-year constraints may create an additional economic
burden for water managers. The revised economic analysis presents
information on the likely amount of spill that would be needed in the
50th and 95th percentile driest water years, to provide a sense of the
sensitivity of the results presented.
(66) Comment: Several comments highlight water supply and flood
control structures and projects that are not considered in the economic
analysis, and for which they claim potential impacts are possible
pursuant to critical habitat designation for flycatcher. In addition,
two comments state that the economic analysis failed to consider the
potential loss of the ability to divert surface and groundwater in the
Little Colorado MU and the Upper Gila MUs.
Our Response: The revised economic analysis incorporates a
discussion of potential economic impacts on water users in the Little
Colorado, Upper Gila MUs, and other concerned areas for
[[Page 60901]]
which public comments were submitted.
Section 4 of the economic analysis provides an analysis of economic
impacts associated with flycatcher conservation activities related to
water management activities, including dam operations, hydropower
production, water diversion, groundwater pumping, river channelization,
and bank stabilization. As discussed in Section 4, detailed assessment
of the economic impacts on facilities and end users would require
detailed system-wide hydrologic and economic models. This analysis
utilizes best available data and simplifying assumptions to provide
estimates that bound the magnitude of potential impacts that could
result from alterations to water operations in proposed critical
habitat designation areas.
(67) Comment: One commenter states that the assumption that, in the
case of Horseshoe Reservoir, reservoir managers will adapt water
management to avoid water losses caused by a reduction in reservoir
capacity over time is unrealistic because the storage capacity of the
reservoirs is small in relation to the flow of the river system, and
thus water losses would occur. Second, the commenter states that the
economic analysis inappropriately downplays the loss of water resulting
from flycatcher critical habitat designation by stating that some
windfall use by downstream users may occur. Another comment states that
the assumption made in the economic analysis related to Scenario 2 do
not consider the recent drought and current low water levels, or
ongoing population growth and resulting increases in water demand.
Our Response: The ability of storage facilities to adapt water
management practices is unique for each facility based on hydrology,
water management system, and current legal water agreements. Some
facilities may be able to adapt management practice to reduce water
losses due to flycatcher conservation measures, while others may not.
As stated in Section 4 of the economic analysis, analysis does not
subtract any costs associated with ``windfall'' downstream use of water
following spillage--that is, this analysis assumes that all water
released will be not be used by downstream users (i.e., lost to the
ocean).
However, we agree that flycatcher conservation measures may impose
additional costs and changes on top of significant ongoing trends,
including long-term drought, in the Southwest. The economic analysis
notes in Section 4 that flycatcher conservation measures may accelerate
and compound ongoing trends in natural resource use in the Southwest,
including increasing population growth and long-term droughts.
Tribal Issues
(68) Comment: Numerous comments state that the economic analysis
does not address the full suite of impacts to affected Tribes. Two
comments state that estimates included in the economic analysis grossly
understate the real economic costs to Tribal governments of critical
habitat designation on Tribal lands. Another comment states that
administrative costs to Tribes are not adequately discussed in the
economic analysis. Three Tribes were concerned that they were
overlooked in the economic analysis: Taos Pueblo, the Pueblo of Isleta,
and the Santo Domingo Tribe.
Our Response: Section 7 of the economic analysis presents all
available information regarding potential flycatcher conservation
activities that have affected or which may affect the fifteen Tribes
whose lands fall within proposed critical habitat designation areas.
Attempts were made to contact each Tribe with lands in proposed
critical habitat designation, as well as a number of other Tribes
outside of critical habitat designation that expressed concern about
potential impacts on them. Exhibit 7-3 summarizes potential impacts on
the Tribes, and highlights where costs to the Tribes are unknown.
Section 7 of the economic analysis also notes that publicly available
information was not always available to fully assess the potential
costs of flycatcher conservation activities. The revised economic
analysis now includes a statement that ``in many cases, information was
not available for costs of flycatcher conservation activities [to
Tribes], such as species surveys. In addition, administrative costs [to
Tribes] of compliance with the Act are often not known. Overall, the
absence of cost information related to the potential impacts of
flycatcher conservation on Tribal lands results in a probable
underestimate of future costs to Tribal entities in this section.''
Known potential administrative costs are included Section 3 of this
analysis. However, some additional administrative costs of compliance
with ESA are unknown and therefore not included in estimates. To the
extent that these unknown administrative costs relate to southwestern
willow flycatcher, administrative costs estimates for the Tribes may be
underestimated. Section 7 acknowledges this limitation.
The economic analysis did not include Taos Pueblo or Santo Domingo
in the its analysis of potential economic impacts to tribal activities
since they fall outside of critical habitat designation areas. The
economic analysis discussed potential impacts on the Pueblo of Isleta
in Section 7 of the economic analysis. However, public comments
submitted by the Tribe expressed concerns related to economic,
cultural, and treaty impacts of critical habitat designation.
Additional information provided in these comments were incorporated
into the economic analysis.
Grazing Issues
(69) Comment: Numerous comments state that the economic analysis
underestimates impacts of flycatcher critical habitat designation to
grazing and does not consider the impact that even a small reduction in
AUMs may have on ranching operations.
Our Response: Section 5 of the economic analysis examines potential
impacts on grazing activities that include exclusion or removal of
livestock grazing from riparian areas year-round or during the
flycatcher breeding season. In many cases, the estimates include
impacts that may be associated with other riparian habitat initiatives
and other endangered species. Estimates also include potential impacts
on private lands grazing, although the Service questions the assumption
that private grazing will be affected in the future. The analysis
includes a range that includes the potential for all private grazing to
be removed from the riparian are due to flycatcher conservation
activities. As a result, Section 5 acknowledges that the loss of 89,000
AUMs is conservative, that is, estimates are more likely to overstate
than understate impacts due to flycatcher.
Section 5 of the revised economic analysis now recognizes the
possibility that small reductions in AUMs could affect the viability of
some ranching operations. The analysis now places impacts that could
occur in the context of the economics of ranching, and points out that
``ranchers often have debts to repay that rely on the current number of
AUMs grazed. NMCA states that even small cuts in the number of AUMs
grazed by these ranchers can affect the financial stability of those
operations.''
(70) Comment: One commenter states that estimated impacts on
grazing activities are overstated. The commenter states that the
economic analysis inappropriately assigns grazing impacts to
flycatcher, as opposed to other species or causes.
[[Page 60902]]
Our Response: Section 5.2.2 of the economic analysis discusses
factors that affect the number of permitted and authorized AUMs
approved by USFS and BLM for a given Federal grazing allotment. These
factors include the presence of endangered species, tree encroachment,
fire suppression, forage availability, and forage by other ungulates.
The analysis states that ``on a particular allotment containing
flycatcher habitat, reductions to authorized or permitted AUMs made by
USFS or BLM may be: (1) Directly related to flycatcher conservation;
(2) indirectly related to flycatcher conservation; (3) not related to
flycatcher conservation at all; or (4) resulting from a combination of
factors.'' The analysis then explains each scenario in detail, and
suggests that in most cases, reductions in AUMs result from a
combination of factors. The analysis also concludes that because of the
spatial and temporal overlap of past reductions in AUMs with flycatcher
habitat, it is difficult to separate flycatcher-related causes from
other causes of changes that occur in flycatcher critical habitat
designation areas. Section 5 acknowledges that the loss of 89,000 AUMs
is conservative, that is, estimates are more likely to overstate than
understate impacts due to flycatcher.
(71) Comment: One comment states that the economic analysis does
not consider impacts to ranching activities outside of flycatcher
critical habitat designation.
Our Response: Ranching activities located outside of the proposed
critical habitat designation were not expected to experience direct
economic impacts related to the designation, and therefore these
activities are not specifically addressed in the analysis. However, to
the extent that there are regional economic impacts related to
restrictions on grazing activities, these have been captured in the
regional economic impact analysis of grazing. This analysis is
presented in Section 5 of the final economic analysis.
Transportation Issues
(72) Comment: One comment states that the economic analysis
underestimates impacts of flycatcher critical habitat designation on
future transportation projects based on the uncertainty associated with
these projects; however, the economic analysis should use caveats and
assumptions as it does with other activities to estimate future
transportation projects. One comment states that the economic analysis
does not take into account economic impacts on the Foothill/Eastern
Transportation Corridor Agency and the Corridor.
Our Response: The economic analysis analyzes potential impacts
transportation activities in Section 8. Conversations with state
transportation agency staff, identified 11 transportation projects in
NV (1), NM (3), and AZ (7) expected to occur in critical habitat
designation areas in the future. No projects were identified in
critical habitat designation areas by UT Department of Transportation
or the CO Department of Transportation. Using the CA Transportation
Investment System, the economic analysis identified 8.4 km (5.2 mi) of
highway construction and improvements expected to occur within critical
habitat designation areas in the future in CA. The economic analysis
relied on the expertise of state transportation agencies to identify
future projects that occur within critical habitat designation areas.
In addition, major road projects are generally planned and constructed
over a very long time horizon. As such, it is reasonable to assume that
state transportation agencies will have the best information available
regarding future transportation projects.
The economic analysis did not take into account economic impacts to
the Foothill/Eastern Transportation Corridor Agency (TCA). Analysis of
this project has been added in Section 8.2.1. based on public comments
submitted by TCA.
Development Issues
(73) Comment: One comment states that the economic analysis
mistakenly assumes that there is no projected development in proposed
critical habitat designation in San Diego County.
Our Response: As described in section 6 of this analysis,
floodplain development is assumed to be most probable in those census
tracts that are densely populated and largely devoid of opportunities
for new development (thereby necessitating development within the
floodplain). Specifically, in CA, those census tracts intersecting
flycatcher habitat that are both the most densely populated (i.e., the
densest 25 percent of tracts intersecting habitat) and least
developable (i.e., the least developable 25 percent of tracts
intersecting habitat) are isolated for further analysis. This included
the census tract discussed in the comment.
To analyze development projections, GIS maps of the proposed
critical habitat designation boundaries were correlated with census
tract level data provided by the San Diego Association of Governments
(SANDAG). SANDAG is a quasi-governmental agency responsible for
providing official demographic projections for San Diego County. The
SANDAG land use projections are used to identify undeveloped acres
slated for residential, retail, office, or industrial development.
SANDAG provides acreage estimates for these land use categories. At
this time, SANDAG does not project growth in proposed critical habitat
designation areas in San Diego County.
(74) Comment: Two comments raised concerns concerning impacts of
flycatcher critical habitat designation on the regional real estate
market. One comment states that the DEA incorrectly concludes that
critical habitat designation will not have a significant impact on the
regional real estate market. Another comment states that the DEA makes
unrealistic conclusions about how the critical habitat designation
would affect residential real estate downstream of Seven Oaks Dam and
along the San Ana River's tributaries.
Our Response: To determine the regional significance of flycatcher
conservation activities on the real estate market, the economic
analysis compares the reduction in acres slated for development to
market-wide demand and supply conditions. Ideally, land set-aside
requirements should be compared with the total supply of developable
acreage in the region. However, accurate estimates of total regional
development potential were not readily available. Consequently,
projected acres of growth through 2023 in the three Counties where
floodplain development is most probable are used as proxies for
regional market supply. Total land development potential is based on
SCAG and SANDAG forecasts.
As discussed in Section 10 of the analysis, impacts are estimated
to be 0.04 percent of projected real estate supply. Thus, the set-aside
land associated with flycatcher protection is not expected to affect
the dynamics of the regional real estate market. Hence, housing prices
in each County are not likely to be affected. However, regulated
landowners will bear the cost associated with flycatcher protection, in
the form of lower property values. As this analysis assumes that the
total supply of housing will be met, some projects may be distributed
to other locations while others may proceed with higher flycatcher
protection costs and lower land values. No broader effects on regional
real estate prices are anticipated.
[[Page 60903]]
Fire Management Issues
(75) Comment: Two comments state that the economic analysis does
not consider economic impacts to fire management activities in certain
areas. One comment states that the economic analysis failed to consider
impacts to the Rio Grande Valley State Park, and specifically the
potential impacts to fire management within the park that is undertaken
to prevent damage to adjacent residential and commercial areas. The
other comment states that the economic analysis does not address
potential wildland fire prevention and suppression costs for Arizona
counties, including Graham County.
Our Response: Section 10 of the revised economic analysis states
that fire was probably uncommon in flycatcher habitat. However, fire in
some riparian zones (primarily low and mid-elevation areas) has
increased as a result of flood suppression, dewatering of rivers, and
other manmade effects. These changes to the environment have led to the
proliferation of more flammable exotic vegetation such as tamarisk,
giant reed, and red brome. Ignition sources have also increased due to
greater use of riparian areas from recreation and urbanization.
In areas that are in relatively close proximity to large urban
populations, fire management, including exotic species removal and
fuels management, is a critical component of urban planning efforts.
Thus, local officials in areas proximal to urban areas have
understandable concerns with about ongoing and future plans for these
activities, particularly exotic species removal (most particularly,
tamarisk control). The revised economic analysis includes an expanded
discussion of potential impacts on fire management activities.
Agricultural Issues
(76) Comment: Three comments state that the economic analysis does
not adequately address the impact of flycatcher critical habitat
designation on agricultural activities. One of these comments states
that the economic analysis underestimates future consultation
requirements because it does not consider the Federal nexuses that are
present.
Our Response: Section 5 of the economic analysis describes and
quantifies potential impacts on ranching activities. Regarding
potential impacts on crop agriculture, these are addressed as part of
Scenario 2 for water management activities in Section 4. Because
several water districts potentially affected under Scenario 2 for water
management provide water for agricultural purposes, reductions in
available water to these districts could result in corresponding
reductions in irrigated crop acres for end users, if farmers are unable
to switch to less water-intensive crops or find substitute water
sources. Vail Dam, Isabella Dam, Horseshoe Dam, Roosevelt Dam, and the
Lower Colorado systems dams all serve a significant number of
agricultural users and are projected to lose water under Scenario 2. As
detailed in Exhibit A-4, estimated water losses to districts supplying
agricultural end users may reduce irrigated agricultural acreage in the
affected counties by up to 12,520 ha (30,938 ac), assuming all
reservoir facilities are affected. A cropland reduction of that
magnitude would represent approximately 1.05 percent of total irrigated
and non-irrigated cropland in the affected areas. Additional detail is
provided in Section 4 and Appendix A of the economic analysis.
Small Business Issues
(77) Comment: Numerous comments state that the economic analysis
did not adequately estimate impacts of flycatcher critical habitat
designation on small businesses. One comment states that the economic
analysis does not quantify county-level impacts of AUM reductions, such
as lost tax revenues. The other comment states that the economic
analysis does not, and should, provide an economic and social analysis
of how flycatcher critical habitat designation may impact each rural
locality in the designation.
Our Response: Appendix A considers the extent to which the analytic
results presented in the main body of the economic analysis reflect
potential future impacts to small businesses. Appendix A, Small
Business Impacts, has been revised to provide additional details about
the estimated location of potential impacts by county as well as by
water user, where appropriate. The revised economic analysis presents
impacts on grazing activities organized by county and on a per ranch
basis in Appendix A.
Recreational Issues
(78) Comment: One commenter states that a late spring-early summer
drawdown under Scenario 2 could affect recreation, including sport
fisheries, at several reservoirs. One comment states that the economic
analysis does not provide dollar values for the impacts of forest
service closures.
Our Response: Facility managers were consulted as to the potential
for flycatcher conservation activities to impact recreational
activities at affected reservoirs. To the extent that recreational
impacts were identified, recreational impacts are presented in Chapter
10 of the final economic analysis. Section 10 of the revised economic
analysis discusses the impacts of closures that have occurred for
flycatchers, and quantifies these estimates where possible.
Restrictions (primarily already in place) on certain uses of recreation
areas in Tonto NF, AZ; San Bernardino NF, CA; and at Lake Isabella, CA,
are discussed in detail in Section 10 of the revised economic analysis.
Several studies have investigated how recreational impacts could
change with varying reservoir levels (Cordell, K. H. and J. C.
Bergstrom. 1993. Comparison of Recreation Use Values Among Alternative
Reservoir Water Level Management Scenarios. Water Resources Research.
29 (2): 247-258; Huszar et al. 1999. Recreational damages from
reservoir storage level changes. Water Resources Research) However,
these studies were case specific, and were conducted in geographic
areas distinct from those affected by potential flycatcher conservation
activities. Conducting a site specific study of the impact of
alternative water management regimes on recreation is beyond the scope
of this analysis.
Summary of Changes From the Proposed Rule
In developing the final designation of critical habitat for the
southwestern willow flycatcher, we reviewed public comments received on
the proposed designation of critical habitat published on October 12,
2004; the draft economic analysis and draft environmental assessment
published on April 28, 2005 (70 FR 21988); conducted further evaluation
of lands proposed as critical habitat; refined our mapping
methodologies; excluded additional habitat containing features
essential to the conservation of the subspecies from the final
designation pursuant to section 4(b)(2) of the Act; and exempted those
military lands that met the criteria for statutory exemptions pursuant
to section 4(a)(3) of the Act. Table 1, included at the end of this
section, outlines changes in area for each subunit. Specifically, we
are making the following changes to the final rule from the proposed
rule published on October 12, 2004:
(1) In AZ, in response to comments, we made further site visits
and/or re-evaluated information through habitat models, maps, and
reports, and made
[[Page 60904]]
changes to Pinto Creek, South Fork Little Colorado River, Big Sandy
River, lower Verde River, and Bill Williams River. Further site visits,
surveys, and evaluation occurred for Pinto Creek, the South Fork of the
Little Colorado River, and lower Verde River segment below Bartlett Dam
that resulted in determining that these segments were not essential for
inclusion in critical habitat, and therefore we removed these entire
segments. We examined habitat models and further analyzed the quality
of habitat that resulted in shortening the Big Sandy River segment to
more accurately reflect habitat with essential features. Through site-
specific habitat evaluation reports, we re-examined the quality of
habitat upstream from the Bill Williams National Wildlife Refuge at
Planet Ranch, and determined that it contained features important, but
not essential, to the conservation of the subspecies, and removed it
from critical habitat. More discussion on these segments can be found
in the appropriate Unit Descriptions below.
(2) In NV, we identified in our proposal the Muddy River within the
boundaries of the Overton State Wildlife Area, as an essential location
we may consider for exclusion as a result of assurances, protections,
and conservation benefit the flycatcher and its habitat receive from
the State of Nevada's ownership and management of the property. We did
not identify in the text of the proposed rule that a segment of the
Virgin River containing features essential to the conservation of the
subspecies also lies within the boundaries of the Overton Wildlife
Area. Our maps did however identify this essential segment of the
Virgin River within the boundaries of the Overton Wildlife Area. We
considered both the Muddy and Virgin River segments within the Overton
Wildlife Area for exclusion, and subsequently, as described below under
Relationship of Critical Habitat to State and Federal Wildlife Areas--
Exclusions Under Section 4(b)(2) of the Act, have excluded these river
segments from critical habitat.
(3) In NV, we identified a 1.2 km (2 mi) (approximately 158 ha/390
ac) segment of the Virgin River located between two distinct
conservation lands on the Overton Wildlife Area, NV. As a result of
this segment being surrounded by conservation lands, being detached
from a considerably larger designated segment, being a very small piece
of an overall large segment, and because a significant portion was
purchased for conservation of wildlife, it is our determination that
this segment is no longer essential for critical habitat and was
removed from consideration. More discussion on this segment can be
found in the appropriate Unit Description below.
(4) In CA, in response to comments and further evaluation, we
identify below entire proposed stream segments and portions of segments
that we are not including in the final designation. We are not
including Cuyamaca Lake in the final designation due to our re-
evaluation that the habitat included in the proposed designation
provided minimal habitat for flycatchers, metapopulation stability, or
prevention against catastrophic loss. Due to Forest Service, Bureau of
Land Management, and Southern California Edison comments and our re-
evaluation of river segments, portions of the Santa Ana River (below
Seven Oaks Dam), Temescal Creek, Temecula Creek, Santa Ysabel River,
Oak Glen Creek, and Mill Creek were determined to not be essential and
removed. Due to these same comments and our further scrutiny, remaining
segments of the San Diego River, San Timoteo Wash, Yucaipa Creek, and
Wilson Creek were determined to not be essential which left no
remaining designated habitat on those streams. The re-evaluation of
these segments resulted in us more accurately reflecting essential
habitat in this final rule. We also re-evaluated and removed the
segment of Cristianitos Creek proposed upstream of Marine Corps Base,
Camp Pendleton, because we determined it was not essential due to it
unlikely being able to support flycatcher nesting habitat. More
discussion on these segments can be found in the appropriate Unit
Descriptions below.
(5) In NM, in response to comments and further evaluation of maps,
we removed the middle Gila Box, located primarily on the Gila National
Forest upstream of Red Rock and downstream of the Gila Bird Area,
because it does not have, nor can it support abundant vegetation and is
unlikely to be able to support flycatcher nesting and migration habitat
as a result of it being a narrow canyon. Also, four small pieces of
vegetation surrounding the San Juan, Santa Clara, and San Illdefonso
Pueblos are being removed from this designation. More discussion on
this segment can be found in the appropriate Unit Description below.
(6) Although we attempted to remove as many developed areas (areas
that have no conservation value as southwestern willow flycatcher
habitat) as possible before publishing the proposed rule, we were not
able to eliminate all developed areas. Since publication of the
proposed rule and the receipt of more accurate mapping data and
information, we were able to further refine the designation, which has
resulted in a more precise delineation of essential habitat containing
one or more of the primary constituent elements. This resulted in a
minor reduction from the total area published in the proposed rule.
However, it is not possible to remove each and every one of these
developed areas even at the refined mapping scale used; therefore, the
maps of the designation may contain areas that do not contain primary
constituent elements. Lands within the boundaries of the designation
that do not contain one or more of the PCEs are not considered to be
critical habitat for the flycatcher.
(7) While mapping the lateral extent of critical habitat, some side
drainages, tributaries, and/or washes were included in the Little
Colorado, Middle Colorado, Verde, Middle Gila/San Pedro, Upper Gila
Management Unit, and Upper Rio Grande Management Units that extend
beyond the rivers we described in the proposal. These pieces of habitat
sometimes extended about 2 km (3 mi) along a tributary or wash not
described in the proposal. We did not describe these segments in the
text of the proposed rule. As a result, to the best of our ability, we
have truncated these segments, so only those habitats on the rivers
described are included in the final designation. We defer to the
specific mapped boundaries of the final designation (http://criticalhabitat.fws.gov). These areas extending up side drainages,
tributaries, and/or washes are not intended to be included as critical
habitat and are removed from the designation, leading to a minor
reduction in the total area published in the proposed rule.
(8) Due to peer review, comments, and re-evaluation of the PCEs, we
re-organized and revised PCE numbers 1 through 5 (as PCE 1, 1a, 1b, 1c,
1d, and 1e) to more accurately reflect the content of our proposal by
describing flycatcher uses of riparian habitat, the importance of a
dynamic system and succession (i.e., germination and growth of riparian
plants), and identifying specific riparian plant species. See the
Primary Constituent Elements section below for specific language.
(9) To more accurately reflect our proposal, we updated PCE number
6 to include the order Odonata (dragonflies) to the list of flying
insects consumed by southwestern willow flycatchers and re-numbered PCE
number 6 as PCE number 2. See the Primary Constituent Elements section
below for specific language.
[[Page 60905]]
(10) Due to comments received, we have added two specific sections
to this critical habitat rule that describe the geographical area
occupied by the southwestern willow flycatcher and the nature of
essential habitat not known to be within the geographical area occupied
by the species at the time of listing. Please see the: Geographic Area
Occupied by the Species and Justification of Including Areas Not Known
To Be Within the Geographic Area Occupied by the Species at the Time of
Listing sections below.
(11) We have exempted State Lease lands (primarily Cristianitos
Creek) included within the boundary of Marine Corps Base, Camp
Pendleton per section 4(a)(3). See the Relationship of Critical Habitat
to Military Lands--Application of Section 4(a)(3) and Exclusions Under
Section 4(b)(2) of the Act section below.
(12) We excluded river segments and reservoir bottoms under section
4(b)(2) of the Act and exempted two Military Areas under section
4(a)(3) of the Act from the final critical habitat designation (see the
Application of Sections 3(5)(A) and 4(a)(3) and Exclusions Under
Section 4(b)(2) of the Act section below). This is the primary source
of reduction in total designated critical habitat area that was
identified in the proposed rule. Exemptions under section 4(a)(3)
included identified streams within Marine Corps Base, Camp Pendleton
and Naval Weapons Station, Seal Beach, Detachment Fallbrook based on
their approved INRMPs. Exclusions pursuant to section 4(b)(2) based on
approved HCPs include San Diego County MSCP, Western Riverside County
MSHCP, City of Carlsbad HMP, Roosevelt Lake HCP, and the Lower Colorado
River MSCP. State Wildlife Areas excluded under section 4(b)(2) include
the Overton and Key Pittman State Wildlife Areas, NV, and Alamo State
Wildlife Area, AZ. Additional Wildlife Conservation Areas excluded
include the South Fork Kern River Wildlife Area and Sprague Ranch, Kern
River, CA. We excluded, pursuant to section 4(b)(2) of the Act, various
Tribal lands and Pueblos that completed approved southwestern willow
flycatcher management plans from the final designation. These include
the following: Yavapai-Apache, Chemehuevi, Colorado River, Quechan
(Fort Yuma), Fort Mohave, Hualapai, and San Carlos Apache Tribes in AZ,
Pueblo of Isleta in NM, and Rincon and La Jolla Tribes in CA. We also
excluded, pursuant to section 4(b)(2) of the Act, the San Illdefonso,
San Juan, and Santa Clara Pueblos in Northern New Mexico along the Rio
Grande due to partnerships associated with southwestern willow
flycatcher habitat management. National Wildlife Refuges (NWR) excluded
from the final designation under section 4(b)(2) of the Act due to
wildlife conservation management include: Alamosa NWR, CO; Sevilleta
and Bosque del Apache NWR, NM; Bill Williams, Havasu, Imperial, and
Cibola NWR, AZ; and Pahranagat NWR, NV. Other lands excluded under
section 4(b)(2) of the Act due to southwestern willow flycatcher/
riparian habitat conservation plans/programs/easements and/or
partnerships include: Los Angeles Department of Water and Power, Owens
River, CA; San Luis Valley Partnership, Rio Grande and Conejos Rivers,
CO; Hafenfeld Ranch, Kern River, CA; Salt River Project--Horseshoe
Lake, Verde River, AZ; the City of Albuquerque/Rio Grande Valley State
Park, Rio Grande, NM; and U-Bar Ranch, Gila River, NM.
Table 1.--Critical Habitat Units for the Southwestern Willow Flycatcher
------------------------------------------------------------------------
Critical habitat management units Final rule ha (ac) / km (mi)
------------------------------------------------------------------------
Santa Ynez Management Unit............... 1560 (3855) / 32 (20)
Santa Ana Management Unit................ 1103 (2727) / 97 (60)
San Diego Management Unit................ 1944 (4805) / 102 (64)
Owens Management Unit.................... 0
Kern Management Unit..................... 1241 (3067) / 15 (10)
Mohave Management Unit................... 1033 (2553) / 55 (34)
Salton Management Unit................... 84 (206) / 11 (7)
Little Colorado Management Unit.......... 216 (534) / 35 (22)
Virgin Management Unit................... 3903 (9643) / 119 / 74)
Middle Colorado Management Unit.......... 0
Pahranagat Management Unit............... 0
Bill Williams Management Unit............ 1883 (4654) / 30 (19)
Hoover to Parker Management Unit......... 0
Parker to Southerly International Border 0
Management Unit.........................
Verde Management Unit.................... 2191 (5414) / 96 (59)
Roosevelt Management Unit................ 3064 (7572) / 60 (37)
Middle Gila/San Pedro Management Unit.... 9692 (23949) / 170 (106)
Upper Gila Management Unit............... 6897 (17043) / 162 (101)
San Luis Valley Management Unit.......... 0
Upper Rio Grande Management Unit......... 664 (1640) / 66 (41)
Middle Rio Grande Management Unit........ 13410 (33137) / 135 (84)
------------------------------------------------------------------------
Critical Habitat
Critical habitat is defined in section 3(5)(A) of the Act as--(i)
the specific areas within the geographical area occupied by a species,
at the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use of all methods and
procedures that are necessary to bring an endangered or a threatened
species to the point at which listing under the Act is no longer
necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
[[Page 60906]]
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 government or public access to private lands.
To be included in a critical habitat designation, the habitat
within the area occupied by the species at the time of listing must
first have features that are ``essential to the conservation of the
species.'' Critical habitat designations identify, to the extent known
using the best scientific and commercial data available, habitat areas
that provide essential life cycle needs of the species (i.e., areas on
which are found the primary constituent elements, as defined at 50 CFR
424.12(b)).
Specific areas within the geographic area occupied by the species
at the time of listing may be included in critical habitat only if the
essential features may require special management or protection. As
discussed below, such areas may also be excluded from critical habitat
pursuant to section 4(b)(2). When the best available scientific and
commercial data do not demonstrate that the conservation needs of the
species so require, we will not designate critical habitat in areas
outside the geographical area occupied by the species at the time of
listing. An area currently occupied by the species but that was not
known to be occupied at the time of listing will likely be essential to
the conservation of the species and, therefore, included in the
critical habitat designation.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
and our associated Information Quality Guidelines, provides criteria
and guidance, and establishes procedures to ensure that our decisions
represent the best scientific and commercial data available. Our
biologists are required, to the extent consistent with the Act and with
the use of the best scientific and commercial data available, to use
primary and original sources of information as the basis for
recommendations to designate critical habitat. When determining which
areas are designated as critical habitat, a primary source of
information is generally the listing package for the species.
Additional information sources include a recovery plan for the species,
articles in peer-reviewed journals, conservation plans developed by
States and counties or other entities that develop HCPs, scientific
status surveys and studies, biological assessments, or other
unpublished materials and expert opinion or personal knowledge. All
information is used in accordance with the provisions of Section 515 of
the Treasury and General Government Appropriations Act for Fiscal Year
2001 (Pub. L. 106-554; H.R. 5658) and the associated Information
Quality Guidelines issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. 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, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Methods
As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available in determining areas that are
essential to the conservation of the southwestern willow flycatcher.
Our methods for identifying the southwestern willow flycatcher critical
habitat included in this final designation are those methods we used to
propose critical habitat for the southwestern willow flycatcher,
published on October 12, 2004 (69 FR 60706). In addition, we used
information and data received during both the October 12, 2004 to May
31, 2005, and July 7 to 18, 2005 public comment periods, the economic
analysis, environmental assessment National Environmental Policy Act
(NEPA) document, and communications with individuals inside and outside
the Service who are knowledgeable about the species and its habitat
needs.
We have also reviewed available information that pertains to the
habitat requirements of this species. The material included data in
reports submitted during section 7 consultations and by biologists
holding section 10(a)(1)(A) recovery permits; research published in
peer-reviewed articles, agency reports, and databases; and regional
Geographic Information System (GIS) coverages and habitat models.
A variety of sources were used to determine territory site
information and locations. The Recovery Plan (USFWS 2002), the U.S.
Geological Survey (USGS 2004) southwestern willow flycatcher rangewide
database, and 2002 (Sogge et al. 2003) and 2003 (Durst et al. 2005)
rangewide status report of the flycatcher were the most authoritative
and complete sources of information. The database maintained by USGS,
Colorado Plateau Research Station, Flagstaff, AZ compiles the results
of surveys conducted throughout the bird's range. We had compiled 2004
data from AZ (Munzer et al. 2005), but did not have compiled data from
other states. A summary of known historical breeding records can be
found in the Recovery Plan (USFWS 2002: 8 to10).
Geographic Area Occupied by the Species
The geographic area occupied by the southwestern willow flycatcher
is widespread as a result of its behavior, breeding range, known
migration and dispersal habits, and the dynamics of its habitat
development. Unlike other animals whose habitat changes slowly or where
movements are limited, the southwestern willow flycatcher is a neo-
tropical migrant that travels annually between its breeding grounds in
the United States of America (U.S.) and wintering grounds in Central
and South America. The riparian habitat it uses for breeding, foraging,
migrating, dispersing, and shelter can change (is dynamic) in its
quality, growth, and location due to its proximity to water and
susceptibility to flooding (USFWS 2002; Koronkiewicz et al. 2004;
Cardinal and Paxton 2005). As a result of the dynamic nature of its
habitat, the southwestern willow flycatcher will typically move its
breeding location from year-to-year (Luff et al. 2000; Kenwood and
Paxton 2002; USFWS 2002; Newell et al. 2003, 2005). The bird does not
usually exhibit nest fidelity (using the same nest tree year-to-year),
but commonly demonstrates site-fidelity (Luff et al. 2000; Kenwood and
Paxton 2002; USFWS 2002; Newell
[[Page 60907]]
et al. 2003, 2005). In other words, flycatchers do not typically return
to use the same nest tree or habitat patch for breeding from year-to-
year, but commonly returns to or near the general area (or site) where
they previously bred or hatched (Luff et al. 2000; Kenwood and Paxton
2002; USFWS 2002:22; Newell et al. 2003, 2005). As result of these
factors, the geographical area occupied by the flycatcher is much
broader than the specific locations used while nesting.
The southwestern willow flycatcher currently breeds across six
southwestern states (southern CA, southern NV, southern UT, southern
CO, AZ, and NM) from sea level to about 2438m (8000 feet) above sea
level. While the bird occupies a broad area, its breeding locations are
irregularly distributed within its range. Genetic studies conducted by
Paxton (2000) helped confirm the subspecies and refine the northern
boundary of the bird's breeding range (particularly in UT and CO) in
the U.S. The current breeding range of the southwestern willow
flycatcher is reflected in the maps found in the Recovery Plan (USFWS
2002).
The southwestern willow flycatcher, a neo-tropical migrant, travels
between its breeding areas in the U.S. to wintering grounds in Central
and South America. During these migrations, it occupies habitat
(primarily riparian habitat along river corridors) across a wide
geographic area during spring and fall migration. These essential
migration stopover habitats are used for shelter, and to forage in
order to sustain life, continue migration, and be in appropriate
condition for breeding. These stopover areas are used briefly, can
differ from year-to-year, are less habitat-specific than areas where
nests are placed, but cover a greater geographic area than breeding
locations. Birds have even been detected occupying non-riparian areas
during migration (USFWS 2002:19). Current work along extensive sections
of river drainages has provided the best information on the bird's
migration habits (Yong and Finch 1997, 2002; Koronkiewicz et al. 2004;
McLeod et al. 2005).
The most current and comprehensive drainage-wide look at the use of
migration habitat by willow flycatchers has occurred along the Lower
Colorado River and its major tributaries (Koronkiewicz et al. 2004;
McLeod et al. 2005). A total of 15 large study areas (comprised of over
90 smaller survey sites) exist along the length of the Colorado River
from the Grand Canyon above Lake Mead to Yuma, AZ (including the lower
Virgin and Bill Williams rivers) and also include separate locations in
southern Nevada along other tributaries of the Colorado River (the
Pahranagat River and Meadow Valley Wash) (Koronkiewicz et al. 2004;
McLeod et al. 2005). In 2003, willow flycatchers were recorded at 13 of
15 study areas and 54 of 94 survey sites, occupying each large study
area along the length of the Colorado River from the Grand Canyon above
Lake Mead downstream to Yuma, AZ (Koronkiewicz et al. 2004). Also,
study areas on the Virgin, Bill Williams, and Pahranagat rivers were
occupied by willow flycatchers (Koronkiewicz et al. 2004). Similarly,
in 2004, each of the 15 study areas and 72 of 92 survey sites were
occupied by willow flycatchers (McLeod et al. 2005). This comprehensive
view of willow flycatcher migration shows occupancy of a variety of
riparian habitats along the entire length of a major drainage (Lower
Colorado River) and its significant tributaries (Virgin, Bill Williams,
and Pahranagat rivers), occupancy of different sites from one season to
the next, and occupancy of a major drainage and its significant
tributaries where breeding locations are interspersed (Koronkiewicz et
al. 2004; McLeod et al. 2005). As a result of, (1) the study along the
Lower Colorado River and its major tributaries (discussed above), (2)
studies of willow flycatchers occurring along the Rio Grande (Yong and
Finch 1997, 2002), and (3) detections of willow flycatchers along the
same major drainages where breeding occurs throughout AZ (Munzer et al.
2005), we expect similar flycatcher migration behavior for the other
major drainages where southwestern willow flycatchers breed throughout
its range and where these locations are included within this
designation.
While southwestern willow flycatchers place their nests in dense
riparian habitat (USFWS 2002), occupancy of habitat in river corridors
by pre-breeding, breeding, and post-nesting southwestern willow
flycatchers extends beyond the dense vegetation where a nest is placed
(Cardinal and Paxton 2005). Results from radio-telemetry studies
determined that southwestern willow flycatchers explored a variety of
riparian habitats of varying quality (Cardinal and Paxton 2005). Mixed
(native and exotic) mature habitat was used 53 percent of the time
(Cardinal and Paxton 2005). Smaller and younger immature vegetation
comprised of willow and salt cedar was used 25 percent of the time
(Cardinal and Paxton 2005). Also used were habitats classified as young
(17 percent), open (4 percent), and mature exotic (1 percent) (Cardinal
and Paxton 2005). Therefore, while vegetation required for nest
placement is the most dense and specific of all habitats used by
southwestern willow flycatchers, matrices of open spaces and shorter/
sparser vegetation are also used. However, during the entire time
southwestern willow flycatchers were tracked, none were found using
upland habitat (i.e., habitat that extended outside of the floodplain
to non-riparian habitat) (Cardinal and Paxton 2005).
The distances traveled and areas occupied by telemetered breeding
and dispersing young-of-the year fledgling southwestern willow
flycatchers varied, but were larger than the nest area (Cardinal and
Paxton 2005). Breeding southwestern willow flycatcher home ranges
varied from 0.15 ha (0.4 ac) to 360 ha (890 ac) (Cardinal and Paxton
2005). Movements by male southwestern willow flycatchers prior to and
after nesting were the farthest, while birds did not travel as far
while nesting (Cardinal and Paxton 2005). One post-nesting male
traveled through many territories, moving over 500 m (0.31 mi) in one
day and collectively over several days, 2 km (1.2 mi). Other post-
nesting southwestern willow flycatchers were also observed traveling
long distances to exploit a spike in food availability that may
indicate staging behavior for migration (Cardinal and Paxton 2005). As
a result, Cardinal and Paxton (2005) concluded that previous home
ranges estimated for nesting southwestern willow flycatchers
underestimated the actual home range of an individual southwestern
willow flycatcher throughout the entire nesting season. In addition, to
demonstrate how mobile flycatchers can be, a dispersing young-of-the-
year fledgling southwestern willow flycatcher was detected traveling
over 24 km (15 mi) in a single day (Cardinal and Paxton 2005).
Therefore, the use and occupancy of riparian habitat surrounding
nesting areas by breeding and dispersing southwestern willow
flycatchers is greater than previously believed, and is likely
important for flycatchers to seek territories, to detect future nesting
areas, search for mates, forage, and/or stage for migration (Cardinal
and Paxton 2005).
Therefore, the boundary of the current geographic area occupied by
the southwestern willow flycatcher in the U.S. is supported by genetic
studies (Paxton 2000) and is reflected in the range map included in the
Recovery Plan (USFWS 2002) that describes its breeding range across
southern CA, southern NV, southern UT, southern CO, AZ, and NM. Because
this bird is a neotropical migrant traveling mainly along riparian
areas where habitat
[[Page 60908]]
rapidly changes condition and location, its use of riparian habitat
within this boundary along migration corridors is widespread (i.e.,
more extensive than specific breeding locations) and less predictable.
However, all studies and surveys support that the flycatcher uses
riparian habitat for migration stopover areas along the same major
drainages where breeding sites are known to occur. Because of the
bird's site fidelity to general breeding areas and the dynamics of its
habitat, its nesting and foraging areas will also change over time, but
will occur primarily along the same major river drainages where it is
currently found in locations that can support the necessary vegetation
qualities. Based upon continued surveys and recent telemetry studies on
the use of habitat during the nesting season, the extent and diversity
of habitat used is more widespread than previously believed. Pre-
breeding, breeding, dispersing, and non-territorial flycatchers can use
a wide variety of riparian habitats that can encompass hundreds of
hectares (acres).
In the methodology section below, we further describe how we
address the dynamic aspects of flycatcher habitat, the subspecies
biology, and its life history needs (breeding, migration, dispersing,
foraging, and shelter) and how we arrived at specific essential river
segments for the designation of critical habitat occupied by breeding,
non-breeding, migrating, foraging, dispersing, and territorial
southwestern willow flycatchers.
Primary Constituent Elements
In accordance with section 4(b)(2) of the Act and regulations at 50
CFR 424.12, in determining which areas to designate as critical
habitat, we are required to base critical habitat determinations on the
best scientific data available. Critical habitat is defined in section
3(5)(A)(i), in part, as areas occupied by the species at the time of
listing and containing those physical and biological features (PCEs)
that are essential to the conservation of the species, and that may
require special management considerations or protection. These general
requirements include, but are not limited to: Space for individual and
population growth and for normal behavior; food, water, air, light,
minerals, or other nutritional or physiological requirements; cover or
shelter; sites for breeding, reproduction, and rearing (or development)
of offspring; and habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
The specific PCEs required for the southwestern willow flycatcher
are derived from the biological needs of the southwestern willow
flycatcher. Supporting details are found below and can also be found in
the Background section of the October 12, 2004, proposed rule (69 FR
60706) and the Recovery Plan (USFWS 2002). The specific biological and
physical features, or PCEs, which are essential to the conservation of
the southwestern willow flycatcher, are described below. Identified
lands provide aquatic and terrestrial habitat containing the essential
PCEs supporting the maintenance of self-sustaining populations and
metapopulations (see description below) of southwestern willow
flycatchers throughout its range.
The southwestern willow flycatcher currently breeds in relatively
dense riparian habitats in all or parts of six southwestern states,
from near sea level to over 2438 meters (m) (8000 feet) (USFWS 2002: D-
1) (Munzer et al. 2005). The southwestern willow flycatcher breeds in
riparian habitats along rivers, streams, or other wetlands, where
relatively dense growths of trees and shrubs are established, near or
adjacent to surface water or underlain by saturated soil. Habitat
characteristics such as dominant plant species, size and shape of
habitat patch, canopy structure, vegetation height, and vegetation
density vary widely among sites. Southwestern willow flycatchers nest
in thickets of trees and shrubs ranging in height from 2 m to 30 m (6
to 98 ft). Lower-stature thickets (2-4 m or 6-13 ft tall) tend to be
found at higher elevation sites, with tall-stature habitats at middle
and lower elevation riparian forests. Nest sites typically have dense
foliage at least from the ground level up to approximately 4 m (13 ft)
above ground, although dense foliage may exist only at the shrub level,
or as a low dense canopy. Nest sites typically have a dense canopy.
As a neotropical migrant (migrating between Central and South
America and the United States), migration stopover areas for the
southwestern willow flycatcher, even though not used for breeding, are
critically important, (i.e., essential) resources affecting
productivity and survival (Sogge et al. 1997b; Yong and Finch 1997;
Johnson and O'Brien 1998; McKernan and Braden 1999; and USFWS 2002: E-3
and 19). Use of riparian habitats along major drainages in the
Southwest during migration has been documented (Sogge et al. 1997; Yong
and Finch 1997; Johnson and O'Brien 1998; McKernan and Braden 1999;
Koronkiewicz et al. 2004, McLeod et al. 2005, Munzer et al. 2005). Many
of the willow flycatchers found migrating through riparian areas are
detected in riparian habitats or patches that would be unsuitable for
breeding (e.g., the vegetation structure is too short or sparse, or the
patch is too small). Migrating flycatchers use a variety of riparian
habitats, including ones dominated by native or exotic plant species,
or mixtures of both (USFWS 2002: E-3). Willow flycatchers, like most
small passerine birds, require food-rich stopover areas in order to
replenish energy reserves and continue their northward or southward
migration (Finch et al. 2000; USFWS 2002: E-3 and 42).
Southwestern willow flycatchers breeding populations are believed
to exist and interact as groups of metapopulations (Noon and Farnsworth
2000; Lamberson et al. 2000; and USFWS 2002: 72). A metapopulation is a
group of spatially disjunct local southwestern willow flycatcher
breeding populations connected to each other by immigration and
emigration (USFWS 2002: 72). The distribution of the southwestern
willow flycatcher varies geographically and is most stable where many
connected sites and/or large populations exist (Coastal CA, Gila, Rio
Grande Recovery Units) (Lamberson et al. 2000 and USFWS 2002: 72).
Metapopulation persistence or stability is more likely to increase by
adding more breeding sites (see definition below) rather than adding
more territories (see definition below) to existing sites (Lamberson et
al. 2000; USFWS 2002: 72; and USFWS 2003). This strategy distributes
birds across a greater geographical range, minimizes risk of
simultaneous catastrophic loss, and avoids genetic isolation (USFWS
2002: 72). In consideration of habitat that is dynamic and widely
distributed, flycatcher metapopulation stability, population
connectivity, and gene flow can be achieved through: Distributing birds
throughout its range; having birds close enough to each other to allow
for interaction; having large populations; having a matrix of smaller
sites with high connectivity; and establishing habitat close to
existing breeding sites, thereby increasing the chance of colonization
(USFWS 2002: 75). As the population of a site increases, the potential
to disperse and colonize increases; and an increase/decrease in one
population affects other populations because populations are affected
by the proximity, abundance, and reproductive productivity of
neighboring populations (USFWS 2002: 75).
Breeding site and territory are common terms used to describe areas
where southwestern willow flycatchers
[[Page 60909]]
breed or attempt to breed. A breeding site may encompass a discrete
nesting location (i.e. territory) or several (USFWS 2002: 72). A
territory is defined as a territorial or singing male detected during
field surveys and generally equates to an area where both a male and
female are present (Sogge et al. 1997). For more specific information
on southwestern willow flycatcher presence/absence survey protocol,
please see Sogge et al. (1997) and any subsequent updates at http://fws.gov/arizonaes or http://www.usgs.nau.edu/swwf. Breeding site and
patch (a ``patch'' is defined as a discrete piece of southwestern
willow flycatcher habitat) fidelity and habitat use by adult, nestling,
breeding, and non-breeding southwestern willow flycatchers are just
beginning to be understood (Kenwood and Paxton 2001; Koronkiewicz and
Sogge 2001; USFWS 2002: 17, Cardinal and Paxton 2005).
Southwestern willow flycatchers have higher site fidelity than nest
fidelity and can move among sites within drainages and between
drainages (Kenwood and Paxton 2001). Within-drainage movements are more
common than between-drainage movements (Kenwood and Paxton 2001). From
nearly 300 band recoveries, within-drainage movements generally ranged
from 1.6 to 29 kilometers (km) (1 to 18 miles (mi), but were as long as
40 km (25 mi) (E. Paxton, USGS, e-mail). Movements of birds between
drainages are more rare, and the distances are more varied. Banding
studies have recorded 25 between-drainage movements ranging from 40 km
(25 mi) to a single movement of 443 km (275 mi) (average = 130 km or 81
mi) (E. Paxton, USGS, e-mail).
The Recovery Plan for the southwestern willow flycatcher (USFWS
2002) provides reasonable actions believed to be required to recover
and protect the bird. The Recovery Plan (USFWS 2002: 105 to 136)
provides the strategy for recovering the bird to threatened status and
to the point where delisting is warranted. The Recovery Plan states
that either one of two criteria can be met in order to downlist the
species to threatened (USFWS 2002: 77-78). The first relies on reaching
a total population of 1,500 territories strategically distributed among
all Recovery Units and maintained for three years with habitat
protections (USFWS 2002: 77-78). Habitat protections include a variety
of options such as Habitat Conservation Plans, conservation easements,
and Safe Harbor Agreements. The second criterion calls for reaching a
population of 1,950 territories also strategically distributed among
all Recovery and Management Units for five years without additional
habitat protection (USFWS 2002: 77-78). For delisting, the Recovery
Plan recommends a minimum of 1,950 territories must be strategically
distributed among all Recovery and Management Units, and these habitats
must be protected from threats and create/secure sufficient habitat to
assure maintenance of these populations and/or habitat for the
foreseeable future through development and implementation of
conservation management agreements (USFWS 2002: 79-80). All of the
delisting criteria must be accomplished and demonstrated their
effectiveness for a period of 5 years (USFWS 2002: 79-80).
All the PCEs of critical habitat for the southwestern willow
flycatcher are found in the riparian ecosystem within the 100-year
floodplain or flood prone area. Southwestern willow flycatchers use
riparian habitat for nesting, feeding, and sheltering while breeding,
migrating, and dispersing. Because riparian vegetation is prone to
periodic disturbance, flycatcher habitat is ephemeral and its
distribution is dynamic in nature (USFWS 2002: 17). In other words,
riparian trees and shrubs used by flycatchers will be altered by flood
waters, drought, or possibly succumb to fire, but will be replaced by
new trees or shrubs which grow in their place (but not necessarily in
the same location). Sapling riparian trees and shrubs must germinate
and grow to reach the appropriate height and structure to be used by
flycatchers. After reaching appropriate structure for nesting,
flycatcher habitat may become unsuitable for breeding through
maturation or disturbance, but suitable for migration or foraging
(though this may be only temporary, and patches may cycle back into
suitability for breeding) (USFWS 2002: 17). Over a five-year period,
southwestern willow flycatcher habitat can, in optimum conditions,
germinate, be used for migration or foraging, continue to grow, and
eventually be used for nesting. Therefore, the riparian vegetation used
by flycatchers is part of a gradually changing system, not only in its
rapid growth due to its proximity to water, but its location within the
floodplain due to the dynamic riverine environment. As a result of this
dynamic riverine environment, it is not realistic to assume that any
given breeding habitat patch will remain suitable over the long-term,
or persist in the same location (USFWS 2002: 17), or always be used for
the same purpose by flycatchers. Feeding sites and migration stopover
areas are essential components of the flycatcher's survival,
productivity, and health, and they can also be areas where new breeding
habitat develops as established nesting sites are lost or degraded
(USFWS 2002: 42). Thus, habitat that is not currently suitable for
nesting at a specific time, but useful for foraging and/or migration
can be essential to the conservation of the flycatcher. Therefore, the
germination and growth of riparian vegetation (i.e. succession) in this
dynamic environment is integral for developing and maintaining
appropriate habitat for use by southwestern willow flycatchers.
Based on our current knowledge of the life history and ecology of
the southwestern willow flycatcher and the relationship of its
essential life history functions to its habitat, as described below in
the text supporting the PCEs, and in more detail in the Recovery Plan
(USFWS 2002: Chapter II), it is important to recognize the combined
nature of the relationships between river function, water, hydrology,
floodplains, soils, aquifers, and plant growth to form and support the
vegetation and insect populations (PCEs) important for the conservation
of the southwestern willow flycatcher.
The natural hydrologic regime (i.e., river flow frequency,
magnitude, duration, and timing) and supply of (and interaction
between) surface and subsurface water will be a driving factor in the
maintenance, growth, recycling, and regeneration of southwestern willow
flycatcher habitat (USFWS 2002:16). As streams reach the lowlands,
their gradients typically flatten and surrounding terrain open into
broader floodplains (USFWS 2002: 32). Combine this setting with the
integrity of stream flow frequency, magnitude, duration, and timing
(Poff et al. 1997), and conditions will occur that provide for proper
river channel configuration, sediment deposition, periodic inundation,
recharged aquifers, lateral channel movement, and elevated groundwater
tables throughout the floodplain that develop flycatcher habitat (USFWS
2002:16). Maintaining existing river access to the floodplain when
overbank flooding occurs is integral to allow deposition of fine moist
soils, water, nutrients, and seeds that provide essential material for
plant germination and growth. An abundance and distribution of fine
sediments extending farther laterally across the floodplain and deeper
underneath the surface retains much more subsurface water, which in
turn supplies water for the development of flycatcher habitat and
micro-habitat conditions (USFWS 2002:16). The interconnected
[[Page 60910]]
interaction between groundwater and surface water contributes to the
quality of riparian community (structure and plant species), and will
influence the germination, density, vigor, composition, and ability to
regenerate and maintain itself (AZ Department of Water Resources 1994).
The areas designated as critical habitat provide riparian habitat
for breeding, non-breeding, territorial, dispersing, and migrating
southwestern willow flycatchers and to sustain southwestern willow
flycatchers across their range. No areas are being designated as
critical habitat solely because they serve as a migration corridor;
rather areas designated serve a variety of functions that include use
by southwestern willow flycatchers as migration habitat. The habitat
components essential for conservation of the species were determined
from studies of southwestern willow flycatcher behavior and habitat use
throughout the birds range (USFWS 2002: Chapter II and Appendix D). Due
to the natural history of this neotropical migrant and the dynamic
nature of the riparian environments in which they are found (USFWS
2002: Chapter II and Appendix D), one or more of the primary
constituent elements described below are found throughout each of the
specific areas that are being designated as critical habitat.
Space for Individual and Population Growth, and for Normal Behavior
Streams of lower gradient and/or more open valleys with a wide/
broad floodplain are the geological settings that support willow
flycatcher breeding habitat from near sea level to over 2438 m (8000
ft) in southern CA, southern NV, southern UT, southern CO, AZ, and NM
(USFWS 2002: 7). Lands with moist conditions which support riparian
plant communities are areas that provide habitat for the southwestern
willow flycatcher. Conditions like these develop in lower floodplains
as well as where streams enter impoundments, either natural (e.g.,
beaver ponds) or human-made (reservoirs). Low-gradient stream
conditions may also occur at high elevations, as in the marshy mountain
meadows supporting flycatchers in the headwaters of the Little Colorado
River near Greer, AZ, or the flat-gradient portions of the upper Rio
Grande in south-central CO and northern NM (USFWS 2002: 32). Sometimes,
the low-gradient wider floodplain exists only at the habitat patch
itself, on streams that are generally steeper when viewed on the large
scale (e.g., percent gradient over kilometers or miles) (USFWS 2002).
Relatively steep, confined streams can also support flycatcher
habitats (USFWS 2002: D-13). The San Luis Rey River in CA supports a
substantial flycatcher population, and stands out among flycatcher
habitats as having a relatively high gradient and being confined in a
fairly narrow, steep-sided valley (USFWS 2002: D-13). It is important
to note that even a steep, confined canyon or mountain stream may
present local conditions where just a portion of a hectare or acre of
flycatcher habitat may develop (USFWS 2002; D-13). Such sites are
important individually, and in aggregate (USFWS 2002: D-13).
Flycatchers are known to occupy very small, isolated habitat patches,
and may occur in fairly high densities within those patches.
Many willow flycatchers are found along riparian corridors during
migration (McCabe 1991; Yong and Finch 1997, 2002; USFWS 2002; E-3,
Koronkiwiecz et al. 2004; McLeod et al. 2005; Munzer et al. 2005).
Migration stopover areas can be similar to breeding habitat (McCabe
1991) or riparian habitats of less density and abundance than areas for
nest placement (i.e., the vegetation structure is too short or sparse
or the patch is too small) (USFWS 2002: E-3). For example, many
locations where migrant willow flycatchers were detected on the lower
Colorado River (Koronkewiecz et al. 2004; McLeod et al. 2005) and
throughout AZ in 2004 (Munzer et al. 2005) were areas surveyed for
nesting birds, but no breeding was detected. Such migration stopover
areas, even though not used for breeding, are critically important
resources affecting productivity and survival (USFWS 2002: E-3). The
variety of riparian habitats occupied by migrant flycatchers range from
smaller patches with shorter/sparser vegetation to larger, more complex
breeding habitats.
Water
Flycatcher nesting habitat is largely associated with perennial
(i.e., persistent) stream flow that can support the expanse of
vegetation characteristics needed by breeding flycatchers. However,
flycatcher nesting habitat can also persist on intermittent (i.e.,
ephemeral) streams that retain local conditions favorable to riparian
vegetation (USFWS 2002: D-12). The range and variety of stream flow
conditions (frequency, magnitude, duration, and timing) (Poff et al.
1997) that will establish and maintain flycatcher habitat can arise in
different types of both regulated and unregulated flow regimes
throughout its range (USFWS 2002: D-12). Also, flow conditions that
will establish and maintain flycatcher habitat can be achieved in
regulated streams, depending on scale of operation and the interaction
of the primary physical characteristics of the landscape (USFWS 2002:
D-12).
In the Southwest, hydrological conditions at a flycatcher breeding
site can vary remarkably within a season and between years (USFWS 2002:
D-12). At some locations, particularly during drier years, water or
saturated soil is only present early in the breeding season (i.e., May
and part of June) (USFWS 2002: D-12). At other sites, vegetation may be
immersed in standing water during a wet year, but be hundreds of meters
from surface water in dry years (USFWS 2002: D-12). This is
particularly true of reservoir sites such as the Kern River at Lake
Isabella, CA, Roosevelt Lake, AZ, and Elephant Butte Reservoir, NM
(USFWS 2002: D-12). Similarly, where a river channel has changed
naturally there may be a total absence of water or visibly saturated
soil for several years (Sferra et al. 1997). In such cases, the
riparian vegetation and any flycatchers breeding within it may persist
for several years (USFWS 2002: D-12).
In some areas, natural or managed hydrologic cycles can create
temporary flycatcher habitat, but may not be able to support it for an
extended amount of time, or may support varying amounts of habitat at
different points in the cycle. Some dam operations create varied
situations that allow different plant species to thrive when water is
released below a dam, held in a lake, or removed from a lakebed, and
consequently, varying degrees of flycatcher habitat are available as a
result of dam operations (USFWS 2002: 33).
The riparian vegetation that constitutes southwestern willow
flycatcher breeding habitat requires substantial water (USFWS 2002: D-
12). Because southwestern willow flycatcher breeding habitat is often
where there is slow moving or still water, these slow and still water
conditions may also be important in influencing the production of
insect prey base for flycatcher food (USFWS 2002: D-12)
Sites for Germination or Seed Dispersal
Subsurface hydrologic conditions may, in some places (particularly
at the more arid locations of the Southwest), be equally important to
surface water conditions in determining riparian vegetation patterns
(Lichivar and Wakely 2004). Where groundwater levels are elevated to
the point that riparian forest plants can directly access
[[Page 60911]]
those waters it can be an area for both breeding, and non-breeding,
territorial, dispersing, foraging, and migrating southwestern willow
flycatchers, and elevated groundwater helps create moist soil
conditions believed to be important for nesting conditions and prey
populations (USFWS 2002: 11 and 18), as further discussed below.
Depth to groundwater plays an important part in the distribution of
riparian vegetation (AZ Department of Water Resources 1994) and
consequently, southwestern willow flycatcher habitat. The greater the
depth to groundwater below the land surface, the less abundant the
riparian vegetation (AZ Department of Water Resources 1994). Localized
perched aquifers (i.e., a saturated area that sits above the main water
table) can and do support some riparian habitat, but these systems are
not extensive (AZ Department of Water Resources 1994).
The abundance and distribution of fine sediment deposited on
floodplains is critical for the development, abundance, distribution,
maintenance, and germination of flycatcher habitat, and possibly
conditions for successful breeding (USFWS 2002: 16). Fine sediments
provide seed beds for flycatcher habitat. In almost all cases, moist or
saturated soil is present at or near breeding sites during wet or non-
drought years (USFWS 2002: 11). The saturated soil and adjacent surface
water may be present early in the breeding season, but only damp soil
is present by late June or early July (Muiznieks et al. 1994; USFWS
2002: D-3). Microclimate features (i.e., temperature and humidity)
facilitated by moist/saturated soil, are believed to play an important
role where flycatchers are detected and nest, their breeding success,
and availability/abundance of food resources (USFWS 2002).
Reproduction and Rearing of Offspring
Southwestern willow flycatchers nest in thickets of trees and
shrubs ranging in height from 2 m to 30 m (6 to 98 ft) (USFWS 2002: D-
3). Lower-stature thickets (2-4 m or 6-13 ft tall) tend to be found at
higher elevation sites, with tall-stature habitats at middle- and
lower-elevation riparian forests (USFWS 2002: D-2). Nest sites
typically have dense foliage at least from the ground level up to
approximately 4 m (13 ft) above ground, although dense foliage may
exist only at the shrub level, or as a low, dense tree canopy (USFWS
2002: D-3).
Riparian habitat characteristics such as dominant plant species,
size and shape of habitat patches, tree canopy structure, vegetation
height, and vegetation density are essential qualities of southwestern
willow flycatcher breeding habitat, although they may vary widely at
different sites (USFWS 2002: D-1). The accumulating knowledge of
flycatcher breeding sites reveals important areas of similarity which
constitute the basic concept of what is suitable breeding habitat
(USFWS 2002: D-2). These habitat features are generally discussed
below.
Regardless of the plant species composition or height, breeding
sites usually consist of dense vegetation in the patch interior, or an
aggregate of dense patches interspersed with openings (USFWS 2002: 11).
In most cases this dense vegetation occurs within the first 3 to 4 m
(10 to 13 ft) above ground (USFWS 2002: 11). These dense patches are
often interspersed with small openings, open water or marsh, or
shorter/sparser vegetation, creating a mosaic that is not uniformly
dense (USFWS 2002: 11).
Common tree and shrub species currently known to comprise nesting
habitat include Goodings willow (Salix gooddingii), coyote willow
(Salix exigua), Geyers willow (Salix geyerana), arroyo willow (Salix
lasiolepis), red willow (Salix laevigata), yewleaf willow (Salix
taxifolia), pacific willow (Salix lasiandra), boxelder (Acer negundo),
tamarisk (Tamarix ramosissima), and Russian olive (Eleagnus
angustifolia) (USFWS 2002: D-2, 11). Other plant species used for
nesting have been buttonbush (Cephalanthus occidentalis), cottonwood,
stinging nettle (Urtica dioica), alder (Alnus rhombifolia, Alnus
oblongifolia, Alnus tenuifolia), velvet ash (Fraxinus velutina), poison
hemlock (Conium maculatum), blackberry (Rubus ursinus), seep willow
(Baccharis salicifolia, Baccharis glutinosa), oak (Quercus agrifolia,
Quercus chrysolepis), rose (Rosa californica, Rosa arizonica, Rosa
multiflora), sycamore (Platinus wrightii), giant reed (Arundo donax),
false indigo (Amorpha californica), Pacific poison ivy (Toxicodendron
diversilobum), grape (Vitus arizonica), Virginia creeper
(Parthenocissus quinquefolia), Siberian elm (Ulmus pumila), and walnut
(Juglans hindsii) (USFWS 2002: D-3, 5, and 9). Other species used by
nesting southwestern willow flycatchers may become known over time as
more studies and surveys occur.
Nest sites typically have a dense tree and/or shrub canopy (USFWS
2002: D-3). Canopy density (the amount of cover provided by tree and
shrub branches measured from the ground) at various nest sites ranged
from 50 percent to 100 percent.
Southwestern willow flycatcher breeding habitat can be generally
organized into three broad habitat types--those dominated by native
vegetation (willow and cottonwood), by exotic (i.e., non-native)
vegetation (salt cedar), and those with mixed native and exotic plants
(salt cedar and willow). These broad habitat descriptors reflect the
fact that southwestern willow flycatchers inhabit riparian habitats
dominated by both native and non-native plant species. Salt cedar and
Russian olive are two exotic plant species used by flycatchers for nest
placement and also foraging and shelter (USFWS 2002: D-4).
The riparian patches used by breeding flycatchers vary in size and
shape (USFWS 2002: D-2). They may be relatively dense, linear,
contiguous stands or irregularly-shaped mosaics of dense vegetation
with open areas (USFWS 2002: D-2 and 11). Southwestern willow
flycatchers have been recorded nesting in patches as small as 0.1 ha
(0.25 ac) along the Rio Grande (Cooper 1997), and as large as 70 ha
(175 ac) in the upper Gila River in NM (Cooper 1997). The mean reported
size of flycatcher breeding patches was 8.6 ha (21.2 ac). The majority
of sites were toward the smaller end, as evidenced by a median patch
size of 1.8 ha (4.4 ac) (USFWS 2002: 17). Mean patch size of breeding
sites supporting 10 or more flycatcher territories was 24.9 ha (62.2
ac). Aggregations of occupied breeding patches within a breeding site
may create a riparian mosaic as large as 200 ha (494 ac) or more, such
as at the Kern River (Whitfield 2002), Roosevelt Lake (Paradzick et al.
1999) and Lake Mead (McKernan 1997).
Flycatchers often cluster their territories into small portions of
riparian sites (Whitfield and Enos 1996; Paxton et al. 1997; Sferra et
al. 1997; Sogge et al. 1997), and major portions of the site may be
occupied irregularly or not at all. Recent habitat modeling based on
remote sensing and GIS data has found that breeding site occupancy at
reservoir sites in AZ is influenced by vegetation characteristics of
habitat adjacent to the actual nesting areas (Hatten and Paradzick
2003); therefore, areas adjacent to nest sites can be an important
component of a breeding site. How size and shape of riparian patches
relate to factors such as flycatcher nest site selection and fidelity,
reproductive success, predation, and brood parasitism is unknown (USFWS
2002: D-11).
Flycatchers are generally not found nesting in confined floodplains
(i.e., those bound within a canyon) (Hatten
[[Page 60912]]
and Paradzick 2003) or where only a single narrow strip of riparian
vegetation less than approximately 10 m (33 ft) wide develops (USFWS
2002: D-11). While riparian vegetation too mature, immature, or of
lesser quality in abundance and breadth may not be used for nesting, it
can be used by breeders for foraging (especially if it extends out from
larger patches) or during migration for foraging, cover, and shelter
(Sogge and Tibbitts 1994; Sogge and Marshall 2000).
Food
The willow flycatcher is somewhat of an insect generalist (USFWS
2002: 26), taking a wide range of invertebrate prey including flying,
and ground-, and vegetation-dwelling species of terrestrial and aquatic
origins (Drost et al. 2003). Wasps and bees (Hymenoptera) are common
food items, as are flies (Diptera), beetles (Coleoptera), butterflies/
moths and caterpillars (Lepidoptera), and spittlebugs (Homoptera) (Beal
1912; McCabe 1991). Plant foods such as small fruits have been reported
(Beal 1912; Roberts 1932; Imhof 1962), but are not a significant food
during the breeding season (McCabe 1991). Diet studies of adult
southwestern willow flycatchers (Drost et al. 1997; DeLay et al. 1999)
found a wide range of prey taken. Major prey items were small (flying
ants) (Hymenoptera) to large (dragonflies) (Odonata) flying insects,
with, Diptera and Hemiptera (true bugs) comprising half of the prey
items. Willow flycatchers also took non-flying species, particularly
Lepidoptera larvae. From an analysis of southwestern willow flycatcher
diet along the South Fork of the Kern River, CA, (Drost et al. 2003)
flycatchers consumed a variety of prey from 12 different insect groups.
Willow flycatchers have been identified targeting seasonal hatchings of
aquatic insects along the Salt River arm of Roosevelt Lake, AZ (E.
Paxton, USGS, e-mail).
Southwestern willow flycatcher food availability may be largely
influenced by the density and species of vegetation, proximity to and
presence of water, saturated soil levels, and microclimate features
such as temperature and humidity (USFWS 2002). Flycatchers forage
within and above the canopy, along the patch edge, in openings within
the territory, over water, and from tall trees as well as herbaceous
ground cover (Bent 1960; McCabe 1991). Willow flycatchers employ a
``sit and wait'' foraging tactic, with foraging bouts interspersed with
longer periods of perching (Prescott and Middleton 1988).
Pursuant to our regulations, we are required to identify the known
physical and biological features or PCEs, essential to the conservation
of the southwestern willow flycatcher, together with a description of
any critical habitat that is designated. Based on our current knowledge
of the life history, biology, and ecology of the species and the
requirements of the habitat to sustain the essential life history
functions of the species, we have determined that the southwestern
willow flycatcher's primary constituent elements are:
(1) Riparian habitat in a dynamic successional riverine environment
(for nesting, foraging, migration, dispersal, and shelter) that
comprises:
(a) Trees and shrubs that include Gooddings willow (Salix
gooddingii), coyote willow (Salix exigua), Geyers willow (Salix
geyerana), arroyo willow (Salix lasiolepis), red willow (Salix
laevigata), yewleaf willow (Salix taxifolia), pacific willow (Salix
lasiandra), boxelder (Acer negundo), tamarisk (Tamarix ramosissima),
Russian olive (Eleagnus angustifolia), buttonbush (Cephalanthus
occidentalis), cottonwood (Populus fremontii), stinging nettle (Urtica
dioica), alder (Alnus rhombifolia, Alnus oblongifolia, Alnus
tenuifolia), velvet ash (Fraxinus velutina), poison hemlock (Conium
maculatum), blackberry (Rubus ursinus), seep willow (Baccharis
salicifolia, Baccharis glutinosa), oak (Quercus agrifolia, Quercus
chrysolepis), rose (Rosa californica, Rosa arizonica, Rosa multiflora),
sycamore (Platinus wrightii), false indigo (Amorpha californica),
Pacific poison ivy (Toxicodendron diversilobum), grape (Vitus
arizonica), Virginia creeper (Parthenocissus quinquefolia), Siberian
elm (Ulmus pumila), and walnut (Juglans hindsii).
(b) Dense riparian vegetation with thickets of trees and shrubs
ranging in height from 2 m to 30 m (6 to 98 ft). Lower-stature thickets
(2 to 4 m or 6 to 13 ft tall) are found at higher elevation riparian
forests and tall-stature thickets are found at middle- and lower-
elevation riparian forests;
(c) Areas of dense riparian foliage at least from the ground level
up to approximately 4 m (13 ft) above ground or dense foliage only at
the shrub level, or as a low, dense tree canopy;
(d) Sites for nesting that contain a dense tree and/or shrub canopy
(the amount of cover provided by tree and shrub branches measured from
the ground) (i.e., a tree or shrub canopy with densities ranging from
50 percent to 100 percent);
(e) Dense patches of riparian forests that are interspersed with
small openings of open water or marsh, or shorter/sparser vegetation
that creates a mosaic that is not uniformly dense. Patch size may be as
small as 0.1 ha (0.25 ac) or as large as 70 ha (175 ac); and
(2) A variety of insect prey populations found within or adjacent
to riparian floodplains or moist environments, including: flying ants,
wasps, and bees (Hymenoptera); dragonflies (Odonata); flies (Diptera);
true bugs (Hemiptera); beetles (Coleoptera); butterflies/moths and
caterpillars (Lepidoptera); and spittlebugs (Homoptera).
The discussion above outlines those physical and biological
features essential to the conservation of the southwestern willow
flycatcher and presents our rationale as to why those features were
selected. The primary constituent elements described above are results
of the dynamic river environment that germinates, develops, maintains,
and regenerates the riparian forest and provides food for breeding,
non-breeding, dispersing, territorial, and migrating southwestern
willow flycatchers. Anthropogenic factors such as dams, irrigation
ditches, or agricultural field return flow can assist in providing
conditions that support flycatcher habitat. Because the flycatcher
exists in disjunct breeding populations across a wide geographic and
elevation range, and is subject to dynamic events, critical habitat
river segments described below are essential for the flycatcher to
maintain metapopulation stability, connectivity, gene flow, and protect
against catastrophic loss. All river segments designated as
southwestern willow flycatcher critical habitat are within the
geographical area occupied by the species and contain at least one of
the primary constituent elements. It is important to recognize that the
PCEs are present throughout the river segments selected (PCE 1a and 2),
but the specific quality of riparian habitat for nesting (PCE 1b, 1c,
1d, 1e), migration (PCE 1), foraging (PCE 1 and 2), and shelter (PCE 1)
will not remain constant in their condition or location over time due
to succession (i.e., plant germination and growth) and the dynamic
environment in which they exist.
Criteria Used To Identify Critical Habitat
We are designating critical habitat on lands that (1) we have
determined are occupied at the time of listing and contain the primary
constituent elements of the southwestern willow
[[Page 60913]]
flycatcher, and (2) in some instances, designated areas not known to be
within the geographical area occupied at the time of listing, but have
been determined to be essential to the conservation of the species. See
the Justification of Including Areas Not Known To Be Within the
Specific Geographical Area Occupied by the Species at the Time of
Listing section below for our rationale for including such areas. This
critical habitat designation focuses on providing riparian habitat for
breeding, non-breeding, territorial, dispersing, and migrating
southwestern willow flycatchers, thus promoting the conditions for
maintaining self-sustaining southwestern willow flycatcher populations
and metapopulations across their range in areas of AZ, CA, NM, NV, CO,
and UT. Since southwestern willow flycatchers are found in a variety of
ecologically and geographically disjunct areas that are prone to
disturbance, it is important to preserve metapopulation stability,
connectivity, gene flow, and protect against catastrophic loss for
populations distributed across a large geographic and elevational
range, as well as the variety of ecological environments in which it
lives.
To identify areas containing features essential to the conservation
of the southwestern willow flycatcher, we first considered the Recovery
Plan's strategy, rationale, and science behind the conservation of the
flycatcher and removing the threat of extinction (USFWS 2002: 61-95).
This led to us to focus on the wide, but irregular distribution of this
bird, the dynamic nature of its habitat, and scientific principles
behind southwestern willow flycatcher metapopulation stability, gene
flow, ecological connectivity among disjunct populations, and
prevention of catastrophic losses (USFWS 2002: 61-95). In addition,
information provided during the comment periods for this proposed rule
and the draft economic and draft NEPA analyses were evaluated and
considered in the development of the final designation for southwestern
willow flycatcher.
The Recovery Plan (USFWS 2002: 61-95) identifies important factors
to consider in minimizing the likelihood of extinction: (1) Populations
should be distributed throughout the bird's range; (2) populations
should be distributed close enough to each other to allow for movement
among them; (3) large populations contribute most to metapopulation
stability; smaller populations can contribute to metapopulation
stability when arrayed in a matrix with high connectivity; (4) as the
population of a site increases, the potential to disperse and colonize
increases; (5) increase/decrease in one population affects other
populations; (6) some Recovery/Management Units have stable
metapopulations, others do not; (7) maintaining/augmenting existing
populations is a greater priority than establishing new populations;
and (8) establishing habitat close to existing breeding sites increases
the chance of colonization.
The Recovery Plan (USFWS 2002) outlined a recommended recovery
strategy for the southwestern willow flycatcher. We reviewed and
considered the pertinent information contained in the Recovery Plan
(USFWS 2002) in developing this critical habitat designation because it
represents a compilation of the best scientific data available to us.
We are required to base listing and critical habitat decisions on the
best scientific and commercial data available (16 U.S.C.
1533(b)(1)(A)). We may not delay making our determinations until more
information is available, nor can we be required to gather more
information before making our determination (Southwest Center for
Biological Diversity v. Babbitt, 215 F. 3d 58 (D.C. Cir. 2000)). This
critical habitat designation focuses on those Recovery Plan
recommendations that we believe are important in determining areas that
have essential features for the conservation of the species.
The focus of this designation is a conservation strategy which
relies on protecting large populations as well as small populations
with high connectivity (USFWS 2002: 74 to 75). Large populations,
centrally located, contribute the most to metapopulation stability,
especially if other breeding populations are nearby (USFWS 2002: 74).
Large populations persist longer than small ones, and produce more
dispersers capable of emigrating to other populations or colonizing new
areas (USFWS 2002: 74). Smaller populations in high connectivity can
provide as much or more stability than a single isolated population
with the same number of territories because of the potential to
disperse colonizers throughout the network of sites (USFWS 2002: 75).
This approach for defining critical habitat areas supports other key
central strategies tied to flycatcher conservation identified in the
Recovery Plan (USFWS 2002: 74 to 76) such as: (1) Populations should be
distributed close enough to each other to allow for movement; (2)
maintaining/augmenting existing populations is a greater priority than
establishing new populations; and (3) a population's increase improves
the potential to disperse and colonize.
Because large populations, as well as small populations with high
connectivity, contribute the most to metapopulation stability (USFWS
2002: 74), we identified these areas to help guide the delineation of
areas with features essential to the conservation of the southwestern
willow flycatcher (i.e., critical habitat). This rule defines a large
population as a single site or collection of smaller connected sites
that support 10 or more territories. We chose the baseline survey
period as the time from 1993 to 2003 (USFWS 2002: 23; Sogge et al.
2003; U.S. Geological Survey 2003; Smith et al. 2004; S.O. Williams,
NMGFD, e-mail 2004). This includes all known reliable survey
information that is available to us. We chose 10 or more territories to
identify a large population area because the population viability
analysis and the expertise of the Technical Recovery Team indicates a
breeding site exhibits greatest long-term stability with at least 10
territories (Lamberson et al. 2000; USFWS 2002: 72).
We are designating stream ``segments'' as critical habitat for the
southwestern willow flycatcher. The reaches designated provide for
flycatcher habitat (nesting, foraging, migrating, regenerating, etc.)
and allows for the changes in habitat locations or conditions from
those that exist presently. The actual riparian habitat in these areas
is expected to expand, contract, or change as a result of flooding,
drought, inundation, and changes in floodplains and river channels
(USFWS 2002: 18, D-13 to 15) that result from current flow management
practices and priorities. Stream segments include breeding sites in
high connectivity and other essential flycatcher habitat components
needed to conserve the subspecies. Those other essential components of
flycatcher habitat (foraging habitat, habitat for non-breeding
flycatchers, migratory habitat, regenerating habitat, streams, elevated
groundwater tables, moist soils, flying insects, and other alluvial
floodplain habitats, etc.) adjacent to or between sites, along with the
dynamic process of riparian vegetation succession and river hydrology,
provide current and future habitat for the flycatcher which is
dependent upon vegetation succession. As a result, these segments
represent the boundaries within which flycatcher habitat of all types
currently persist, and due to dynamic river processes, is expected to
persist over time. We used expert opinion, location of territories,
habitat models, existing dam and river operations, and the physical and
[[Page 60914]]
biological features essential to flycatcher conservation to determine
the boundaries of each river segment that would be proposed as critical
habitat for the subspecies.
In order to determine the degree of connectivity to assign
populations, we examined the known between-year within-drainage (same
river drainage) and between-drainage (separate river drainages)
movements of southwestern willow flycatchers (Luff et al. 2000; Kenwood
and Paxton 2002; USFWS 2002; Newell et al. 2003, 2005; E. Paxton, USGS,
e-mail). Using banding studies from 1997 to 2003 which were focused in
central AZ, scientists re-sighted 292 banded southwestern willow
flycatchers that, between years, moved within the same river drainage
and to different river drainages (Luff et al. 2000; Kenwood and Paxton
2001; E. Paxton, USGS, e-mail). Most recorded between-year movements (n
= 267) occurred within the same river drainage from 1.6 to 29 km (1 and
18 mi), but movements ranging from 40 km (25 mi) to as far as 440 km
(276 mi) were recorded for movements occurring between different river
drainages (Luff et al. 2000; Kenwood and Paxton 2001; E. Paxton, USGS,
e-mail). Flycatchers are not restricted to within river drainage
movements, but longer distance movements were infrequent and would not
be indicative of highly connected populations (USFWS 2002: 22, E.
Paxton, USGS, e-mail). Therefore, as a result of the known movements of
banded southwestern willow flycatchers, the ability of birds to move
between drainages, and the intent to capture collections of small
separate breeding sites, we chose a 29 km (18 mi) radius as the
distance to identify the high connectivity of collections of flycatcher
breeding sites.
As a result of defining the degree of connectivity to assign
populations, we identified territories (with a minimum of 10
territories) and areas containing features essential to the subspecies'
conservation or areas defined as essential habitat within a 29 km (18
mi) radius of each other to include as proposed critical habitat. This
approach captures habitat for the persistence of the largest and most
stable breeding populations in the best habitat throughout the
subspecies' range. These populations within these areas provide
metapopulation stability, gene flow, connectivity, and protects against
catastrophic losses. The large breeding populations found within these
segments provide dispersers that can colonize new breeding sites within
and outside of designated critical habitat. These segments also capture
habitat with features essential for non-breeding, dispersing,
migrating, and territorial southwestern willow flycatchers. As a result
of using this radius to identify areas containing features essential to
the subspecies' conservation or areas defined as essential habitat, it
accounts for the dynamic aspects of riparian habitat and allows for a
change in location, distribution, abundance, and quality of flycatcher
habitat over time.
Large populations or small populations with high connectivity did
not exist throughout the entire range of the bird (USFWS 2002: 30-33;
84 (Table 9)). For example, in the Amargosa, Santa Cruz, Hassayampa/
Agua Fria, San Juan, Lower Rio Grande, and Powell Flycatcher Management
Units there are no large sites with 10 or more territories, nor are any
known territories in these Units in high connectivity (less than 29 km/
18 mi) with a large population (greater than 10 territories). We are
not designating these areas as critical habitat because the areas do
not meet the criteria that we established for containing essential
features or essential habitat.
We adjusted the methodology used to determine essential habitat in
the Coastal CA Recovery Unit. Unlike the other Recovery Units in the
flycatcher's range, streams in the Coastal CA Recovery Unit are located
in closer proximity to each other and territories exist on a greater
number of streams. As a result, flycatcher breeding sites in this
Recovery Unit are almost all located in close proximity to one another.
Because of this, our methodology could not distinguish habitat with
essential features for the flycatcher. This caused us to further
scrutinize stream segments in these Management Units to determine which
had essential features for the flycatcher and which ones did not. In
order to do that, we had to rely on Recovery Plan recommendations,
distribution and abundance of territories, conservation goals, habitat
quality, and expert opinion to determine those segments with essential
features for this critical habitat designation.
Our approach in these Coastal CA Management Units was to still
target large populations and smaller breeding sites that together
equaled a large population. In the Santa Ynez, Santa Ana, and San Diego
Management Units we selected segments from streams with large
populations (Santa Ynez, Santa Ana, Santa Margarita and San Luis Rey
Rivers). In addition to these stream segments with large populations,
we selected other nearby stream segments with high quality habitat and
smaller numbers of territories to provide for population connectivity,
metapopulation stability, population growth, and protection against
catastrophic loss. We however, omitted some locations with lone
territories that were not believed to be essential. These omitted
locations were, compared to other habitat segments, believed to be of
lesser quality and did not contribute as much to connectivity,
stability, or protect against catastrophic loss. Consequently, there
are stream segments in the Coastal CA Recovery Unit, specifically in
the Santa Ana and San Diego Management Units in CA, where lone
territories exist that fell within the 29 km (18 mi) radius, but are
not being designated as critical habitat because they, when considered
within the entire range of habitats and stream segments selected in the
Coastal CA Recovery Units, are not believed to be essential for
inclusion in this critical habitat designation.
Lateral Extent
In order to determine the lateral extent of critical habitat for
the flycatcher, we considered the variety of purposes riparian habitat
serves the southwestern willow flycatcher, the dynamic nature of rivers
and riparian habitat, the relationship between the location of rivers,
flooding, and riparian habitat, and the expected boundaries, over time,
of these habitats.
Southwestern willow flycatchers use riparian habitat in a variety
of conditions for breeding, feeding, sheltering, cover, dispersal, and
migration stopover areas. Riparian habitat is dependent on the location
of river channels, floodplain soils, subsurface water, floodplain
shape, and is driven by the wide variety of high, medium, and low flow
events. Rivers can and do move from one side of the floodplain to the
other. Flooding occurs at periodic frequencies that recharge aquifers
and deposit and moisten fine floodplain soils that create seedbeds for
riparian vegetation germination and growth within these boundaries.
Over time, flycatcher habitat is expected to change its location
(Dockens and Paradzick 2004) as a result of shifting river channels,
flooding, drought, springs, seeps, and other factors such as
agricultural run-off, diversions, dam operations, and modifications of
riverbeds, etc. The methodology that we used to generate river segments
and map the river channel and associated alluvial areas within the
riparian zone is intended to identify locations where dynamic river
functions exist that create and maintain southwestern willow flycatcher
habitat for nesting, feeding, sheltering, cover, dispersal, and
migration.
[[Page 60915]]
In this designation, we consider the riparian zone to be the area
surrounding the select river segment which is directly influenced by
river functions. The boundaries of the lateral extent or riparian zone
(i.e., the surrogate for the delineation of the lateral boundaries of
critical habitat) were derived by one of two methods. The area was
either captured from existing digital data sources (listed below) or
created through expert visual interpretation of remotely sensed data
(aerial photographs and satellite imagery--also listed below).
Geographic Information System (GIS) technology was utilized throughout
the lateral extent determination. ESRI, Inc. ArcInfo 8.3 was used to
perform all mapping functions and image interpretation.
Pre-existing data sources used to assist in the process of
delineating the lateral extent of the riparian zones for this
designation included: (1) National Wetlands Inventory (NWI) digital
data from the mid 1980's, 2001, 2002; (2) Federal Emergency Management
Agency (FEMA) 1995, Q3 100 year flood data; (3) U.S. Census Bureau
Topologically Integrated Geographic Encoding and Referencing; and (4)
(TIGER) 2000 digital data.
Where pre-exiting data may not have been available to readily
define riparian zones, visual interpretation of remotely sensed data
was used to define the lateral extent. Data sources used in this
included: (1) Terraserver online Digital Orthophoto Quarter Quads
(DOQQs), black & white, 1990's era and 2001 (2) U.S. Geological Survey
(USGS) DOQQs 1997: (3) USGS aerial photographs, 1 meter, color-
balanced, and true color, 2002; (4) Landsat 5 and Landsat 7 Thematic
Mapper, bands 4, 2, 3, 1990-2000 (5) Emerge Corp, 1 meter, true color
imagery, 2001; (6) Local Agency Partnership, 2 foot, true color, 2000;
and (7) National Wetlands Inventory aerial photographs, 2001-2002.
We refined all lateral extents for this designation by creating
electronic maps of the lateral extent and attributing them according to
the following riparian sub-classifications. Riparian developed areas,
as defined below, are not included in our critical habitat designation
since these areas do not contain the primary constituent elements (see
``Primary Constituent Elements'' section above) and, therefore, do not
meet the definition of critical habitat.
(1) Riparian Vegetated: This class is used to describe areas which
can still support southwestern willow flycatcher habitat and features
essential to the subspecies' conservation (i.e., riparian forest,
vegetated and unvegetated wetlands, water bodies, any undeveloped or
unmanaged lands within the approximate riparian zone). Some of these
areas may encompass man-made features which support flycatcher habitat
such as ditches or canals.
(2) Riparian Developed: This class is used to describe all
developed areas found within the boundary of critical habitat with
existing physical infrastructure features that do not contain the PCEs
to support southwestern willow flycatcher habitat. Developed lands
include, urban/suburban development, agricultural fields, utility
structures, roads, mining/extraction pits, cement pads, and landscaped
residential areas which no longer contain the ability to develop the
PCEs.
Critical Habitat Designation
Critical habitat for the southwestern willow flycatcher is being
designated across a wide portion of the subspecies' range and is
organized in Management Units (as described in the Recovery Plan). We
are designating stream segments in 15 Management Units found in 5
Recovery Units as critical habitat for the southwestern willow
flycatcher and excluding or exempting from this designation various
river or stream segments previously proposed as critical habitat within
many of those units. For those areas that have been excluded or
exempted, a brief description of the segment is included and why it is
being excluded or exempted. More thorough discussions are provided in
the Exclusions under Section 4(a)(3) and 4(b)(2)of the Act and Summary
of Changes from the Proposed Rule portions of this rule. The stream
segments designated occur in southern CA, southern NV, southwestern UT,
AZ, and NM. Lands we are designating are under private, local agency,
county, State, Tribal, and Federal ownership.
In the development of southwestern willow flycatcher critical
habitat, we determined which lands have features essential to the
conservation of the species by defining the physical and biological
features essential to the species' conservation and delineating the
specific areas containing them. We then evaluated those lands
determined to have essential features to ascertain if any specific
areas are appropriate for exemption or exclusion from critical habitat
pursuant to either sections 4(a)(3) or 4(b)(2) of the Act. On the basis
of our evaluation, we have determined that the benefits of excluding
certain approved HCPs, lands owned and managed by the Department of
Defense, State and Federal Wildlife Areas, National Wildlife Refuges,
and Tribal and private lands under appropriate management for the
southwestern willow flycatcher outweighs the benefits of their
inclusion. We have subsequently excluded those lands from southwestern
willow flycatcher critical habitat pursuant to section 4(a)(3) and
4(b)(2) of the Act (refer to Exclusions under Section 4(b)(2) of the
Act section below).
The resulting designation, after exclusions and exemptions, is a
subset of lands that have features essential to the conservation of the
southwestern willow flycatcher or lands determined to be essential to
the conservation of the subspecies. Following exclusions and exemptions
some proposed river segments are completely removed, some are
effectively divided in half, and others had a variety of sections
removed. In a few cases, after exclusion or exemption, such a small
piece of the segment is left, that it was removed from critical habitat
because in the context of the protected segment, it was no longer
essential. In those instances, we provide an explanation below of those
small sections.
The value and purpose of each segment to flycatcher conservation
are shared throughout the designation; segments provide riparian
habitat for breeding, migrating, non-breeding, territorial, and
dispersing southwestern willow flycatchers. This is especially true due
to the dynamic nature of riparian habitat and the variety of purposes
and conditions that are used by the flycatcher for life-history needs.
A location in these segments that has a specific purpose today, such as
a breeding site, foraging location, or areas used for migration or
dispersal, can change over time (sometimes within a year or over a few
years). Changes can occur due to flooding, drought, fire, or choices in
land management. These changes can result in an increase or decrease in
habitat suitability, growth, and location depending on which influence
is exercised. Current breeding site locations, with few exceptions, are
described in the Recovery Plan with a code describing (USFWS 2002:
Figs. 3-11, 67-71) its general location. In this designation's proposal
(69 FR 60706), we described each segment and the most recent known
distribution of sites and territories.
The critical habitat areas described below constitute our best
assessment of the areas: (1) With essential habitat features within the
geographical area occupied by the species at the time of listing; (2)
that contain the PCEs; and (3) that may require special management.
Although all of the segments are within
[[Page 60916]]
the geographical area occupied by the species, we are not designating
all of the areas known to be occupied by the southwestern willow
flycatcher. We provide separate discussions on (1) the reasons why
these segments contain features essential for the conservation of the
southwestern willow flycatcher; (2) special management considerations
for these Units; and (3) if a unit was not known to be occupied at the
time of listing, we have described why we have determined the segment
to be essential to the conservation of the species.
Special Management Considerations or Protection
Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographic area occupied by the species on which are
found those physical and biological features (I) essential to the
conservation of the species and (II) which may require 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 rule, the
southwestern willow flycatcher and its habitat are threatened by a
multitude of factors occurring at once. Threats to those features that
define essential habitat (PCEs) are caused by various factors.
We believe the areas designated as critical habitat will require
some level of management and/or protection to address the current and
future threats to southwestern willow flycatchers and maintain the PCEs
essential to its conservation in order to ensure the overall
conservation of the species. Areas in need of management include not
only the immediate locations where the species may be present, but
additional areas adjacent to these that can provide for normal
population fluctuations and/or habitat succession that may occur in
response to natural and unpredictable events. The southwestern willow
flycatcher may be dependent upon habitat components beyond the
immediate areas where individuals of the species occur if they are
important in maintaining ecological processes such as hydrology; stream
flow; hydrologic regimes; plant germination, growth, maintenance,
regeneration (succession); sedimentation; groundwater elevations; plant
health and vigor; or maintenance of prey populations. The designation
of critical habitat does not imply that lands outside of critical
habitat do not play an important role in the conservation of the
flycatcher. Federal activities outside of critical habitat are still
subject to review under section 7 of the Act if they may affect the
flycatcher or its critical habitat (such as groundwater pumping,
developments, watershed condition, etc.). Prohibitions of section 9 of
the Act also continue to apply both inside and outside of designated
critical habitat.
A detailed discussion of threats to the southwestern willow
flycatcher and its habitat can be found in the final listing rule (60
FR 10694, February 27, 1995), the previous critical habitat designation
(62 FR39129, July 22, 1997), and the final Recovery Plan (August 2002).
Special management that may be needed for the southwestern willow
flycatcher is briefly summarized below:
(1) Manage fire to maintain and enhance habitat quality and
quantity. Suppress fires that occur. Restore groundwater, base flows,
flooding, and natural hydrologic regimes to prevent flammable exotic
species from developing and reducing fire risk. Reduce recreational
fires.
(2) Manage biotic elements and processes. Manage livestock grazing
to increase flycatcher habitat quality and quantity by determining
appropriate areas, seasons, and use constituent within the natural
historical norm and tolerances. Reconfigure grazing units, improve
fencing, and improve monitoring and documentation of grazing practices.
Manage wild and feral ungulates to restore desired processes to
increase flycatcher habitat quality and quantity. Manage keystone
species such as beaver to restore desired processes to increase habitat
quality and quantity.
(3) Manage exotic plant species such as tamarisk or Russian olive
by reducing conditions that allow exotics to be successful, and
restoring or re-establishing conditions that allow native plants to
thrive. To a large extent, abundance of exotic plants is a symptom of
land management (groundwater withdrawal, surface water diversion, dam
operation, over grazing) that has created conditions favorable to
exotics over native plants. Eliminate or reduce dewatering stressors
such as surface water diversion and groundwater pumping to increase
stream flow and groundwater elevations. Reduce salinity levels by
modifying agricultural practices and restoring natural hydrologic
regimes and flushing flood flows. Restore natural hydrologic regimes
that favor germination and growth of native plant species. Improve
timing of water draw down in lake bottoms to coincide with the seed
dispersal and germination of native species. Restore ungulate herbivory
to intensities and levels under which native riparian species are more
competitive.
(4) Retain native riparian vegetation in the floodplain. Prevent
clearing channels for flood flow conveyance or plowing of flood plains.
Manage projects to minimize clearing of native vegetation will help
ensure that the desired native species persist.
(5) Exotic plant species removal and native plant restoration
should be evaluated and conducted on a site-by-site basis. If habitat
assessment reveals sustained increase in exotic abundance, conduct
habitat evaluation of underlying causes and conduct restoration
pursuant to measures described in the Plan. Remove exotics only if:
Underlying causes for dominance have been addressed; there is evidence
that exotic species will be replaced by vegetation of higher functional
value; and the action is part of an overall restoration plan.
Restoration plans should include at least; a staggered approach to
create mosaics of different aged successional stands; and consideration
of whether the sites are presently occupied by nesting flycatchers.
Biocontrol agents should not be used within the occupied range of the
southwestern willow flycatcher.
(6) Protect riparian areas from recreational impact. Manage items
such as trails, campsites, off-road vehicles, fires, etc. to prevent
habitat degradation in order to maintain, protect, and develop
flycatcher habitat.
Justification of Including Areas Not Known To Be Within the Specific
Geographical Area Occupied by the Species at the Time of Listing
The areas included in this designation not known to be within the
specific geographic area occupied by the species at the time of listing
are portions of the bird's range associated with the large populations
in CA, NV, UT, and AZ. In the Santa Ana Management Unit, breeding
southwestern willow flycatchers were not known from streams associated
with the Santa Ana Drainage including the: Santa Ana River, Bear Creek,
Mill Creek, Oak Glen Creek, and Waterman Creek. In the San Diego
Management Unit, breeding southwestern willow flycatchers were not
known from the Santa Margarita River, Temecula Creek, Agua Hedionda
Creek, Santa Ysabel River, and Temescal Creek. In the Mohave Management
Unit, breeding southwestern willow
[[Page 60917]]
flycatchers were not known from the Deep Creek, Holcomb Creek, and
Mohave River. In the Virgin Management Unit, breeding southwestern
willow flycatchers were not known from the Virgin River in NV and UT.
And finally, breeding southwestern willow flycatchers were not known
from the East Fork of the Little Colorado River and the Little Colorado
River in AZ.
The river segments listed above are essential because they
represent areas with large breeding populations or a collection of
smaller breeding populations that together equals a large population.
Together with other areas known to be occupied at the time of listing,
these segments provide for a wide distribution of flycatcher
populations and other essential habitat needs such as migration,
dispersal, foraging, shelter, etc. As a result of targeting these large
populations, these segments represent the highest quality flycatcher
habitat, protection against simultaneous catastrophic loss, maintenance
of gene flow, prevention of isolation and extirpation, and colonizers
to new areas.
The known geographical area historically occupied by the subspecies
was once much larger (USFWS 2002). Historical records described nesting
birds in CA, NV, UT, CO, AZ, NM, and TX. At the time of listing in
February 1995 (USFWS 1995), the distribution and abundance of nesting
southwestern willow flycatcher populations, its habits, and areas
occupied by non-breeding, migrating, and dispersing southwestern willow
flycatchers were not well known. At the time of listing in February
1995, 359 territories (from limited 1994 survey data) were known only
from CA, AZ, and NM. Unitt (1987) estimated the entire population was
``well under a 1000 pairs, more likely 500,'' and 200 to 500
territories were estimated to exist in the proposal to list the
flycatcher (USFWS 1993).
Since listing, the known distribution and abundance of flycatcher
territories has increased primarily due to increased survey effort
(Durst et al. 2005). Population increases have also been detected at
specific areas where habitat improved. As a result of re-establishing
occupancy of nesting areas (especially in NV, UT, and CO) and from more
extensive surveys and research, the extent of riparian corridors
currently occupied by migrating, non-breeding, and dispersing
southwestern willow flycatchers has also expanded. As of the end of the
2003 breeding season (Durst et al. 2005), 1137 territories were known
in CA, NV, UT, CO, AZ, and NM. Territories have still not been detected
in TX. However migrant southwestern willow flycatchers may still move
through TX.
At the time of listing, breeding areas in CA, NV, UT, and CO
described by Unitt (1987) were adopted as the subspecies northern
boundary. However, the collection of genetic material across this part
of the bird's range has since refined this boundary (Paxton 2000). The
results of the DNA work reduced the extent of the northern boundary of
the southwestern subspecies. Territories once believed to be occupied
by southwestern willow flycatchers in UT and CO, now are more
accurately known to be of a different subspecies of the willow
flycatcher that is not currently listed. This genetic work also
confirmed the southwestern willow flycatcher subspecies throughout the
rest of its range.
As discussed above, southwestern willow flycatchers are believed to
exist and interact as groups of metapopulations (Lamberson et al. 2000;
Noon and Farnsworth 2000; USFWS 2002). A meta-population is a group of
spatially disjunct local willow flycatcher populations connected to
each other by immigration and emigration (USFWS 2002). The distribution
of willow flycatchers varies geographically (currently over a six-state
region) and is most stable where many connected sites and/or large
populations exist (Lamberson et al. 2000; USFWS 2002).
Most southwestern willow flycatcher breeding sites contain small
numbers of territories (Durst et al. 2005). Eighty-two percent of all
breeding sites between 1993 and 2003 contained five or fewer flycatcher
territories (Durst et al. 2005). Some locations no longer contain
flycatcher territories which can largely be attributed to a variety of
reasons that can in some cases be inter-related such as: Site
isolation; small numbers of territories; degraded habitat conditions;
habitat loss due to inundation, fire or drought; and the overall small
rangewide population size of this endangered subspecies.
Our methodology focused on identifying those areas with large
populations and those populations in high connectivity that together
constitute a large population. In areas such as the Santa Ana and San
Diego Management Units, where habitat was more fragmented and nearly
all territories were in close proximity, we had to be more selective,
because we did not believe all habitat was essential and thus should be
designated as critical habitat. We therefore targeted the largest
populations surrounding the Santa Margarita, Santa Ana, and San Luis
Rey river drainages (including adjacent tributaries). A by product of
targeting river segments with the largest populations is that they also
have the highest quality flycatcher habitat, the greatest chance of
long-term persistence, and the greatest source of dispersers. Also as a
result of the flycatcher's site fidelity, migration, and dispersal
behaviors, these habitats are reasonably certain to be used for
migrating and dispersing, and offer the greatest opportunity for growth
in the breeding population.
There are also many areas occupied at the time of listing that we
are not considering for inclusion in the critical habitat proposal. We
did not propose critical habitat along Bluewater Creek, Rio Chama, San
Francisco River, the lower Rio Grande, and the Little Colorado River
drainage in NM, the upper Santa Ynez River and Santa Clara River in CA,
and the Colorado River in Grand Canyon and San Francisco River in AZ.
Our methodology for identifying critical habitat segments only included
large populations or small populations that in high connectivity were
large, and these areas did not meet our criteria.
Because flycatcher habitat is dynamic, distribution of populations
throughout the bird's range is important to retain meta-population
stability, gene flow, prevention of simultaneous catastrophic loss, and
therefore prevention of local extirpation. For example, in central AZ
in early 2005, flooding caused the temporary loss or alteration of
habitat for approximately 200 pairs of flycatchers (about 42 percent of
the state's population) and about 15 percent of the entire subspecies
due to inundation and other flood related damages. While river flows
caused some significant change to nesting areas along the Verde, Salt,
Tonto, and Big Sandy river drainages, river flow was not as severe on
the San Pedro, Gila, Lower Colorado, and Bill Williams river drainages.
Habitat on these drainages that were not as severely changed will be
important for existing and displaced flycatchers. In turn, the critical
habitat designation will be important in those areas which were
disturbed in order for them to recover. This scenario is expected to
occur across the subspecies range in any given year and over time.
Conservation of the flycatcher is largely focused on increasing the
number of populations and decreasing the distance between them (USFWS
2002). Meta-population persistence or stability is more likely to
increase by adding more sites rather than adding more territories to
existing sites (Lamberson et al. 2000; USFWS 2002). Because riparian
habitat is dynamic and
[[Page 60918]]
is widely, but sparsely distributed, flycatcher meta-population
stability, population connectivity, gene flow, and avoidance of
simultaneous catastrophic loss can be achieved by: Birds being
distributed throughout its range, birds being close enough to each
other to allow for interaction; having large populations and a matrix
of smaller sites with high connectivity; and establishing habitat close
to existing breeding sites, thereby increasing the chance of
colonization (USFWS 2002). As the population at a site increases, the
potential to disperse and colonize new areas increases (Lamberson et
al. 2000). The segments not known to be occupied at the time of listing
are essential individually to the stability and persistence of a local
breeding population, metapopulation, and connectivity of the entire
subspecies, plus habitat for migrating, dispersing, and nonbreeding
southwestern willow flycatchers.
Critical Habitat Unit Descriptions
Below are tables, lists, and descriptions of the critical habitat
segments. In order to help further understand the location of these
stream segments please see the associated maps found within this rule
and examine additional maps at http://www.fws.gov/arizonaes/. These
additional maps will show areas that have been excluded from this final
designation. To determine with specificity, the lateral extent
boundaries of critical habitat, please see the electronic data layers
found at http://criticalhabitat.fws.gov. The following tables describe:
(1) Lands being excluded and exempted from this critical habitat
designation pursuant to section 4(b)(2) and 4(a)(3) of the Act (Table
2); (2) approximate area designated by land ownership per State (Table
3).
Table 2.--Approximate Area ha (ac)/km (mi) Excluded and Exempted From Southwestern Willow Flycatcher Critical
Habitat Pursuant to Section 4(b)(2) and 4(a)(3)of the Act
----------------------------------------------------------------------------------------------------------------
AZ CA CO, NM, NV, UT
----------------------------------------------------------------------------------------------------------------
Exempted and Excluded Area Totals...................... 36871 (91111) / 18884 (46563) / 38875 (96063) /
303 (188) 361 (224) 267 (166)
----------------------------------------------------------------------------------------------------------------
Table 3.--Southwestern Willow Flycatcher Critical Habitat by Land Ownership per State in ha (ac)/km (mi)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal State Private Other Totals
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ....................................................... 5296 (13087) / -- 1136 (2806) / -- 15856 (39182) / -- 89 (221) -- 22377 (55296) /
519 (323)
CA....................................................... 846 (2092) / -- 333 (823) / -- / -- / -- 5658 (17212) / -- 6966 (17212) /
-- 313 (195)
CO....................................................... -- / -- -- / -- -- / -- -- / -- -- / --
NM....................................................... 2596 (6416) / -- 86 (214) / -- 14052 (34724) / -- 16735 (41353) / -- 16735 (41353) /
510 (317)
NV....................................................... 1118 (2763) / -- -- / -- 495 (1223) -- / -- / -- 1613 (3986) /30 /
(19)
UT....................................................... 195 (483) / -- 10 (26) / -- 999 (2468) -- -- / -- 1205 (2977) / 37
(23)
Totals............................................... 10052 (24840) /-- 1566 (3869) / -- 31403 (77598) / -- 5875 (14518) / -- 48896 (120824) /
1186 (737)
--------------------------------------------------------------------------------------------------------------------------------------------------------
The 5 Recovery and 15 Management Units, and designated stream
segments are:
Coastal California Recovery Unit
(1) Santa Ynez Management Unit--Santa Ynez River
(2) Santa Ana Management Unit--Santa Ana River, Bear Creek, Mill Creek,
Oak Glen Creek, and Waterman Canyon.
(3) San Diego Management Unit--Santa Margarita River, San Luis Rey
River, Pilgrim Creek, Agua Hedionda Creek, San Ysabel River, Temescal
Creek, and Temecula Creek.
Basin and Mohave Recovery Unit in California
(4) Kern Management Unit--South Fork Kern River
(5) Mohave Management Unit--Deep Creek, Holcomb Creek, and Mohave River
(6) Salton Management Unit--San Felipe Creek
Lower Colorado Recovery Unit--Nevada, California/Arizona Border,
Arizona, Utah
(7) Little Colorado Management Unit--Little Colorado River, and West
and East Forks of the Little Colorado River, AZ
(8) Virgin Management Unit--Virgin River, NV/AZ/UT
(9) Bill Williams Management Unit--Big Sandy River, AZ
Gila Recovery Unit in Arizona and New Mexico
(10) Verde Management Unit--Verde River, AZ
(11) Roosevelt Management Unit--Salt River and Tonto Creek, AZ
(12) Middle Gila/San Pedro Management Unit--Gila and San Pedro River,
AZ
(13) Upper Gila Management Unit--Gila River in AZ/NM
Rio Grande Recovery Unit in New Mexico
(14) Upper Rio Grande Management Unit--Coyote Creek, Rio Grande, and
Upper Rio Grande del Rancho, NM
(15) Middle Rio Grande Management Unit--Rio Grande, NM
Coastal California Recovery Unit
The Coastal CA Recovery Unit stretches along the coast of southern
CA from just north of Point Conception south to the Mexico border. In
2003, there were an estimated 165 southwestern willow flycatcher
territories in this Recovery Unit (15 percent of the rangewide total)
(Durst et al. 2005). A total of 149 territories were estimated in the
three Management Units included in this designation (Santa Ynez: n = 8
territories, Santa Ana: n = 41 territories, San Diego: n = 100
territories). No critical habitat is being designated in the Santa
Clara
[[Page 60919]]
Management Unit. In 2001, territories were distributed along 15
watersheds, mostly in the southern third of the Recovery Unit (USFWS
2002: 64). The largest number of territories are within the San Luis
Rey (n = 67), Santa Margarita (n = 19), and Santa Ana (n = 40)
watersheds (Durst et al. 2005). In 2001, all territories occurred in
native or native-dominated habitats; over 60 percent were on
government-managed lands (Federal, State, and/or local) (USFWS 2002:
64). This Recovery Unit contains designated segments within the Santa
Ynez, Santa Ana, and San Diego Management Units. The stream segments
designated as critical habitat are described below in their appropriate
Management Units.
Santa Ynez Management Unit
We are designating a 32 km (20 mi) Santa Ynez River segment in
Santa Barbara County, CA. This is the only stream in the Santa Ynez
Management Unit to have nesting southwestern willow flycatchers and is
northernmost along coastal CA. While a total of three sites are known
along the length of the Santa Ynez River, our designated segment holds
a single breeding site. A high of 28 territories were detected at this
breeding site in 2000. In 2003, four territories were known at this
site. Southwestern willow flycatchers have been detected nesting on the
Santa Ynez River since 1994.
Santa Ana Management Unit
The Santa Ana River is the single largest river system in southern
CA with flycatchers distributed throughout the stream from its
headwaters/tributaries in the San Bernardino Mountains in San
Bernardino County, CA, downstream to Riverside County. We are
designating two segments (an upper 40.8 km/25.3 mi segment and a 13.6
km/ 8.5 mi lower segment) of the Santa Ana River in San Bernardino
County (after removing a non-essential approximate 18 km/11 mi segment
immediately below Seven Oaks Dam through the Santa Ana wash--see
justification below) and other segments with high connectivity near its
headwaters. In San Bernardino County we are designating 14.2 km (8.8
mi) of Bear Creek, 19.2 km (11.9 mi) of Mill Creek, 4.1 km (2.6 mi) of
Waterman Creek, and 4.5 km (2.8 mi) of Oak Glen Creek.
The combination of these streams provides riparian habitat for
breeding, migrating, dispersing, non-breeding and territorial
southwestern willow flycatchers, metapopulation stability, gene flow,
connectivity, population growth, and prevention against catastrophic
loss. There are seven breeding sites known along the Santa Ana River,
one breeding site on Bear Creek, three breeding sites on Mill Creek,
one breeding site on Waterman Creek, one breeding site on Oak Glen
Creek, one breeding site on San Timoteo Wash, and no breeding sites on
Wilson or Yucaipa creeks (USGS 2004). Durst et al. (2005) estimated 40
territories were on the Santa Ana River drainage in 2003.
Portions of the Santa Ana Watershed in Riverside County identified
as having features essential for the southwestern willow flycatcher
(the lower Santa Ana River, Yucaipa Creek, Temecula Creek, and Vail
Lake on Temecula Creek) that lie within the boundaries of the Western
Riverside MSHCP are being excluded from this critical habitat
designation (see Relationship of Critical Habitat to Approved Habitat
Conservation Plans--Exclusions Under Section 4(b)(2) of the Act).
We have re-evaluated an approximate 18 km (11 mi) portion of the
Santa Ana River immediately below Seven Oaks Dam, and portions of San
Timoteo Wash, Yucaipa Creek, Wilson Creek, Oak Glen Creek, and Mill
Creek. The portion of the Santa Ana Wash has little riparian habitat,
is dry, and is not expected to develop riparian vegetation that can
support nesting southwestern willow flycatchers due to the lack of
surface water flow and the long-term establishment of Riversidean
alluvial fan sage scrub vegetation in this area. Therefore, we have
removed this approximate 18 km (11 mi) wash segment of the Santa Ana
River to more accurately define the essential boundary of the critical
habitat designation. To further more accurately define the essential
boundaries of critical habitat, we reviewed and also removed segments
of San Timoteo Wash, Yucaipa Creek, and Wilson Creek, and the lower
portion of Mill Creek. Through further analysis of habitat, we have
determined that these segments do not have areas with the appropriate
topography, vegetation, or water that we would expect to support
nesting southwestern willow flycatcher habitat, and therefore, we have
removed them from this designation.
San Diego Management Unit
The longest two streams in the San Diego Management Unit, the San
Luis Rey and Santa Margarita Rivers, contain the largest numbers of
flycatcher territories within this Management Unit. In addition to
these two streams, we are designating a collection of smaller streams
within the Unit. Collectively, these segments contain essential
features for breeding, non breeding, territorial, migrating, and
dispersing southwestern willow flycatchers and help provide
metapopulation stability, population growth, gene flow, connectivity,
and protection against catastrophic losses. In 2003, Durst et al.
(2005) estimated a total of 100 territories for the entire San Diego
Management Unit, with 86 territories on these two river drainages.
We are designating an 9 km (5.6 mi) segment of the Santa Margarita
River and a 1.6 km (1 mi) segment of De Luz Creek in San Diego County,
CA, upstream of Camp Pendleton. Territories have been detected on the
Santa Margarita River at Camp Pendleton since 1994. A high of 22
territories in 2002 and 19 in 2003 were detected at the two known
breeding sites on the Santa Margarita River on Camp Pendleton. The
segment upstream from Camp Pendleton maintains a diversity of riparian
vegetation used by dispersing and migrating southwestern willow
flycatchers and the ability to develop breeding habitat for population
growth or discovery of undetected territories.
We are designating six segments of the San Luis Rey River and the
lowest 5 km (3.1 mi) portion of Pilgrim Creek in San Diego County, CA.
Five separate segments of the San Luis Rey River are located upstream
(7.5 km/4.7 mi), adjacent to (0.75 km/0.5 mi, 1 km/0.6 mi), between
(1.7 km/1 mi), and immediately (3 km/1.9 mi) below the La Jolla and
Rincon and Indian Tribes. The lowest 51.3 km/32 mi segment of the San
Luis Rey River is a contiguous segment extending to the ocean. A total
of eight breeding sites (seven on San Luis Rey River and one on Pilgrim
Creek) are spread along the length of these streams. Breeding sites
have been detected since 1994. Durst et al. (2005) reported 67
territories from the San Luis Rey River drainage with a single site on
the upper San Luis Rey River holding 44 territories. A single breeding
site exists on Pilgrim Creek where one to two territories were detected
in 1994, 1995, and 1999.
We are designating a short 3.2 km (2 mi) portion of Agua Hedionada
Creek in San Diego County, CA. A single territory was detected from
1998 to 2000. No territories were detected from 2001 to 2003.
We are designating joining segments of Temescal Creek (7 km/4.4 mi)
and Santa Ysabel River (6 km/3.7 mi) in San Diego County, CA. Both
segments are found upstream of known breeding sites that are being
excluded due to their inclusion in the San Diego County MSCP. As a
result, these two segments currently provide habitat for dispersing
[[Page 60920]]
and migrating flycatchers and locations for population growth and/or
discovery of undetected territories.
We are designating a 5.1 km (3.2 mi) segment of Temecula Creek in
San Diego County, CA. Two breeding sites are known from Temecula Creek,
with one occurring on the designated segment. Territories were first
detected in 1997, and Durst et al. (2005) reported a single territory
for 2003.
Habitat with features essential for the southwestern willow
flycatcher identified within the boundaries of the San Diego MSCP on
the San Dieguito River (including Lake Hodges), San Diego River, and a
portion of Santa Ysabel River is being excluded from this critical
habitat designation (see Relationship of Critical Habitat to Approved
Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of the Act
section below).
Habitat with features essential for the southwestern willow
flycatcher identified within the boundaries of Marine Corps Base, Camp
Pendleton on Cristianitos, San Mateo, San Onofre, Los Flores/Las
Pulgas, Pilgrim, and DeLuz Creeks, and the Santa Margarita River are
being excluded from this critical habitat designation (see Relationship
of Critical Habitat to Military Lands--Application of Section 4(a)(3)
and Exclusions Under Section 4(b)(2) of the Act section below).
Habitat with features essential for the southwestern willow
flycatcher on portions of the Santa Margarita River located within the
boundaries of the Seal Beach Naval Weapons Station, Fallbrook
Detachment, is being excluded from this critical habitat designation
(see Relationship of Critical Habitat to Military Lands--Application of
Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section
below).
Habitat with features essential for the southwestern willow
flycatcher identified within the boundaries of the City of Carlsbad's
HMP at Agua Hedionda Lagoon and Agua Hedionda Creek is being excluded
from this critical habitat designation (see Relationship of Critical
Habitat to Approved Habitat Conservation Plans--Exclusions Under
Section 4(b)(2) of the Act section below).
Habitat with features essential for the southwestern willow
flycatcher was identified within the boundaries of Rincon and La Jolla
Tribal Lands along the San Luis Rey River. These Tribes developed,
completed, and are implementing actions described in their Southwestern
Willow Flycatcher Management Plans. As result, we are excluding these
tribal lands from the critical habitat designation (see Relationship of
Critical Habitat to American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act section below).
We have re-evaluated our determination of the essential nature of
the habitat features at Cuyamaca Lake. We determined that the small
amount of habitat and disjunct nature from any other locations in the
Santa Ana or Salton Management Units provided minimal habitat for
metapopulation stability or prevention against catastrophic loss. As a
result, this segment is no longer considered essential habitat and we
have removed it from this designation.
We have re-evaluated our determination of the essential nature of
the habitat features associated with a short segment of Cristiantos
Creek upstream of Camp Pendleton. Further evaluation concluded that
there was little riparian habitat due to the lack of flowing water. As
a result, we no longer consider this segment as essential habitat and
we have removed it from this designation.
We have re-evaluated our determination of the essential nature of
the most upstream portions of the Santa Ysabel River, Temescal Creek,
Temecula Creek, and San Diego River. The Cleveland National Forest
provided comments describing specific portions that they believe do not
provide the appropriate habitat for southwestern willow flycatchers
because the vegetation is not dense, water is intermittent, understory
(i.e. vegetation below the tree canopy) is absent, and could not
improve for flycatchers as a result of Forest Service management. The
Forest provided pictures and more accurate boundaries for these habitat
segments. We agree with their assessment and have shortened these four
segments to more accurately reflect in our designation the essential
habitat on these river segments.
Basin and Mohave Recovery Unit
This unit is comprised of a broad geographic area including the
arid interior lands of southern CA and a small portion of extreme
southwestern NV. For 2003, Durst et al. (2005) estimated 61 flycatcher
territories at 16 sites (5 percent of the rangewide total) were
distributed among widely separated drainages. Almost all sites had less
than five territories; the exception was the largest breeding sites on
the Kern and Owens River drainages (USFWS 2002:64). In 2002, all
territories were in native or native-dominated riparian habitats, and
approximately 70 percent were on privately owned lands (USFWS 2002:64).
The Recovery Unit contains the Owens, Kern, Mohave, Salton, and
Amargosa Management Units. Stream segments designated in this proposal
are found in the Kern, Mohave, and Salton Management Units.
Owens Management Unit
Habitat with features essential for the southwestern willow
flycatcher identified along the Owens River are being managed by the
Los Angeles Department of Water and Power (LADWP) and are being
conserved through implementation of their Southwestern Willow
Flycatcher Conservation Strategy. LADWP entered into a Memorandum of
Understanding with the Service to implement these conservation actions.
As a result, the entire 82.6 km (51.3 mi) Owens River, with 5 known
breeding sites holding 28 territories as of 2003 (Durst et al. 2005) in
Inyo and Mono Counties, CA, is being excluded from this critical
habitat designation (see Relationship of Critical Habitat to
Partnerships and Conservation Plans/Easements on Private Lands--
Exclusions Under Section 4(b)(2) of the Act section below).
Kern Management Unit
We are designating a 15.5 km (9.6 mi) segment of the South Fork of
the Kern River in Kern County, CA. This is the only stream segment in
the Kern Management Unit known to have nesting southwestern willow
flycatchers. Southwestern willow flycatchers have been detected nesting
at two sites along this reach of the Kern River since 1993. In 1997, a
high of 37 territories were detected at a single location. In 2003, 20
territories were reported from a single site (Durst et al. 2005).
Habitat with features essential for the southwestern willow
flycatcher identified on the Haffenfeld Ranch along the South Fork of
the Kern River is being excluded due to a conservation easement
established with the National Resource Conservation Service (NRCS)
specific to protecting habitat needs of the southwestern willow
flycatcher. As a result of the protections provided through this
easement, this property is being excluded from this critical habitat
designation (see Relationship of Critical Habitat to Partnerships and
Conservation Plans/Easements on Private Lands--Exclusions Under Section
4(b)(2) of the Act section below).
Two pieces of Federal land (Sprague Ranch and South Fork Kern
Wildlife Area) with habitat features essential for the southwestern
willow flycatcher within the Kern Management Unit are being excluded
due to protections assured by their long-term commitments
[[Page 60921]]
to management programs specific to the riparian habitat and needs of
the flycatcher. The Sprague Ranch was recently purchased specifically
for the conservation needs of the southwestern willow flycatcher and is
co-managed by the U.S. Army Corps of Engineers (Corps), the California
Department of Fish and Game (CDFG), and the National Audubon Society
(Audubon). The South Fork Kern River Wildlife Area, located at the
upper end of Lake Isabella and Kern River immediately above the lake is
co-managed by the Corps and the U.S. Forest Service to protect riparian
habitat values. Both of these properties are managed in accordance with
a long-term biological opinion and are being excluded from this
critical habitat designation (see Relationship of Critical Habitat to
Federal Conservation Programs--Exclusions Under Section 4(b)(2) of the
Act section below).
Mohave Management Unit
We are designating a 16.1 km (10 mi) portion of the Mojave River, a
18.8 km (11.7 mi) section of Holcomb Creek, and a 20.3 km (12.6 mi)
section of Deep Creek (including the uppermost portion of Mohave River
Forks Reservoir) in San Bernardino County, CA, near the Town of
Victorville. Since 1995, southwestern willow flycatchers have been
detected nesting at three sites along this reach of the Mojave River,
one site on Holcomb Creek, and zero sites on Deep Creek. Deep Creek
connects Holcomb Creek with the Mohave Forks Reservoir and provides
riparian habitat for dispersal and migration, and areas for population
growth. In 2002, a high of 13 territories were detected at all 5 sites
within these segments; however in 2003, 10 territories were recorded
(Durst et al. 2005).
Salton Management Unit
We are designating an 11 km (6.8 mi) portion of San Felipe Creek in
San Bernardino County, CA. This is the only stream in the Salton
Management Unit known to have nesting southwestern willow flycatchers.
Southwestern willow flycatchers have been detected nesting at a single
site since 1998. In 1998 and 1999, a high of four territories were
detected on this stream segment. In 2003, two territories were
estimated from this site (Durst et al. 2005). This stream and the
territories on it have high connectivity with other smaller populations
in the adjacent San Diego Management Unit in the Coastal CA Recovery
Unit raising the collective population above 10 territories.
Lower Colorado Recovery Unit
This is a geographically large and ecologically diverse Recovery
Unit, encompassing the Colorado River and its major tributaries from
the high elevation streams in the White Mountains of East/Central
Arizona to the main stem Colorado River through the Grand Canyon and
continuing downstream through the arid lands along the lower Colorado
River to the Mexico border (USFWS 2002:64). In 2003, despite its size,
the Unit was estimated to have only 150 known flycatcher territories
(13 percent of the rangewide total) (Durst et al. 2005), most of which
occur away from the main-stem Colorado River (Sogge et al. 2003). The
largest populations are found on the Bill Williams, Virgin, and
Pahranagat River drainages (USFWS 2002:64). In 2002, approximately 69
percent of territories are found on government-managed lands, and 8
percent are on Tribal lands (USFWS 2002:64). Habitat characteristics
range from purely native (including high-elevation and low-elevation
willow) to exotic (primarily tamarisk) dominated stands (USFWS
2002:64). This Recovery Unit contains the Little Colorado, Middle
Colorado, Virgin, Pahranagat, Bill Williams, Hoover to Parker, and
Parker to Southerly International Border Management Units. Stream
segments are being designated within the Little Colorado, Virgin, and
Bill Williams Management Units.
Little Colorado Management Unit
We are designating a portion of the Little Colorado River and
portions of the East and West Forks of the Little Colorado River in
Apache County, AZ. The 11.2 km (7 mi) segment of the East Fork of the
Little Colorado River extends from Forest Service Road 113 downstream
to its confluence with the West Fork of the Little Colorado River and
Little Colorado River. The 8 km (5 mi) section of the West Fork of the
Little Colorado goes from just upstream of Forest Service Road 113
downstream to its confluence with the East Fork Little Colorado River
and Little Colorado River. The Little Colorado River segment extends
for 15.8 km (9.8 mi) downstream from the confluence of the East and
West Forks to the diversion ditch near the Town of Greer.
Southwestern willow flycatchers have been detected nesting at
single sites on both the Little Colorado and West Fork of the Little
Colorado since 1993. In 1996, a high of 11 territories were detected at
both locations on the West Fork and Little Colorado Rivers. In 2003,
two territories were detected on these segments. Due to its close
proximity, the East Fork of the Little Colorado River is currently
expected to be used for dispersing and migrating southwestern willow
flycatchers and have the features to develop breeding habitat for
southwestern willow flycatchers for population growth and stability.
We re-evaluated the 7 km (4 mi) segment of the South Fork of the
Little Colorado River extending from Joe Baca Draw downstream to its
confluence with the Little Colorado River and removed it from this
designation. We visited the South Fork of the Little Colorado River on
September 22, 2004, with Forest Service personnel and determined that
the floodplain is not wide enough to support habitat currently known to
be used by breeding southwestern willow flycatchers. While it is
expected to be used by migrating southwestern willow flycatchers, our
approach was to target stream segments that would serve a combination
of purposes, including breeding habitat. Therefore, because it did not
have nesting habitat, nor did we believe the topography allowed it to
be able to develop nesting habitat, we no longer believe it is
essential habitat and we have removed it from the designation.
Middle Colorado Management Unit
The upper most portion of the conservation space of Lake Mead,
including the Colorado River to river mile 243, was identified as
having features essential to the flycatcher in Mohave County, AZ.
Southwestern willow flycatchers have been detected nesting at 14 sites
along this reach of the Colorado River since 1993. In 1998, a high of
15 territories at 8 breeding sites were detected within this segment
(USGS 2004). In 2003, no territories were detected on this stream
segment, and in 2004, two territories were found (Munzer et al. 2005).
The conservation space of Lake Mead and the Colorado River immediately
upstream is covered under the Lower Colorado River Multi-Species
Conservation Plan (LCR MSCP) up to full pool elevation of Lake Mead.
The full pool elevation is defined by water surface elevation 1,229
feet National Geodetic Vertical Datum which extends up to near river
mile 235 at Separation Canyon. As a result of upper portion of Lake
Mead and Colorado River through river mile 235 being covered under the
LCR MSCP, this entire segment is being excluded from this critical
habitat designation (see Relationship of Critical Habitat to Approved
Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of the Act
section below).
[[Page 60922]]
The Colorado River above Lake Mead on the Hualapai Nation was
identified as having features essential to the southwestern willow
flycatcher. The Nation developed, completed, and is implementing
actions described in their Southwestern Willow Flycatcher Management
Plan. As a result, and in conjunction with coverage under the LCR MSCP,
the southern bank of the Colorado River on Hualapai Lands is being
excluded from this designation (see Relationship of Critical Habitat to
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act section below).
Virgin Management Unit
We are designating a contiguous segment of the Virgin River in UT,
AZ, and NV. The segment extends for 118.7 km (73.8 mi) from the
Washington Field Diversion Impoundment in Washington County, UT,
downstream through the Town of Littlefield, AZ, and ends in NV at the
upstream boundary of the Overton State Wildlife Area in Clark County,
NV. This segment exists for 36.7 km (22.8 mi) in UT, approximately 52
km (32.3 mi) through AZ, and 30 km (18.6 mi) in NV. The Virgin River is
the only stream within this Management Unit and within UT known to have
nesting southwestern willow flycatchers. Southwestern willow
flycatchers have been detected nesting in 1995 at three sites in the NV
segment, a single site in the AZ segment since 2001, and two sites in
the UT segment since 1995. In 2001, a high of 40 territories were
detected at 5 of the 6 sites within the proposed designation (36 in NV,
1 in AZ, and 3 in UT). In 2003, 37 territories were detected at 4 of
the 6 sites (Durst et al. 2005).
The Overton State Wildlife Area encompasses a segment of the Virgin
River where it enters into Lake Mead. This segment of the Virgin River
was identified as having features essential to the southwestern willow
flycatcher. As a result of the State of Nevada's management of this
property for wildlife and riparian habitat for the flycatcher, this
segment is being excluded from this designation (see Relationship of
Critical Habitat to State and Federal Wildlife Conservation Areas--
Exclusions Under Section 4(b)(2) of the Act section below).
A 1.2 km (2 mi) (approximately 158 ha/390 ac of riparian habitat)
segment of the Virgin River exists between two excluded areas of the
Overton State Wildlife Area. About 61ha (150 ac) of this area was
purchased by the Bureau of Reclamation for conservation of wildlife and
riparian habitat, with the possibility of turning management over to
the State of Nevada. As a result of this remaining 1.2 km (2 mi)
segment being surrounded by conservation lands, being detached from a
considerably larger designated segment, being a very small piece of an
overall larger segment that is being excluded from critical habitat,
and because a significant portion was purchased for the conservation of
wildlife, it is our determination that this segment is no longer
essential habitat and we have removed it from the final designation.
Pahranagat Management Unit
The Pahranagat River, within the Pahranagat National Wildlife
Refuge and Key Pittman State Wildlife Area in Lincoln County, NV, and
the Muddy River within the boundaries of the Overton State Wildlife
Area in Clark County, NV, were identified as having features essential
to the southwestern willow flycatcher. Durst et al. (2005) reported 21
territories from these three locations in 2003. As a result of the
Service's management of this National Wildlife Refuge and the State of
Nevada's management of the Key Pittman and Overton Wildlife Areas for
wildlife and riparian habitat for the flycatcher, all of the three
segments proposed in this Management Unit are being excluded from this
designation (see Relationship of Critical Habitat to National Wildlife
Refuge Lands--Exclusions Under Section 4(b)(2) of the Act and
Relationship of Critical Habitat to State and Federal Wildlife
Conservation Areas--Exclusions Under Section 4(b)(2) of the Act
sections below).
Bill Williams Management Unit
We are designating a 30.4 km (18.9 mi) segment of the Big Sandy
River from the Town of Wikieup to Groom Peak Wash, in Mohave County,
AZ. This segment contains a known breeding site (15 territories in 2003
and 28 in 2004), habitat for dispersing, migrating, and non-breeding
southwestern willow flycatchers, as well as areas for population
growth.
We re-evaluated the upper most portion of the Big Sandy River
segment, examined habitat models (Dockens and Paradzick 2004),
consulted local experts, and determined that due to the intermittent
surface flow of this stream, there is a limited amount of riparian
habitat that is able to support nesting habitat for southwestern willow
flycatchers. Thus, we shortened this segment to more accurately reflect
the essential nature of this segment for the flycatcher by removing the
northern-most (12.9 km/20.8 mi) portion from the designation.
The Alamo Lake State Wildlife Area, which includes the Big Sandy,
Santa Maria, and Bill Williams River confluence area (included within
upper Alamo Lake), in Mohave and La Paz Counties, AZ, was identified as
having features essential to the southwestern willow flycatcher. A
total of 31 territories were detected in 2004. As a result of the State
of AZ's management of this Area for wildlife and riparian habitat for
the flycatcher, all of the river segments within this Wildlife Area are
being excluded from this designation (see Relationship of Critical
Habitat to State and Federal Wildlife Conservation Areas--Exclusions
Under Section 4(b)(2) of the Act section below).
The Bill Williams River within the Bill Williams National Wildlife
Refuge was identified as having features essential to the southwestern
willow flycatcher. A total of two territories were detected on the
refuge in 2004. As a result of the Service's management of the refuge
for wildlife and riparian habitat for the flycatcher, the Bill Williams
River within the refuge boundary is being excluded from this
designation (see Relationship of Critical Habitat to National Wildlife
Refuge Lands--Exclusions Under Section 4(b)(2) of the Act section
below).
We re-evaluated the remaining approximately 1.6 km (1 mi) section
of habitat along the Bill Williams River above the Bill Williams NWR
(primarily occurring on Planet Ranch). This location is dominated by
farm fields associated with the Ranch, and subsequently has little
habitat for the southwestern willow flycatcher (U.S. Bureau of
Reclamation 2005). There is potential for habitat improvement for the
southwestern willow flycatcher but it would take a significant change
in land operations, money, time, and effort, and may be more likely to
develop habitat for yellow-billed cuckoos (U.S. Bureau of Reclamation
2005). We encourage continued management of the resources of this Ranch
with respect to downstream riparian values, and toward developing
future habitat for the southwestern willow flycatcher. But due to the
present condition and the changes required to convert existing
locations to flycatcher habitat, we have concluded it is not essential
habitat, and have therefore removed it from the designation.
Hoover to Parker Management Unit
A 107 km (66.5 mi) segment of the Colorado River from Davis Dam to
Parker Dam (including the Havasu National Wildlife Refuge, Fort Mohave
Tribe, and Chemehuevi Tribe) in
[[Page 60923]]
Mohave and La Paz County, AZ, and San Bernardino County, CA, was
identified as having features essential to the southwestern willow
flycatcher and proposed as critical habitat. Six breeding sites are
known from this segment, with the largest at Topock Marsh having 34
territories in 2004. As a result of the completion of the Lower
Colorado River MSCP, Service management of Havasu National Wildlife
Refuge for riparian habitat, and implementation of completed
Southwestern Willow Flycatcher Management Plans by the Chemehuevi and
Fort Mohave Tribes, this entire river segment is being excluded from
this designation (see Relationship of Critical Habitat to American
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act, Relationship of Critical Habitat to National
Wildlife Refuge Lands--Exclusions Under Section 4(b)(2) of the Act, and
Relationship of Critical Habitat to Approved Habitat Conservation
Plans--Exclusions Under Section 4(b)(2) of the Act sections below).
Parker to Southerly International Border Management Unit
A 24.1 km (15 mi) Colorado River segment in La Paz and San
Bernardino Counties, CA, and another 74.4 km (46.2 mi) Colorado River
segment in La Paz and Yuma, Counties, AZ, and Imperial CA (including
Cibola and Imperial National Wildlife Refuges, Colorado River and Fort
Yuma (Quechan) Tribes) were identified as having features essential to
the southwestern willow flycatcher and proposed as critical habitat. A
high of 13 territories at 10 sites were detected on this segment in
1996, and 2 were detected in 2003. As a result of the Lower Colorado
River MSCP, Service management of Cibola and Imperial National Wildlife
Refuges, and implementation of completed Southwestern Willow Flycatcher
Management Plans by the Colorado River and Fort Yuma (Quechan) Tribes
these two river segments are being excluded from this designation (see
Relationship of Critical Habitat to American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities and the Endangered Species Act,
Relationship of Critical Habitat to National Wildlife Refuge Lands--
Exclusions Under Section 4(b)(2) of the Act, and Relationship of
Critical Habitat to Approved Habitat Conservation Plans--Exclusions
Under Section 4(b)(2) of the Act sections below).
Gila Recovery Unit
This unit includes the Gila River watershed, from its headwaters in
southwestern NM downstream to near the confluence with the Colorado
River (USFWS 2002: 65). In 2002, the 588 known flycatcher territories
(51 percent of the rangewide total) were distributed primarily on the
Gila and lower San Pedro Rivers (Sogge et al. 2003). A total of 505
territories were detected in 2003 within the segments proposed in this
Management Unit. Many sites are small (less than five territories), but
sections of the upper Gila River, lower San Pedro River (including its
confluence with the Gila River), and the Tonto Creek and Salt River
inflows within the high water mark of Roosevelt Lake support the
largest sites known within the subspecies' range. In 2001, private
lands hosted 50 percent of the territories, including one of the
largest known flycatcher populations in the Cliff-Gila Valley, NM
(USFWS 2002: 65). Approximately 50 percent of the territories were on
government-managed lands (USFWS 2002: 65). While 58 percent of
territories were in native-dominated habitats, flycatchers in this
Recovery Unit also make extensive use of exotic (77 territories) or
exotic-dominated (108 territories) habitats (primarily tamarisk).
Verde Management Unit
We are designating two separate segments of the upper Verde River
in Yavapai County, AZ. The first segment occurs in the Verde Valley and
extends for 23.1 km (14.4 mi) from near the Town of Cottonwood (2 miles
north of Highway 89A/260 intersection) downstream to the upstream end
of Yavapai-Apache Tribal lands. The second segment extends for 29.2 km
(18.1 mi) from the downstream boundary of Yavapai-Apache lands through
the town of Camp Verde to Beasley Flat on the Prescott National Forest.
A small (less than 1 km/0.6 mi) non-Tribal section of critical habitat
separates two segments of excluded Yavapai--Apache Tribal lands.
Two segments occur in the middle Verde River in Yavapai and
Maricopa Counties, AZ. A 37 km (23 mi) segment begins at the East
Verde/Verde River confluence in Yavapai County on the Tonto National
Forest and extends downstream to the conservation space boundary of
Horseshoe Lake. The second segment begins immediately below Horseshoe
Dam and extends for 6.5 km (4.1 mi) to the USGS gauging station in
Maricopa County.
Since 1993, southwestern willow flycatchers have been confirmed at
three breeding sites on the upper Verde River (Tuzigoot to Beasley
Flat), with additional sightings in 2005 of about seven unsolicited
singing flycatchers near the West Clear Creek confluence downstream to
Beasley Flat (E. Paxton, USGS, e-mail). In 1997, 10 territories were
the highest recorded on the upper Verde River segment. In 2003, 13
territories were detected at 2 sites within the Middle Verde River
section (Smith et al. 2004, and in 2004, 17 territories were detected
at Horseshoe Lake (Munzer et al. 2005).
The Verde River within the conservation space of Horseshoe
Reservoir was identified as having features essential to the
southwestern willow flycatcher. As a result of the partnership
developed with Salt River Project, and their continued effort toward
managing Horseshoe Lake to maintain flycatcher habitat for the long-
term, and formalizing management and appropriate mitigation in a HCP,
we are excluding the lake from this designation (see Relationship of
Critical Habitat to Partnerships and Conservation Plans/Easements on
Private Lands--Exclusions Under Section 4(b)(2) of the Act section
below).
Three separate areas in the Verde River within the boundary of
Yavapai-Apache Tribal lands were identified as having features
essential to the southwestern willow flycatcher. The Tribe developed,
completed, and is implementing actions described in their Southwestern
Willow Flycatcher Management Plan. As a result, the segments identified
on Yavapai-Apache Tribal Lands are being excluded from this designation
(see Relationship of Critical Habitat to American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act
section below).
We re-evaluated the lowest 8 km (5 mi) segment of the Verde River
located on the Tonto National Forest in Maricopa County, AZ, from
Needle Rock to near the Fort McDowell Indian Tribal Boundary. While
habitat here may be used in the future for breeding and migrating
flycatchers, the results of recent surveys (Smith et al. 2004 and
Munzer et al. 2005) did not detect flycatchers. We therefore concluded
that due to the disconnected nature of this segment to upstream
occupied areas, the short distance of the segment, and the lack of
detections during surveys that it is not essential and we have removed
from the designation. We encourage management of the Verde River below
Bartlett Dam for flycatchers due to appropriate features to develop and
maintain habitat.
[[Page 60924]]
Roosevelt Management Unit
We are designating a contiguous segment of lower Tonto Creek and
the Salt River immediately upstream from the conservation space of
Roosevelt Lake in Gila and Pinal Counties, AZ. A 31.7 km (19.7 mi)
segment of Tonto Creek begins at the confluence of Tonto Creek and Rye
Creek and extends to the high water mark of Roosevelt Lake in Gila
County, AZ. The 28.3 km (17.6 mi) segment of the Salt River extends
from the Cherry Creek confluence on the Tonto National Forest and
travels downstream to the high water mark of Roosevelt Lake in Gila
County, AZ. Outside of the conservation space of Roosevelt Lake, 10
territories were detected along Tonto Creek in 2004 (Munzer et al.
2005), and approximately 30 in 2005 (R. Ockenfels, AGFD, e-mail).
We re-evaluated the 34 km (21 mi) Pinto Creek segment and removed
it from the designation because it does not have the essential habitat
features identified for the flycatcher. The Arizona Game and Fish
Department, U.S. Bureau of Reclamation, Tonto National Forest, and the
Service identified Pinto Creek as habitat that could provide nesting
locations for displaced flycatchers following inundation of habitat at
Roosevelt Lake as a result of its proximity and habitat quality.
Surveys in 2004 (Munzer et al. 2005), and particularly in 2005 (A.
Smith, AGFD, e-mail) after flycatcher habitat was inundated at
Roosevelt Lake, found no migrant or breeding flycatchers. While habitat
may be used in the future for breeding and migrating flycatchers, the
results of these surveys determined that it is not reasonably certain
to be used by displaced Roosevelt flycatchers for nesting or migration,
and therefore, we conclude that this segment is not essential habitat
and we have removed it from the designation. We encourage continued
management and monitoring of this segment for use by flycatchers.
The riparian habitat within the conservation space of Roosevelt
Lake has features essential for the conservation of the southwestern
willow flycatcher. In 2004, a total of 209 territories were found at
Roosevelt Lake. The Roosevelt HCP covers the conservation space and as
a result of protections provided from this HCP and management by the
Tonto National Forest, this area is being excluded from this critical
habitat designation (see Relationship of Critical Habitat to Approved
Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of the Act
section below).
Middle Gila/San Pedro Management Unit
We are designating a segment of the middle and lower San Pedro
River, and a segment of the Gila River near the San Pedro/Gila River
confluence in Pinal, Pima, and Cochise Counties, AZ. The middle/lower
San Pedro River segment extends for 97.4 km (60.5 mi) to the Gila
River. The Gila River segment begins at Dripping Springs Wash and
extends for 72.4 km (45 mi) downstream past the San Pedro/Gila
confluence and the Towns of Winkleman and Kelvin to the Ashehurst
Hayden Diversion Dam near the Town of Cochran in Gila and Pinal
Counties, AZ. Flycatchers have been detected nesting along these
segments since 1993. In 2003, a high of 167 territories from 19 sites
(12 on San Pedro and 7 on the Gila) were detected on the stream
segments proposed for critical habitat within this Management Unit. In
2004, a total of 157 territories were detected from these sites (Munzer
et al. 2004). Dripping Springs Wash had one to two territories detected
in 2005 (R. Ockenfels, AGFD, e-mail). Degradation of habitat quality
due to an apparent reduction in river flow has dropped the number of
territories on the Gila River segment from 68 in 1999, 26 in 2003, to
14 in 2004. This location, along with populations at Roosevelt Lake,
AZ, and in the Cliff-Gila Valley, NM, have the most southwestern willow
flycatcher territories throughout its range.
Upper Gila Management Unit
We are designating four distinct southwestern willow flycatcher
critical habitat segments along the Upper Gila River from the Turkey
Creek/Gila River confluence on the Gila National Forest, NM, downstream
to San Carlos Apache Tribal Land, AZ. There are three full segments we
are designating as southwestern willow flycatcher critical habitat on
the upper Gila River in southwestern NM (Grant and Hildalgo Counties)
and immediately across the AZ State line into Greenlee County. We are
also designating four small parcels of land that are interspersed
within an excluded portion of the U-Bar Ranch in the Cliff/Gila Valley,
NM. A fourth full segment occurs in AZ through the Safford Valley in
Gila, Graham, and Pinal Counties.
The first full segment extends for 15.5 km (9.7 mi) from the Turkey
Creek/Gila River confluence on the Gila National Forest, NM, downstream
to the upstream boundary of the U-Bar Ranch in the Cliff/Gila Valley,
NM. We are excluding the U-Bar Ranch from this point downstream for
approximately 6 km (3.7 mi) to near the Highway 180 Bridge. Along this
approximate 6 km (3.7 mi) stretch of river are four small distinct
parcels of land not owned by the U-Bar Ranch which are being designated
as critical habitat. The second full segment extends from the
downstream boundary of the U-Bar Ranch exclusion near where Highway 180
crosses the Gila River for 21.1 km (13.1 mi) through the Cliff/Gila
Valley to the upstream entrance of the middle Gila Box on the Gila
National Forest, NM (the middle Gila Box is being removed, see below).
The third full segment begins at the gauging station above the Town of
Red Rock in Grant County, NM, at the downstream end of the middle Gila
Box and extends for 54.7 km (34 mi) into Hidalgo County, NM, and across
the NM/AZ State line through the town of Duncan in Greenlee County, AZ.
A fourth full segment on the Gila River in AZ in Gila, Graham, and
Pinal Counties extends for 69.2 km (43 mi) from the upper end of Earven
Flat in AZ, above the Town of Safford, through the Safford Valley to
the San Carlos Apache Tribal Boundary.
Southwestern willow flycatchers have been detected nesting along
these stream segments in the Upper Gila Management Unit since 1993. A
total of 16 breeding sites (7 in NM and 9 in AZ) are known in the Upper
Gila Management Unit. In 1999, a high of 262 territories at 8 sites
were detected. A single site, the U-Bar Ranch in the Cliff/Gila Valley,
had 209 territories. In 2003, 191 territories at 8 sites were detected
on the Gila River stream segments that we proposed as critical habitat
within this Management Unit. The U-Bar Ranch had 123 of these
territories in 2003, many nesting in the canopy of mature boxelder
trees along maintained irrigated ditches.
The U-Bar Ranch, located in the Cliff/Gila Valley in Grant County,
NM, was identified as having features essential to the conservation of
the southwestern willow flycatcher. Since the mid-1990s, the U-Bar
Ranch has been the focus of studies and research by the Forest
Service's Rocky Mountain Research and Experiment Station in
Albuquerque, NM. The number of territories detected has fluctuated
between approximately 110 and 210 territories. The U-Bar exists at
approximately 1372 m (4500 feet) above sea level. Dense stands of
boxelder trees are found along irrigation canals. As a result, nearly
75 percent of the flycatcher territories are found nesting in the
canopies of these boxelders, approximately 60 feet above the ground. No
where else throughout this subspecies range are southwestern
[[Page 60925]]
willow flycatchers found nesting at this elevation, in this type of
environment, in these types of trees, at this density. The combination
of anthropogenic influence, elevation, and boxelder canopy structure
has helped create a unique situation that is beneficial for nesting
flycatchers. The result of these southwestern willow flycatcher studies
has fostered the maintenance and management of one of the three largest
known breeding populations. As a result of the stewardship demonstrated
by the U-Bar Ranch and the commitment to future management of this
population and its habitat, we are excluding the U-Bar Ranch from
southwestern willow flycatcher critical habitat (see Relationship of
Critical Habitat to Partnerships and Conservation Plans/Easements on
Private Lands--Exclusions Under Section 4(b)(2) of the Act section
below).
We re-evaluated an 11.3 km (7 mi) segment of the Gila River
downstream of the Gila Bird Area in NM, located primarily on the Gila
National Forest in Grant County, known as the middle Gila Box. While
flycatchers could use this location for migration and/or dispersal
habitat, this section of river is bordered by canyon walls without the
floodplain characteristics to develop the vegetation for nesting
habitat. Therefore, we conclude that it is not essential habitat and we
have removed it from the designation.
The Gila River immediately above San Carlos Lake and within the
conservation space of the lake on San Carlos Apache Tribal Land was
identified as having features essential to the southwestern willow
flycatcher. The Tribe developed, completed, and is implementing actions
described in their Southwestern Willow Flycatcher Management Plan. As a
result, the segments identified as critical habitat on San Carlos
Tribal Lands are being excluded from this designation (see Relationship
of Critical Habitat to American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act section below).
Rio Grande Recovery Unit
This Recovery Unit encompasses the Rio Grande watershed from its
headwaters in southwestern CO downstream to the Pecos River confluence
in southwestern Texas, although no flycatcher breeding sites are
currently known along the Rio Grande in Texas. Also included in the
Recovery Unit is the Pecos River watershed in NM and Texas (where no
breeding sites are known) and one site on Coyote Creek, in the upper
Canadian River watershed. In 2003 (Durst et al. 2005), the Rio Grande
Recovery Unit had grown to 229 territories (20 percent of the rangewide
total). This is a large increase from the 128 territories detected in
2001 (USFWS 2002). Breeding sites along the Rio Grande in the San Luis
Valley, CO, and at the upper end of Elephant Butte Reservoir, NM,
accounted for the majority of this increase. In 2001, government-
managed lands accounted for 63 percent of the territories in this unit;
Tribal lands supported an additional 23 percent (USFWS 2002). This
Recovery Unit contains the San Luis Valley, Upper Rio Grande, Middle
Rio Grande, and Lower Rio Grande Management Units. Only river segments
in the Middle and Upper Rio Grande are being designated as critical
habitat.
San Luis Valley Management Unit
The upper Rio Grande in Costilla, Conejos, Alamosa, and Rio Grande
Counties, CO, and a segment of the Conejos River in Conejos, County,
CO, were identified as having features essential to the southwestern
willow flycatcher. In 2003, Durst et al. (2005) estimated a total of 73
flycatcher territories known from this Management Unit. The five
counties surrounding these streams in south-central Colorado along with
the Rio Grande Water Conservation District has a developed partnership
with the Service and other Federal agencies for conservation of
riparian areas on private lands in combination with Federal partners
including and extending beyond the river segments identified in our
proposed designation. Additionally, the Service is implementing
management on the Alamosa National Wildlife Refuge specific to
protecting riparian habitat values for the southwestern willow
flycatcher. As a result, the Rio Grande and Conejos River segments
identified as proposed critical habitat in the San Luis Valley
Management Unit are being excluded from this designation (see
Relationship of Critical Habitat to National Wildlife Refuge Lands--
Exclusions Under Section 4(b)(2) of the Act, and Relationship of
Critical Habitat to Partnerships and Conservation Plans/Easements on
Private Lands--Exclusions Under Section 4(b)(2) of the Act sections
below).
Upper Rio Grande Management Unit
We are designating single segments of the upper Rio Grande in Taos
and Rio Arriba Counties, NM; the Rio Grande del Rancho in Taos County,
NM; and Coyote Creek in Mora County, NM. The upper Rio Grande segment
extends for 45.9 km (28.5 mi) from the Taos Junction Bridge (State
Route 520) downstream to the upstream boundary of the San Juan Pueblo.
The 10.4 km (6.5 mi) of the Rio Grande del Rancho extends from Sarco
Canyon downstream to the Arroyo Miranda confluence. The 9.3 km (5.8 mi)
Coyote Creek segment travels from about 2 km/1 mi above Coyote Creek
State Park downstream to the second bridge on State Route 518, upstream
from Los Cocas.
Flycatchers have been detected nesting along these upper Rio Grande
River segments since 1993. Eleven breeding sites are known to exist on
these segments (seven on the Rio Grande, one on the Rio Grande del
Rancho, and three on Coyote Creek). On the Rio Grande in 2002, 16
territories were detected at a single site. On the Rio Grande del
Rancho in 2003, a high of six territories were detected at a single
site. On Coyote Creek in 2000, a high of 17 territories at 3 sites were
detected, however only 3 territories (from 2 sites) were detected in
2002, and no surveys occurred in 2003.
The Pueblos of San Juan, Santa Clara, and San Illdefonso were
identified as having features essential to the southwestern willow
flycatcher along the Rio Grande. These three Pueblos have established a
history of habitat management conducive to fostering the development
and maintenance of riparian vegetation for the southwestern willow
flycatcher, including restoration of native vegetation in order to
reduce catastrophic fire to the riparian area. All three Pueblos have
developed partnerships with the Service toward management of flycatcher
habitat, and through those partnerships will be finalizing riparian
habitat management plans that specifically address the habitat needs of
breeding, migrating, and dispersing flycatchers. As a result, the Rio
Grande on the Pueblos of San Juan, Santa Clara, and San Illdefonso is
being excluded from this designation (see Relationship of Critical
Habitat to American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act section below).
Four extremely small sections of riparian vegetation exist between
and adjacent to the San Juan, Santa Clara, and San Illdefonso Pueblos
that we have determined are not essential and are removing from this
designation. A small piece of non-Pueblo habitat less than 1 km (0.6
mi) long exists between the San Juan and Santa Clara Pueblos.
Additionally, a piece of non-Pueblo habitat, less than 0.5 km/0.3 mi
long exists to west, adjacent to the Santa Clara Pueblo. Another two
small pieces (each less than 0.5 km/0.3 mi long) exist between the San
Illdefonso and Santa Clara Pueblos. As a result of these segments being
located adjacent to
[[Page 60926]]
appropriate management by the Pueblos for the southwestern willow
flycatcher, and because of their disjunct location and small size, we
have determined that these four pieces are not essential habitat and
are being removed from this designation.
Middle Rio Grande Management Unit
We are proposing three separate segments of the middle Rio Grande
in Valencia and Soccoro Counties, NM. These segments are separated by
the Sevilleta and Bosque del Apache NWRs that are being excluded from
this designation as explained below. The most northern Rio Grande
segment extends from the southern boundary of the Isleta Pueblo for
71.1 km (44.2 mi) to the northern boundary of the Sevilleta NWR. The
middle Rio Grande segment extends for 44 km (27.3 mi) from the southern
boundary of the Sevilleta NWR to the northern boundary of the Bosque
del Apache NWR. The most southern Rio Grande segment extends for 20.1
km (12.5 mi) from the southern boundary of the Bosque del Apache NWR to
the overhead powerline near Milligan Gulch at the northern end of
Elephant Butte State Park.
Southwestern willow flycatcher territories have been detected on
the middle Rio Grande since 1993. In 2002, 98 territories at 7 sites
were detected. In 2003, a high of 107 territories at 6 of 7 different
breeding sites were detected. A total of 85 territories were detected
at the San Marcial site in 2003.
Habitat with features essential for the southwestern willow
flycatcher identified along the Middle Rio Grande within the Rio Grande
Valley State Park (City of Albuquerque) is being conserved through
implementation of their Bosque Action Plan. This plan describes
preservation and conservation of vegetation and wildlife communities,
including the flycatcher and the habitat upon which it depends. As a
result of this management, the Rio Grande Valley State Park is being
excluded from this critical habitat designation (see Relationship of
Critical Habitat to Partnerships and Conservation Plans/Easements on
Private Lands--Exclusions Under Section 4(b)(2) of the Act section
below).
The Rio Grande on Pueblo of Isleta land immediately downstream of
Rio Grande Valley State Park (City of Albuquerque) was identified as
having features essential to the southwestern willow flycatcher. The
Pueblo developed, completed, and is implementing actions described in
their Southwestern Willow Flycatcher Management Plan. As a result, the
segment identified on Pueblo of Isleta land is being excluded from this
designation (see Relationship of Critical Habitat to American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act section below).
Habitat with features essential for the southwestern willow
flycatcher identified along the Middle Rio Grande within the Sevilleta
and Bosque del Apache NWRs is being conserved by the Service. Goals and
objectives of both refuges are the protection and restoration of
riparian habitat for the southwestern willow flycatcher. A total of 11
territories as of 2003 were known from both NWRs (USGS 2004). As a
result of the Service's management of the refuge for wildlife and
riparian habitat for the flycatcher, the Rio Grande within the
Sevilleta and Bosque del Apache NWRs boundaries is being excluded from
this designation (see Relationship of Critical Habitat to National
Wildlife Refuge Lands--Exclusions Under Section 4(b)(2) of the Act
section below).
Exclusions of Military Lands Under Section 4(a)(3)
Section 318 of fiscal year 2004 the National Defense Authorization
Act (Public Law No. 108-136) amended the Endangered Species Act to
address the relationship of Integrated Natural Resources Management
Plans (INRMPs) to critical habitat by adding a new section 4(a)(3).
This provision prohibits the Service from designating as critical
habitat any lands or other geographical areas owned or controlled by
the Department of Defense, or designated for its use, that are subject
to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C.
670a), if the Secretary of the Interior determines in writing that such
plan provides a benefit to the species for which critical habitat is
proposed for designation.
The Sikes Act required each military installation that includes
land and water suitable for the conservation and management of natural
resources to complete an INRMP by November 17, 2001. An INRMP
integrates implementation of the military mission of the installation
with stewardship of the natural resources found on military lands. Each
INRMP includes an assessment of the ecological needs on the
installation, including the need to provide for the conservation of
listed species; a statement of goals and priorities; a detailed
description of management actions to be implemented to provide for the
ecological needs of listed species; and a monitoring and adaptive
management plan. We consult with the military on the development and
implementation of INRMPs for installations with listed species.
An INRMP integrates implementation of the military mission of the
installation with stewardship of the natural resources found there.
Each INRMP includes an assessment of the ecological needs on the
military installation, including conservation provisions for listed
species; a statement of goals and priorities; a detailed description of
management actions to be implemented to provide for these ecological
needs; and a monitoring and adaptive management plan.
We identified in the proposed critical habitat rule for the
southwestern willow flycatcher possible exclusion of Camp Pendleton and
Fallbrook Naval Weapons Station from critical habitat under section
4(b)(2)of the Act. After re-evaluation, we have exempted lands owned by
Camp Pendleton and Fallbrook Naval Weapons Station from the final
critical habitat designation pursuant to section 4(a)(3) of the Act
based on legally operative INRMPs that provide a benefit to the
southwestern willow flycatcher. Detailed discussions of the exemptions
and exclusion of military lands are discussed by installation below.
Marine Corps Base, Camp Pendleton (MCBCP)
Areas or habitat containing features essential to the conservation
of the southwestern willow flycatcher within the boundaries of MCBCP
occur along portions of Cristianitos (6 km/4 mi), San Mateo (5 km/3
mi), San Onofre (6 km/4 mi), Los Flores (8 km/5 mi), Las Pulgas (2 km/1
mi), and DeLuz Creeks (10 km/6 mi), and the Santa Margarita River (45
km/28 mi); however, as discussed below, these areas are being exempted
from critical habitat for the flycatcher. The exemption includes lands
leased to the California Department of Parks and Recreation.
Southwestern willow flycatcher populations within these watersheds on
Camp Pendleton contain features essential to the conservation of the
species because these watersheds retain relatively natural hydrological
processes and functions. The Santa Margarita watershed is one of the
least altered major watersheds occupied by the species throughout its
range.
Camp Pendleton's INRMP was completed and signed by the Commanding
General on November 9, 2001. The INRMP provides conservation measures
that will directly and indirectly benefit the southwestern willow
flycatcher and other listed species found on the Base. According to
Camp Pendleton's May 26, 2005,
[[Page 60927]]
comment letter, the Base annually reviews and updates its INRMP with
cooperation of the Service and California Department of Fish and Game
to verify that: (1) The Base has sufficient professionally trained
natural resources management staff available to implement the INRMP;
(2) there have not been significant changes to the installation's
mission requirements or its natural resources; (3) planned actions are
implemented in an adaptive manner, adjusting management priorities and
methodologies to accommodate changing natural resource and mission
requirements; and (4) the required Federal, State, and installation
coordination has occurred.
Actions undertaken by Camp Pendleton that have directly or
indirectly benefited the flycatcher include: (1) Removal of non-native
plant and animal species from riparian habitats, including Arunda
donax, a major invasive plant species, (2) control of brown-headed
cowbirds (a nest parasite), for over the past ten years, (3)
programmatic impact avoidance and minimization measures through the
Riparian Biological Opinion (see below) and, (4) flycatcher surveys and
monitoring. In addition to the above benefits, Camp Pendleton has
hosted or funded the following research efforts in partnership with
USGS-BRD: (1) Southwestern willow flycatcher demographic studies using
banded flycatchers; (2) examination of vegetation characteristics at
flycatcher nest sites; (3) riparian habitat use by birds (including
southwestern willow flycatchers) with an emphasis on habitats dominated
by exotic vegetation; (4) response of southwestern willow flycatchers
to removal of exotic vegetation; (5) use of exotic riparian vegetation
as nesting substrate; and, (6) use of non-listed birds as indicators of
suitable southwestern willow flycatcher habitat.
Camp Pendleton manages listed species, including the southwestern
willow flycatcher, in its riparian areas, such as Santa Margarita
River, within the framework of programmatic management plans, approved
in a biological opinion issued by the Service on October 30, 1995
(USFWS 1995a). The biological opinion discusses ongoing and planned
training activities, infrastructure maintenance activities, several
construction projects, and a Riparian and Estuarine Ecosystem
Conservation Plan and assesses potential impacts to six federally-
listed species, including the southwestern willow flycatcher. The
Conservation Plan is designed to maintain and enhance the biological
diversity of the riparian ecosystem on Camp Pendleton and includes
promoting the growth of sensitive species, including the southwestern
willow flycatcher. Actions to assist in promoting conservation of the
southwestern willow flycatcher on MCBCP include maintaining
connectivity of riparian habitats; eradicating exotic plant communities
to further establishment of successional stages of riparian scrub and
riparian woodland habitat; and continuing to implement brown-headed
cowbird management. The terms and conditions of the biological opinion
for the Conservation Plan form the basis for portions of MCBCP's INRMP
that was completed in 2001. Therefore, since the Conservation Plan
provides a benefit to the species as outlined above, and since the
INRMP is based on this plan, we have determined that the INRMP does
provide a benefit for the southwestern willow flycatcher.
Camp Pendleton has demonstrated ongoing funding of their INRMP and
management of endangered and threatened species. According to their May
26, 2005, comment letter, in fiscal year 2003, Camp Pendleton spent
approximately $5 million to fund INRMP-driven projects and to assure
its implementation. During fiscal year 2004, they applied over $3.5
million toward projects, programs, and activities that provide direct
and indirect benefit to the management and conservation of Base natural
resources. Moreover, in partnership with the Service, Camp Pendleton is
funding two Service biologists to assist in implementing their Sikes
Act program and buffer lands acquisition initiative.
Based on Camp Pendleton's past history for listed species and their
Sikes Act program, we believe that there is a high degree of certainty
that the conservation efforts of their INRMP will be effective. Service
biologists work closely with Camp Pendleton on a variety of endangered
and threatened species issues, including the southwestern willow
flycatcher. The management programs and Base directives to avoid and
minimize impacts to the species are consistent with current and ongoing
section 7 consultations with Camp Pendleton. Therefore, we find that
the INRMP for Camp Pendleton provides a benefit for the southwestern
willow flycatcher and are exempting from critical habitat all lands on
Camp Pendleton, including lands leased to the State, pursuant to
section 4(a)(3) of the Act.
Fallbrook Naval Weapons Station
Fallbrook Naval Weapons Station (NWS), located in northern San
Diego County, is approximately 8,850 ac (3,581 ha). Fallbrook Naval
Weapons Station contains high quality habitat for the southwestern
willow flycatcher within the Santa Margarita watershed.
In 1996, Fallbrook NWS completed an INRMP to address conservation
and management recommendations within the scope of the installation's
military mission. The INRMP provides conservation measures that will
directly and indirectly benefit the southwestern willow flycatcher and
other listed species found on the Naval Station. The 1996 INRMP was
prepared with input from the Service and incorporates conservation
measures outlined in several previously completed consultations between
the Service and Fallbrook NWS. Fallbrook NWS is currently working with
the Service to revise and update their INRMP.
Additionally, Fallbrook NWS has completed a formal section 7
consultation with the Service to revise their Fire Management Plan
(FMP) to provide more effective fuels management and wildfire control,
while minimizing impacts to listed species on the installation,
including the southwestern willow flycatcher. This plan is a primary
component of the installation's effort to develop and implement an
updated INRMP. The revised FMP incorporates fuels management and fire
suppression activities with habitat management needs of the
southwestern willow flycatcher and other listed species to promote
conservation and recovery of these species on Fallbrook NWS. This has
resulted in minimal affects to surrounding habitat, including portions
of the Santa Margarita River. Based on information provided in the FMP,
breeding and/or territorial flycatchers have not been detected on
Fallbrook NWS since the listing of the flycatcher under the Act, with
all recent sightings determined to be transient birds. Measures to
offset, avoid or minimize affects to the least Bell's vireo--another
riparian dependent species--as described in our biological opinion on
the FMP are also adequate to avoid effects on transient southwestern
willow flycatchers. Additionally, Fallbrook NWS has agreed to provide
information to us regarding any future sightings of southwestern willow
flycatchers and will conduct follow-up surveys to determine their
breeding status. If breeding or territorial flycatchers are detected on
the Fallbrook NWS, the U.S. Navy and we will cooperate to determine
whether additional measures to avoid and minimize the effects of fire
management activities on the
[[Page 60928]]
southwestern willow flycatcher are necessary.
The Fallbrook NWS has also provided private researchers and the
general public with opportunities for scientific and educational
pursuits on the installation while controlling access to sensitive
habitat areas to avoid causing inadvertent harm to species, including
the southwestern willow flycatcher.
Based on Fallbrook NWS's Sikes Act program, we believe there is a
high degree of certainty that the conservation efforts of their INRMP
will be effective. Service biologists work closely with Fallbrook Naval
Weapons Station on a variety of endangered and threatened species
issues, including the southwestern willow flycatcher. The management
programs and Station's directives to avoid and minimize impacts to the
species are consistent with current and ongoing section 7 consultations
with Fallbrook NWS. Therefore, we find that the INRMP for Fallbrook NWS
provides a benefit for the southwestern willow flycatcher and are
exempting from critical habitat all lands on Fallbrook NWS pursuant to
section 4(a)(3) of the Act.
Exclusions Under 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,
impact 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 it is determined 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 critical habitat based on economic impacts,
impacts on national security, or other relevant impacts such as
preservation of conservation partnerships, if we determine 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 designation we use the provisions outlined
in section 4(b)(2) of the Act to evaluate those specific areas on which
are found physical and biological features essential to the
conservation of the species to determine which areas to propose and
subsequently finalize (i.e., designate) as critical habitat. On the
basis of our evaluation, we have determined that the benefits of
excluding certain lands from the designation of critical habitat for
the southwestern willow flycatcher outweighs the benefits of their
inclusion, and have subsequently excluded those lands from this
designation pursuant to section 4(b)(2) of the Act as discussed below.
Areas excluded pursuant to section 4(b)(2) included areas with: (1)
Legally operative HCPs that cover the subspecies and provide assurances
that the conservation measures for the subspecies will be implemented
and effective; (2) draft HCPs that cover the subspecies, have undergone
public review and comment, and provide assurances that the conservation
measures for the subspecies will be implemented and effective (i.e.,
pending HCPs); (4) Tribal conservation plans/programs that cover the
subspecies and provide assurances that the conservation measures for
the subspecies will be implemented and effective; (5) State and Federal
conservation plans/programs that provide assurances that the
conservation measures for the subspecies will be implemented and
effective; (6) National Wildlife Refuges with Comprehensive
Conservation Plans (CCPs) or programs that provide assurances that the
conservation measures for the subspecies will be implemented and
effective; and (7) Partnerships, conservation plans/easements, or other
type of formalized relationship/agreement where a conservation plans/
program provide assurances that the conservation measures for the
subspecies will be implemented and effective. The relationship of
critical habitat to these types of areas is discussed in detail in the
following paragraphs.
Within the areas containing features essential to the conservation
of the southwestern willow flycatcher across six states there are
private lands with legally operative HCPs, State and Federal Wildlife
Areas with conservation plans/programs, Tribal lands, National Wildlife
Refuges, and other private lands with management plans, partnerships,
and/or programs in place for the southwestern willow flycatcher.
We have considered, but are excluding from critical habitat for the
southwestern willow flycatcher pursuant to section 4(b)(2) of the Act,
lands containing essential features in the following areas. The
following lands are covered by the completed HCPs: Western Riverside
Multiple Species Habitat Conservation Plan, San Diego County Multiple
Species Conservation Plan, City of Carlsbad Habitat Management Program,
Lower Colorado River Multiple Species Conservation Plan, Roosevelt
Habitat Conservation Plan (only Roosevelt Lake). The following Tribes
and Pueblos have completed and are implementing Southwestern Willow
Flycatcher Management Plans: Hualapai, Chemehuevi, Colorado River, Fort
Mojave, Quechan (Fort Yuma), Yavapai-Apache, San Carlos, Isleta Pueblo,
La Jolla, and Rincon. The following Northern New Mexico Pueblos have
established southwestern willow flycatcher management partnerships with
the Service: San Illdefonso, Santa Clara, and San Juan. The following
NWRs have completed CCPs or have developed management programs and
implementing management strategies specific to southwestern willow
flycatcher habitat: Pahranagat, Havasu, Cibola, Imperial, Bill
Williams, Alamosa, Bosque del Apache, and Sevilleta. The following
State and Federal Wildlife Areas have completed management plans/
programs that are being implemented for the protection of southwestern
willow flycatcher habitat: Overton and Key Pittman State Wildlife
Areas, NV; Alamo State Wildlife Area, AZ; South Fork Kern River
Wildlife Area, CA, Sprague Ranch, Kern River, CA. Other lands excluded
under section 4(b)(2) of the Act due to southwestern willow flycatcher/
riparian habitat conservation plans/programs/easements and/or
partnerships include: Los Angeles Department of Water and Power, Owens
River, CA; San Luis Valley Partnership, Rio Grande and Conejos Rivers,
CO; Hafenfeld Ranch, Kern River, CA; Salt River Project--Horseshoe
Lake, Verde River, AZ, the City of Albuquerque/Rio Grande Valley State
Park, Rio Grande, NM, and U-Bar Ranch, Gila River, NM. See below for a
detailed discussion of our exclusion of these lands under section
4(b)(2) of the Act.
General Principles of Section 7 Consultations Used in the 4(b)(2)
Balancing Process
The most direct, and potentially largest regulatory benefit of
critical habitat is that federally authorized, funded, or carried out
activities require consultation pursuant to section 7 of the Act to
ensure that they are not likely to destroy or adversely modify critical
habitat. There are two limitations to this regulatory effect. First, it
only applies where there is a Federal nexus--if there is no Federal
nexus, designation itself does not restrict actions that destroy or
adversely modify critical habitat.
[[Page 60929]]
Second, it only limits destruction or adverse modification. By its
nature, the prohibition on adverse modification is designed to ensure
those areas that contain the physical and biological features essential
to the conservation of the species or unoccupied areas that are
essential to the conservation are not eroded. Critical habitat
designation alone, however, does not require specific steps toward
recovery.
Once consultation under section 7 of the Act is triggered, the
process may conclude informally when the Service concurs in writing
that the proposed Federal action is not likely to adversely affect the
listed species or its critical habitat. However, if the Service
determines through informal consultation that adverse impacts are
likely to occur, then formal consultation should be initiated. Formal
consultation concludes with a biological opinion issued by the Service
on whether the proposed Federal action is likely to jeopardize the
continued existence of a listed species or result in destruction or
adverse modification of critical habitat, with separate analyses being
made under both the jeopardy and the adverse modification standards.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to primary constituent elements, but it would not contain any mandatory
reasonable and prudent measures or terms and conditions. Mandatory
reasonable and prudent alternatives to the proposed Federal action
would only be issued when the biological opinion results in a jeopardy
or adverse modification conclusion.
We also note that for 30 years prior to the Ninth Circuit Court's
decision in Gifford Pinchot, the Service equated the jeopardy standard
with the standard for destruction or adverse modification of critical
habitat. The Court ruled that the Service could no longer equate the
two standards and that adverse modification evaluations require
consideration of impacts on the recovery of species. Thus, under the
Gifford Pinchot decision, critical habitat designations may provide
greater benefits to the recovery of a species.
The information provided in this section applies to all the
discussions below that discuss the benefits of inclusion and exclusion
of critical habitat in that it provides the framework for the
consultation process.
Educational Benefits of Critical Habitat
The benefit of including lands in critical habitat is that the
designation of critical habitat serves to educate landowners, State and
local governments, and the public regarding the potential conservation
value of an area. This helps focus and contribute to conservation
efforts by other parties by clearly delineating areas of high
conservation value for the southwestern willow flycatcher. In general
the educational benefit of a critical habitat designation always
exists, although in some cases it may be redundant with other
educational effects. For example, HCPs have significant public input
and may largely duplicate the educational benefit of a critical habitat
designation. This benefit is closely related to a second, more indirect
benefit; in that designation of critical habitat would inform State
agencies and local governments about areas that could be conserved
under State laws or local ordinances.
However, we believe that there would be little additional
informational benefit gained from the designation of critical habitat
for the exclusions we are making in this rule because these areas were
included in the proposed rule as having features essential to the
conservation of the flycatcher. Consequently, we believe that the
informational benefits are already provided even though these areas are
not designated as critical habitat. Additionally, the purpose normally
served by the designation of informing State agencies and local
governments about areas which would benefit from protection and
enhancement of essential features and habitat for the southwestern
willow flycatcher is already well established among State and local
governments, and Federal agencies in those areas which we are excluding
in this rule on the basis of HCPs, and other existing habitat
management protections.
As noted elsewhere in this rule, the southwestern willow flycatcher
is migratory and thus may receive some additional benefit from a
critical habitat designation in that it is not present year-round in
the U.S. However, we believe that based on the educational benefits
already being provided as to the importance of these areas, as
described above, and the fact that effects to flycatchers as a result
of impacts to habitat are consulted upon regardless of what time of
year impacts may occur, minimal if any additional benefits would
result.
The information provided in this section applies to all the
discussions below that discuss the benefits of inclusion and exclusion
of critical habitat.
Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of the Act
Another process for long term habitat protection is available under
section 10(a)(1)(B) of the Act, which authorizes us to issue permits
allowing the take of listed wildlife species incidental to otherwise
lawful activities to non-Federal entities such as private landowners
and State and local governments. The incidental take permit can not be
issued until the permittee establishes habitat protection pursuant to
the terms of an HCP. The HCP must identify conservation measures that
the permittee agrees to implement for the species to minimize and
mitigate the impacts of the permitted incidental take, and must have
funding for these conservation measures assured before the take permit
is issued. Frequently, as is the case with the HCPs for the
southwestern willow flycatcher discussed below, the habitat
protections, inclusive of protections for essential features, are long
term management actions which assist in providing significant
conservation benefit to the essential features, the habitat mosaic, and
the subpecies.
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
southwestern willow flycatcher involve several complex HCPs that
address multiple species, cover large areas, and are important to 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 large-scale 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 are designed to proactively implement conservation
actions to address future projects that are anticipated to occur within
the planning area of the HCP. However, given the broad scope of these
regional HCPs, not all projects envisioned to potentially occur may
actually take place. The State of California also has a Natural
Communities Conservation Program (NCCP) process that is very similar to
the Federal HCP process and is often completed in conjunction with the
HCP
[[Page 60930]]
process. We recognize that many of the projects with HCPs also have
state issued NCCPs.
In the case of approved regional HCPs and accompanying Implementing
Agreements (IAs) (e.g., those sponsored by cities, counties, or other
local jurisdictions) that provide for incidental take coverage for the
southwestern willow flycatcher, a primary goal of these regional plans
is to provide for the protection and management of features essential
for the species' conservation and thus habitat necessary for
conservation, while directing development to other areas. In the case
of approved regional HCPs and accompanying Implementing Agreements
(IAs) (e.g., those sponsored by cities, counties, or other local
jurisdictions) that provide for incidental take coverage for the
southwestern willow flycatcher, a primary goal of these regional plans
is to provide for the protection and management of habitat essential
for the species' conservation, while directing development to other
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 southwestern willow flycatcher. The
process also enables us to conduct detailed evaluations of the
importance of such lands to the long-term survival of the species in
the context of constructing a system of interlinked habitat blocks that
provide for its biological needs.
We believe the conservation achieved through implementing HCPs is
typically greater than would be achieved through multiple site-by-site,
project-by-project, section 7 consultations involving consideration of
critical habitat. HCPs cause permittees to consider, evaluate, and
commit resources to implement long-term management to particular
habitat for at least one and possibly other listed or sensitive
species. HCPs undergo analysis under NEPA, involve public
participation, and go through intra-Service section 7 consultation for
issuance of the permit. In contrast, section 7 consultations for
critical habitat only consider listed species in the project area
evaluated and Federal agencies are only committed to prevent adverse
modification to critical habitat caused by the particular project and
are not committed to provide conservation or long-term benefits to
areas not affected by the proposed project. Thus, any management plan
or HCP which considers enhancement or recovery as the management
standard will always provide as much or more benefit than a
consultation for critical habitat designation conducted under the
standards required by the Ninth Circuit in the Gifford Pinchot
decision.
Below we provide our specific 4(b)(2) discussions for each of the
HCPs that we are excluding from this final designation.
Santa Ana Management Unit, CA
Western Riverside County Multiple Species Habitat Conservation Plan
(MSHCP)
The Western Riverside Multiple Species Habitat Conservation Plan
(MSHCP) was finalized and approved on June 22, 2004. 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, and Riverside County Waste Department; the California
Department of Parks and Recreation; and the California Department of
Transportation. The Western Riverside MSHCP is a subregional plan under
the State's NCCP and was developed in cooperation with the California
Department of Fish and Game. Within the 510,000 ha (1.26 million ac)
planning area of the MSHCP, approximately 62,000 ha (153,000 ac) of
diverse habitats are being conserved. The conservation of 62,000 ha
(153,000 ac) complements other existing natural and open space areas
that are already conserved through other means (e.g., State parks,
USFS, and County park lands). An important objective of the MSHCP is to
implement measures, including monitoring and management, necessary to
conserve important habitat for the southwestern willow flycatcher that
occurs within the plan's boundaries.
The MSHCP Conservation Area will include at least 4,282 ha (10,580
ac) of flycatcher habitat (breeding and migration habitat) including
six core areas of high quality habitat and interconnecting linkages,
including the segments of the Santa Ana River, San Timoteo Canyon/
Yucaipa Creek, and Temecula Creek (including Vail Lake). The plan aims
to conserve 100 percent of breeding habitat for the southwestern willow
flycatcher, including buffer areas 100 m (328 ft) adjacent to breeding
areas. In addition, the MSHCP requires compliance with a Riparian/
Riverine Areas and Vernal Pool policy that contains provisions
requiring 100 percent avoidance and long-term management and protection
of breeding habitat not included in the conservation areas, unless a
Biologically Equivalent or Superior Preservation Determination can
demonstrate that a proposed alternative will provide equal or greater
conservation benefits than avoidance. We completed an internal
consultation on the effects of the plan on the southwestern willow
flycatcher and its essential habitat that is found within the plan
boundaries, and determined that implementation of the plan provides for
the conservation of the species because it provides for the
conservation of breeding and migration flycatcher habitat, the
conservation of dispersal habitat and adjacent upland areas, surveys
for undiscovered populations, and the maintenance and potential
restoration of suitable habitat areas within the conservation area.
We are excluding portions of the Santa Ana Watershed, including the
Santa Ana River, San Timeteo Canyon/Yucaipa Creek, and Temecula Creek
(including Vail Lake) containing features essential to the conservation
of the flycatcher from the final designation of critical habitat for
the southwestern willow flycatcher pursuant to section 4(b)(2) of the
Act because it is within the planning area boundary for the Western
Riverside MSHCP.
(1) Benefits of Inclusion
We believe that there is minimal benefit from designating critical
habitat for the southwestern willow flycatcher within the MSHCP
because, as explained above, these lands are already managed for the
conservation of species covered by the MSHCP, including this
subspecies.
As discussed above in the ``General Principles of Section 7
Consultations Used in the 4(b)(2) Balancing Process'' section, a
benefit of including an area within a critical habitat designation is
the protection provided by section 7(a)(2) of the Act that directs
Federal agencies to ensure that their actions do not result in the
destruction or adverse modification of critical habitat. We completed a
section 7 consultation on the issuance of the section 10(a)(1)(B)
permit for the MSHCP on June 22, 2004, and concluded that the
southwestern willow flycatcher was adequately conserved and the
issuance of the permit would not jeopardize the continued existence of
this subspecies.
The areas excluded as critical habitat are currently occupied by
the species. If these areas were designated as critical habitat, any
actions with a Federal nexus which might adversely affect the critical
habitat would require a consultation with us, as explained above.
However, inasmuch as this area is currently occupied by the species,
consultation for Federal activities which might adversely impact the
species or
[[Page 60931]]
would result in take would be required even without the critical
habitat designation. The requirement to conduct such consultation would
occur regardless of whether the authorization for incidental take
occurs under either section 7 or section 10 of the Act.
The inclusion of these areas of non-Federal land as critical
habitat would provide some additional Federal regulatory benefits for
the species consistent with the conservation standard based on the
Ninth Circuit Court's decision in Gifford Pinchot. A benefit of
inclusion would be the requirement of a Federal agency to ensure that
their actions on these non-Federal lands do not likely result in the
destruction or adverse modification of critical habitat. This
additional analysis to determine destruction or adverse modification of
critical habitat is likely to be small because the lands are not under
Federal ownership and any Federal agency proposing a Federal action on
these areas of non-Federal lands would likely consider the conservation
value of these lands as identified in the Western Riverside County
MSHCP and take the necessary steps to avoid jeopardy or the destruction
or adverse modification of critical habitat.
We believe that designating any non-Federal lands within existing
public/quasi public lands, proposed conceptual reserve design lands,
and lands targeted for conservation within the Western Riverside County
MSCHP Plan Area, would provide little additional educational and
Federal regulatory benefits for the species. The additional educational
benefits that might arise from critical habitat designation have been
largely accomplished through the public review and comment of the
environmental impact documents which accompanied the development of the
Western Riverside County MSHCP and the recognition by some of the
landowners of the presence of the endangered southwestern willow
flycatcher and the value of their lands for the conservation and
recovery of the species (e.g., County of Riverside Regional Parks and
Open Space District). In addition, as discussed in the Educational
Benefits of Critical Habitat section above, we believe the conservation
achieved through implementing HCPs is typically greater than would be
achieved through multiple site-by-site, project-by-project, section 7
consultations involving consideration of critical habitat.
We believe that there would be little additional informational
benefit gained from including the MSHCP within the designation because
this area was included in the proposed rule as having lands containing
features essential to the flycatcher. Consequently, we believe that the
informational benefits are already provided even though this area is
not designated as critical habitat. Additionally, the purpose of the
MSHCP to provide protection and enhancement of habitat for the
southwestern willow flycatcher is already well established among State
and local governments, and Federal agencies.
(2) Benefits of Exclusion
As mentioned above, the Western Riverside MSHCP provides for the
conservation of breeding and migration flycatcher habitat, the
conservation of dispersal habitat and adjacent upland areas, surveys
for undiscovered populations, and the maintenance and potential
restoration of suitable habitat areas within the conservation area. The
Western Riverside MSHCP therefore provides for protection of the PCEs,
and addresses special management needs such as surveys in suitable
habitat and management of essential features and habitat. Designation
of critical habitat would therefore be redundant on these lands, and
would not provide additional protections.
The benefits of excluding lands within HCPs from critical habitat
designation include relieving landowners, communities, and counties of
any 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 benefits if participants abandon the voluntary
HCP process because it may result in requiring additional regulations
compared to other parties who have not voluntarily participated in
species conservation. Designation of critical habitat within the
boundaries of approved HCPs could 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,
particularly large, regional HCPs that involve numerous participants
and address landscape-level conservation of species and habitats. By
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. The
jeopardy analysis is similar to the analysis of adverse modification to
critical habitat. 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 due to the presence of the species. HCP and
NCCP/HCPs typically provide for greater conservation benefits to a
covered species than section 7 consultations because HCPs and NCCP/HCPs
assure the long-term protection and management of a covered species and
its habitat. In addition, funding for such management is assured
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 that,
in contrast to HCPs, often do not commit the project proponent to long-
term special management or protections. Thus, a consultation typically
does not accord the lands it covers the extensive benefits a 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
In summary, we believe that the benefits of excluding the Western
Riverside MSHCP from the designation of critical habitat for the
southwestern willow flycatcher outweigh the benefits
[[Page 60932]]
of including this area in critical habitat. We find that including the
Western Riverside MSHCP would result in very minimal, if any,
additional benefits to the southwestern willow flycatcher, as explained
above.
We also find that the exclusion of these lands will not lead to the
extinction of the subspecies, nor hinder its recovery because the
management emphasis of the Western Riverside MSHCP is to protect and
enhance habitat for the southwestern willow flycatcher.
We believe that exclusion of these lands from critical habitat will
not result in extinction of the southwestern willow flycatcher since
these lands will be conserved and managed for the benefit of this
species pursuant to the Western Riverside County MSHCP. The Western
Riverside MSHCP includes specific conservation objectives, survey
requirements, avoidance and minimization measures, and management for
the southwestern willow flycatcher that exceed any conservation value
provided as a result of a critical habitat designation.
The jeopardy standard of section 7 and routine implementation of
habitat conservation through the section 7 process also provide
assurances that the species will not go extinct. In addition, the
species is protected from take under section 9 of the Act. The
exclusion leaves these protections unchanged from those that would
exist if the excluded areas were designated as critical habitat.
Critical habitat is being designated for the southwestern willow
flycatcher in other areas that will be accorded the protection from
adverse modification by Federal actions using the conservation standard
based on the Ninth Circuit Court's decision in Gifford Pinchot.
Additionally, the species occurs on lands protected and managed either
explicitly for the species, or indirectly through more general
objectives to protect natural values, this factor acting in concert
with the other protections provided under the Act for these lands
absent designation of critical habitat on them, and acting in concert
with protections afforded each species by the remaining critical
habitat designation for the species, lead us to find that exclusion of
these lands within the Western Riverside County MSHCP will not result
in extinction of the southwestern willow flycatcher.
San Diego Management Unit
San Diego Multiple Species Conservation Program (MSCP)
Below we first provide some general background information on the
San Diego Multiple Species Conservation Plan/Habitat Conservation Plan
(MSCP/HCP), followed by an analysis pursuant to section 4(b)(2) of the
Act of the benefits of including San Diego MSCP/HCP land within the
critical habitat designation, an analysis of the benefits of excluding
this area, and an analysis of why we believe the benefits of exclusion
are greater than those of inclusion.
In southwestern San Diego County, the MSCP effort encompasses more
than 236,000 ha (582,000 ac) and involves the participation of the
County of San Diego and 11 cities, including the City of San Diego.
This regional HCP is also a regional subarea plan under the NCCP
program and has been developed in cooperation with California
Department of Fish and Game. The MSCP provides for the establishment of
approximately 69,573 ha (171,000 ac) of preserve areas to provide
conservation benefits for 85 federally listed and sensitive species
over the life of the permit (50 years), including the southwestern
willow flycatcher. We have determined that portions of lands within the
boundaries of the San Diego Multiple MSCP contain features essential to
the conservation of the southwestern willow flycatcher, including areas
along portions of the San Dieguito (including Lake Hodges), Santa
Ysabel, and San Diego Rivers. These particular areas lie within the
boundaries of approved subarea plans.
Conservation measures specific to the southwestern willow
flycatcher within the San Diego MSCP/HCP include the preservation and
management of 3,845 ha (9,500 ac) (81 percent) of the riparian habitat
within the planning area, as well as eight of the nine known breeding
locations at the time of the plan's development. Surveys are required
for projects potentially affecting this species, and breeding habitat
will be identified and avoided. Specific management directives include
measures to provide appropriate flycatcher habitat, upland buffers for
all known flycatcher populations, cowbird control, specific measures to
protect against detrimental edge effects, and monitoring.
(1) Benefits of Inclusion
We believe that there is minimal benefit from designating critical
habitat for the southwestern willow flycatcher within the San Diego
MSCP/HCP because, as explained above, these lands are already managed
for the conservation of covered species, including this subspecies.
As discussed above in the ``General Principles of Section 7
Consultations Used in the 4(b)(2) Balancing Process'' section, a
benefit of including an area within a critical habitat designation is
the protection provided by section 7(a)(2) of the Act that directs
Federal agencies to ensure that their actions do not result in the
destruction or adverse modification of critical habitat. We completed a
section 7 consultation on the issuance of the section 10(a)(1)(B)
permit for the County of San Diego subarea plan within the San Diego
MSCP/HCP on May 12, 1998, and concluded that the southwestern willow
flycatcher was adequately conserved and the issuance of the permit
would not jeopardize the continued existence of this subspecies.
The areas excluded as critical habitat are currently occupied by
the subspecies. If these areas were designated as critical habitat, any
actions with a Federal nexus which might adversely affect the critical
habitat would require a consultation with us, as explained above.
However, inasmuch as this area is currently occupied by the subspecies,
consultation for Federal activities which might adversely impact the
subspecies or would result in take would be required even without the
critical habitat designation. The requirement to conduct such
consultation would occur regardless of whether the authorization for
incidental take occurs under either section 7 or section 10 of the Act.
The inclusion of these areas of non-Federal land as critical
habitat would provide some additional Federal regulatory benefits for
the subspecies consistent with the conservation standard based on the
Ninth Circuit Court's decision in Gifford Pinchot. A benefit of
inclusion would be the requirement of a Federal agency to ensure that
their actions on these non-Federal lands do not likely result in the
destruction or adverse modification of critical habitat. This
additional analysis to determine destruction or adverse modification of
critical habitat is likely to be small because the lands are not under
Federal ownership and any Federal agency proposing a Federal action on
these areas of non-Federal lands would likely consider the conservation
value of these lands as identified in the San Diego MSCP/HCP and take
the necessary steps to avoid jeopardy or the destruction or adverse
modification of critical habitat.
We believe that designating any lands within the San Diego MSCP/HCP
Plan
[[Page 60933]]
Area would provide little additional educational and Federal regulatory
benefits for the subspecies. The additional educational benefits that
might arise from critical habitat designation have been largely
accomplished through the public review and comment of the environmental
impact documents which accompanied the development of the San Diego
MSCP/HCP Plan Area and the recognition by some of the landowners of the
presence of the endangered southwestern willow flycatcher and the value
of their lands for the conservation and recovery of the species. In
addition, as discussed in the Educational Benefits of Critical Habitat
section above, we believe the conservation achieved through
implementing HCPs is typically greater than would be achieved through
multiple site-by-site, project-by-project, section 7 consultations
involving consideration of critical habitat.
We believe that there would be little additional informational
benefit gained from including the San Diego MSCP/HCP Plan Area within
the designation because this area was included in the proposed rule as
having lands that contain features essential to the conservation of the
flycatcher. Consequently, we believe that the informational benefits
are already provided even though this area is not designated as
critical habitat. Additionally, the purpose of the San Diego MSCP/HCP
to provide protection and enhancement of habitat for the southwestern
willow flycatcher is already well established among State and local
governments, and Federal agencies.
(2) Benefits of Exclusion
As mentioned above, the San Diego MSCP/HCP provides for the
conservation of occupied and historic habitat, the removal of non-
native predators, and the avoidance of impacts if a population were to
be found. The San Diego MSCP/HCP therefore provides for protection of
the PCEs, and addresses special management needs such as surveys in
suitable habitat and management of habitat. Designation of critical
habitat would therefore be redundant on these lands, and would not
provide additional protections.
The benefits of excluding lands within HCPs from critical habitat
designation include relieving landowners, communities, and counties of
any 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 benefits to the subspecies if participants
abandon the voluntary HCP process because it may result in additional
regulations requiring more of them than other parties who have not
voluntarily participated in conservation efforts for the subspecies.
Designation of critical habitat within the boundaries of approved HCPs
could 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,
particularly large, regional HCPs that involve numerous participants
and address landscape-level conservation of species and habitats. By
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. The
jeopardy analysis is similar to the analysis of adverse modification to
critical habitat. 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 due to the presence of the species. HCP and
NCCP/HCPs typically provide for greater conservation benefits to a
covered species than section 7 consultations because HCPs and NCCP/HCPs
assure the long-term protection and management of a covered species,
features essential to its conservation, and its habitat. In addition,
funding for such management is assured 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 that, in contrast to HCPs, often do not commit
the project proponent to long-term special management or protections.
Thus, a consultation typically does not accord the lands it covers the
extensive benefits a 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
In summary, we believe that the benefits of excluding the San Diego
MSCP/HCP from the designation of critical habitat for the southwestern
willow flycatcher outweigh the benefits of including these lands in
critical habitat. We find that including the San Diego MSCP/HCP would
result in very minimal, if any, additional benefits to the southwestern
willow flycatcher, as explained above.
We also find that the exclusion of these lands will not lead to the
extinction of the subspecies, nor hinder its recovery because the
management emphasis of the San Diego MSCP/HCP is to protect and enhance
habitat for the southwestern willow flycatcher.
We believe that exclusion of these lands from critical habitat will
not result in extinction of the southwestern willow flycatcher since
these lands will be conserved and managed for the benefit of this
subspecies pursuant to the San Diego MSCP/HCP. The San Diego MSCP/HCP
includes specific conservation objectives, survey requirements,
avoidance and minimization measures, and management for the
southwestern willow flycatcher that exceed any conservation value
provided as a result of a critical habitat designation, inclusive of
that following a conservation standard based on the Ninth Circuit
Court's decision in Gifford Pinchot.
The jeopardy standard of section 7 and routine implementation of
habitat conservation through the section 7 process also provide
assurances that the species will not go extinct. In addition, the
species is protected from take under section 9 of the Act. The
exclusion leaves these protections unchanged
[[Page 60934]]
from those that would exist if the excluded areas were designated as
critical habitat, inclusive of that following a conservation standard
based on the Ninth Circuit Court's decision in Gifford Pinchot.
Critical habitat is being designated for the southwestern willow
flycatcher in other areas that will be accorded the protection from
adverse modification by Federal actions using the conservation standard
based on the Ninth Circuit Court's decision in Gifford Pinchot.
Additionally, the species occurs on lands protected and managed either
explicitly for the species, or indirectly through more general
objectives to protect natural values, this factor acting in concert
with the other protections provided under the Act for these lands
absent designation of critical habitat on them, and acting in concert
with protections afforded each species by the remaining critical
habitat designation for the species, lead us to find that exclusion of
these lands within the San Diego MSCP/HCP will not result in extinction
of the southwestern willow flycatcher.
San Diego Management Unit
City of Carlsbad's Habitat Management Plan
The City of Carlsbad's Habitat Management Plan (HMP) was approved
October 15, 2004. This plan is one of seven subarea plans being
developed under the umbrella of the North County Multiple Habitat
Conservation Plan (MHCP) in northern San Diego County. Participants in
this regional conservation planning effort include the cities of
Carlsbad, Encinitas, Escondido, Oceanside, San Marcos, Solana Beach,
and Vista. The subarea plans in development are also proposed as
subregional plans under the State's NCCP and are being developed in
cooperation with the California Department of Fish and Game (CDFG). We
have determined that portions of lands within the boundaries of the HMP
contain lands with features essential to the conservation of the
southwestern willow flycatcher, including all of Agua Hedionda Lagoon
and a portion of Agua Hedionda Creek.
Approximately 9,943 ha (24,570 ac) of land are within the Carlsbad
HMP planning area, with about 3,561 ha (8,800 ac) remaining as natural
habitat for species covered under the plan. Of this remaining habitat,
the Carlsbad HMP proposes to establish a preserve system for
approximately 2,746 ha (6,786 ac). Conservation measures specific to
the southwestern willow flycatcher within the Carlsbad HMP include the
conservation of 200 ha (494 ac) (86 percent) of the riparian vegetation
in the city and 10 ha (25 ac) (86 percent) of oak woodland. Preserved
lands include the four highest quality habitat areas for flycatchers
identified within the plan area, including lands along Agua Hedionda
Creek. For proposed projects in or adjacent to suitable habitat outside
of preserve areas, mandatory surveys will be conducted, with impacts to
breeding flycatchers completely avoided or reduced, as described in the
paragraph below. Flycatcher habitat will be managed to restrict
activities that cause degradation, including livestock grazing, human
disturbance clearing or alteration of riparian vegetation, brown-headed
cowbird parasitism, and insufficient water levels leading to loss of
riparian habitat and surface water. Area-specific management directives
shall include measures to provide appropriate flycatcher habitat,
cowbird control, and specific measures to protect against detrimental
edge effects, and removal of invasive exotic species (e.g., Arundo
donax). Human access to flycatcher-occupied breeding habitat will be
restricted during the breeding season (May 1-September 15) except for
qualified researchers or land managers performing essential preserve
management, monitoring, or research functions. Projects that cannot be
conducted without placing equipment or personnel in or adjacent to
sensitive habitats shall be timed to ensure that habitat is removed
prior to the initiation of the breeding season.
Projects having direct or indirect impacts to the southwestern
willow flycatcher shall adhere to the following measures to avoid or
reduce impacts: (1) The removal of native vegetation and habitat shall
be avoided and minimized to the maximum extent practicable; (2) For
temporary impacts, the work site shall be returned to pre-existing
contours and revegetated with appropriate native species; (3)
Revegetation specifications shall ensure creation and restoration of
riparian woodland vegetation to a quality that eventually is expected
to support nesting southwestern willow flycatchers, recognize that it
may take many years (depending on type of activity and timing of flood
events, etc.) to achieve this state; (4) Construction noise levels at
the riparian canopy edge shall be kept below 60 dBA Leq (measured as
Equivalent Sound Level) from 5 a.m. to 11 a.m. during the peak nesting
period of March 15 to July 15. For the balance of the day/season, the
noise levels shall not exceed 60 decibels, averaged over a 1-hour
period on an A-weighted decibel (dBA) (i.e., 1 hour Leq/dBA); (5)
Brown-headed cowbirds and other exotic species which prey upon the
flycatcher shall be removed from the site; (6) For new developments
adjacent to preserve areas that create conditions attractive to brown-
headed cowbirds, jurisdictions shall require monitoring and control of
cowbirds; (7) Biological buffers of at least 30 m (100 ft) shall be
maintained adjacent to breeding flycatcher habitat, measured from the
outer edge of riparian vegetation. Within this 30 m (100 ft) buffer, no
new development shall be allowed, and the area shall be managed for
natural biological values as part of the preserve system; (8) Suitable
unoccupied breeding habitat preserved within the FPA shall be managed
to maintain or mimic effects of natural stream or river processes
(e.g., periodic substrate scouring and depositions); and (9) Natural
riparian connections with upstream riparian habitat shall be maintained
to ensure linkage to suitable occupied and unoccupied breeding habitat.
(1) Benefits of Inclusion
We believe that there is minimal benefit from designating critical
habitat for the southwestern willow flycatcher within the Carlsbad HMP
because, as explained above, these lands are already managed for the
conservation of covered species, including this subspecies.
As discussed above in the ``General Principles of Section 7
Consultations Used in the 4(b)(2) Balancing Process'' section, a
benefit of including an area within a critical habitat designation is
the protection provided by section 7(a)(2) of the Act that directs
Federal agencies to ensure that their actions do not result in the
destruction or adverse modification of critical habitat. We completed a
section 7 consultation on the issuance of the section 10(a)(1)(B)
permit for the Carlsbad HMP on November 9, 2004, and concluded that the
southwestern willow flycatcher was adequately conserved and the
issuance of the permit would not jeopardize the continued existence of
this subspecies.
The areas excluded as critical habitat are currently occupied by
the species. If these areas were designated as critical habitat, any
actions with a Federal nexus which might adversely affect the critical
habitat would require a consultation with us, as explained above.
However, inasmuch as this area is currently occupied by the species,
consultation for Federal activities which might adversely impact the
species or would result in take would be required even without the
critical habitat
[[Page 60935]]
designation. The requirement to conduct such consultation would occur
regardless of whether the authorization for incidental take occurs
under either section 7 or section 10 of the Act.
The inclusion of these areas of non-Federal land as critical
habitat would provide some additional Federal regulatory benefits for
the species consistent with the conservation standard based on the
Ninth Circuit Court's decision in Gifford Pinchot. A benefit of
inclusion would be the requirement of a Federal agency to ensure that
their actions on these non-Federal lands do not likely result in the
destruction or adverse modification of critical habitat. This
additional analysis to determine destruction or adverse modification of
critical habitat is likely to be small because the lands are not under
Federal ownership and any Federal agency proposing a Federal action on
these areas of non-Federal lands would likely consider the conservation
value of these lands as identified in the Carlsbad HMP and take the
necessary steps to avoid jeopardy or the destruction or adverse
modification of critical habitat.
We believe that designating any lands within the Carlsbad HMP would
provide little additional educational and Federal regulatory benefits
for the species. The additional educational benefits that might arise
from critical habitat designation have been largely accomplished
through the public review and comment of the environmental impact
documents which accompanied the development of the Carlsbad HMP and the
recognition by some of the landowners of the presence of the endangered
southwestern willow flycatcher and the value of their lands for the
conservation and recovery of the species. In addition, as discussed in
the Educational Benefits of Critical Habitat section above, we believe
the conservation achieved through implementing HCPs is typically
greater than would be achieved through multiple site-by-site, project-
by-project, section 7 consultations involving consideration of critical
habitat.
We believe that there would be little additional informational
benefit gained from including the Carlsbad HMP within the designation
because this area was included in the proposed rule as having lands
containing features essential to the conservation of the flycatcher.
Consequently, we believe that the informational benefits are already
provided even though this area is not designated as critical habitat.
Additionally, the purpose of the Carlsbad HMP to provide protection and
enhancement of habitat for the southwestern willow flycatcher is
already well established among State and local governments, and Federal
agencies.
(2) Benefits of Exclusion
As mentioned above, the Carlsbad HMP provides for the conservation
of occupied and historic habitat, the removal of non-native predators,
and the avoidance of impacts if a population were to be found. The
Carlsbad HMP therefore provides for protection of the PCEs, and
addresses special management needs such as surveys in suitable habitat
and management of habitat. Designation of critical habitat would
therefore be redundant on these lands, and would provide little, if
any, additional protections.
The benefits of excluding lands within HCPs from critical habitat
designation include relieving landowners, communities, and counties of
any 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 requiring additional
regulations compared to other parties who have not voluntarily
participated in species conservation. Designation of critical habitat
within the boundaries of approved HCPs could 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,
particularly large, regional HCPs that involve numerous participants
and address landscape-level conservation of species and habitats. 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. The
jeopardy analysis is similar to the analysis of adverse modification to
critical habitat. 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. HCP and NCCP/HCPs typically provide for
greater conservation benefits to a covered species than section 7
consultations because HCPs and NCCP/HCPs assure the long-term
protection and management of a covered species and its habitat, and
funding for such management is assured 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 that, in contrast to HCPs, often do not commit
the project proponent to long-term special management or protections.
Thus, a consultation typically does not accord the lands it covers the
extensive benefits a 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
In summary, we believe that the benefits of excluding the Carlsbad
HMP from the designation of critical habitat for the southwestern
willow flycatcher outweigh the benefits of including these lands in
critical habitat. We find that including the Carlsbad HMP would result
in very minimal, if any, additional benefits to the southwestern willow
flycatcher, as explained above.
We also find that the exclusion of these lands will not lead to the
extinction of the subspecies, nor hinder its recovery because the
management emphasis of the Carlsbad HMP is to protect and enhance
habitat for the southwestern willow flycatcher.
[[Page 60936]]
We believe that exclusion of these lands from critical habitat will
not result in extinction of the southwestern willow flycatcher since
these lands will be conserved and managed for the benefit of this
species pursuant to the Carlsbad HMP. The Carlsbad HMP includes
specific conservation objectives, survey requirements, avoidance and
minimization measures, and management for the southwestern willow
flycatcher that exceed any conservation value provided as a result of a
critical habitat designation.
The jeopardy standard of section 7 and routine implementation of
habitat conservation through the section 7 process also provide
assurances that the species will not go extinct. In addition, the
species is protected from take under section 9 of the Act. The
exclusion leaves these protections unchanged from those that would
exist if the excluded areas were designated as critical habitat.
Critical habitat is being designated for the southwestern willow
flycatcher in other areas that will be accorded the protection from
adverse modification by Federal actions using the conservation standard
based on the Ninth Circuit Court's decision in Gifford Pinchot.
Additionally, the species occurs on lands protected and managed either
explicitly for the species, or indirectly through more general
objectives to protect natural values, this factor acting in concert
with the other protections provided under the Act for these lands
absent designation of critical habitat on them, and acting in concert
with protections afforded each species by the remaining critical
habitat designation for the species, lead us to find that exclusion of
these lands within the Carlsbad HMP will not result in extinction of
the southwestern willow flycatcher.
Roosevelt Management Unit, AZ
Roosevelt Lake HCP
A HCP for Salt River Project (SRP) was completed for the operation
of Roosevelt Dam in Gila and Maricopa Counties, which included as the
action area the perimeter of Roosevelt Lake's high water mark (ERO
2002). The Record of Decision for the HCP was dated February 27, 2003.
The land within the Roosevelt Lake perimeter is Federal land withdrawn
by the U.S. Bureau of Reclamation and managed by the U.S. Forest
Service. The flycatcher population at Roosevelt Lake, depending on the
year, can be the largest population of nesting southwestern willow
flycatchers across the subspecies range (approximately 150 territories,
plus an unknown number of unmated floating/non-breeding flycatchers and
fledglings). Operation of Roosevelt Dam during low water years can
yield as much as 506 ha (1,250 ac) of occupied flycatcher habitat
within the perimeter of the high water mark. Annually, the total
available habitat varies as reservoir levels fluctuate depending on
annual precipitation with dry years yielding proportionally more
habitat. We anticipated that creation and loss of habitat would occur
over the 50 year life of the HCP. Flycatcher habitat at Roosevelt Lake
varies depending on how and when the lake recedes as a result of water
in-flow and subsequent storage capacity and delivery needs. As the lake
recedes, flat-gradient, fine moist soils are exposed which provide seed
beds for riparian vegetation. The size of Roosevelt Lake, and therefore
the amount and location of flycatcher habitat, can vary greatly due to
dam operations, floods, and drought. However, even in the expected
high-water years, we determined that some flycatcher habitat would
persist at Roosevelt Lake providing a net benefit to the bird. Species
covered in this HCP were the southwestern willow flycatcher, bald eagle
(Haliaeetus leucocephalus), and yellow-billed cuckoo (Coccyzus
americanus).
The HCP covers Roosevelt Dam operations for 50 years and involves
the conservation of a minimum of 607 ha (1,500 ac) of flycatcher
habitat off-site, outside of the Roosevelt Management Unit, on the San
Pedro, Verde, and/or Gila rivers, and possibly other streams in AZ, and
implementation of conservation measures to protect up to an additional
304 ha (750 ac) of flycatcher habitat. Measures in the HCP to protect
habitat at Roosevelt Lake include having the Forest Service hire a
Forest Service employee (USFS) to patrol and improve protection of
flycatcher habitat in the Roosevelt lakebed from adverse activities
such as fire ignition from human neglect, improper vehicle use, etc.,
and to develop habitat at the Rock House Farm Site.
The conclusion provided in our biological opinion, required in
order to issue the HCP permit, was based upon the persistence of
varying degrees of occupied southwestern willow flycatcher habitat
that, at a minimum, could possibly reach the numerical (50 territories)
and distribution goals (within Roosevelt Management Unit) established
in the Recovery Plan, under full operation of Roosevelt Dam with an
HCP. The permittee (ERO 2002) estimated that an average of 121 to 162
ha (300 to 400 ac) of suitable habitat (thus about 60 to 81 ha/150 to
200 ac of occupied habitat) would be present during the life of the
permit, which could support 45 to 90 territories. Even in a worse case
flood event, 15 to 30 territories are expected to persist. Under more
favorable habitat conditions, the area between the existing pool and
the high water mark has supported the largest local population of
flycatchers throughout the subspecies range (approximately 150 pairs).
The basis for the full-time USFS employee is to minimize the effects of
on-the-ground actions (trespass livestock, recreation, fire, habitat
clearing, development, roads, fencing, boating, gravel collection, off-
highway vehicles, etc.), not at the discretion or under the control of
SRP. While it is not possible to fully protect these areas with an on-
the-ground officer, the HCP provides an additional level of protection
that would not otherwise be available to the habitat absent the HCP.
Currently, a collection of properties have been acquired as
required by the HCP along the lower San Pedro and Gila River (Middle
Gila/San Pedro Management Unit), and a single property along the Verde
River (Verde Management Unit). Some of these properties were identified
as essential habitat in the critical habitat proposal, but were
proposed for exclusion under section 4(b)(2). In their comments on the
proposed rule, SRP specifically requested that the mitigation
properties identified in the proposal and others they acquired since
publication of the proposal, that were part of the proposal, be
included in the critical habitat designation. Therefore, due to the
discretion of the Secretary under section 4(b)(2) of the Act, and based
upon the comments received from SRP, the mitigation properties acquired
by SRP are included in the final designation as critical habitat.
(1) Benefits of Inclusion
We believe that there is minimal benefit from designating critical
habitat for the southwestern willow flycatcher within the conservation
space of Roosevelt Lake, because, as described below, the location is
occupied by many southwestern willow flycatchers and therefore, its
habitat is already under evaluation under section 7 of the Act, and
operations of Roosevelt Dam (resulting in the periodic rise and fall of
water across the land at the edges of the lake) is integral to the
long-term persistence of flycatcher habitat at Roosevelt Lake.
Therefore, while flycatcher habitat will vary in quality and quantity
over time due to the different lake levels within the
[[Page 60937]]
conservation space of Roosevelt Lake, it will persist.
With respect to operations of Roosevelt Dam, we determined in our
jeopardy analysis for our intra-Service section 7 consultation for
issuance of the Roosevelt HCP permit that dam operations would not
result in jeopardy to the southwestern willow flycatcher. As stated in
our proposal, one of the primary conservation values of proposed
critical habitat is to sustain existing populations. The threshold for
reaching destruction or adverse modification at Roosevelt Lake would
likely require a reduction in the capability of the habitat to sustain
existing populations. It is likely that actions that would reduce the
capability of the habitat to sustain a population would also jeopardize
the continued existence of the species. Because of the importance of
the conservation space at Roosevelt Lake plays for water storage, there
is no reasonable reason to believe that there would be any development
or change that would result in this piece of land being unavailable for
riparian vegetation. This is because the dam operates in a way that
continues moves water out of the reservoir to downstream lakes and
canals. Thus, dam operators are continuously in the process of creating
conservation space at Roosevelt Lake, and therefore, places for
riparian vegetation (i.e., flycatcher habitat) to grow. Constant lake
levels, which are not the desired condition at Roosevelt Lake, will not
result in the creation of the hundreds of acres of flycatcher habitat
that occurred between 1995 and 2004. On the contrary, dynamic lake
levels (like Roosevelt Dam is operated), similar to river systems, are
important for the creation and maintenance of abundant southwestern
willow flycatcher habitat at this location.
The threshold for reaching destruction or adverse modification of
critical habitat at Roosevelt Lake would likely require a reduction in
the capability of the habitat to sustain existing populations. It is
likely that actions that would reduce the capability of the habitat to
sustain a population would also jeopardize the continued existence of
the species. We concluded in our intra-Service opinion for issuance of
Roosevelt Dam HCP permit, that dam operations would sustain populations
over time (and similar to all flycatcher locations are subject to
disturbances such as flooding and drought and an increase and decrease
in populations), and therefore, would not jeopardize the flycatcher.
Therefore, the outcome of consultation under section 7 of the Act on
Roosevelt Lake Dam operations with critical habitat designated would
not likely be materially different compared to the listing of the
species alone. Similarly, we concluded in our 4(b)(8) determination in
the proposed and final rules that dam operations, like those of
Roosevelt Lake, would not result in adverse modification of critical
habitat, because normal operations resulted in conditions that allows
flycatcher habitat to persist over time.
However, dam operations are not the only possible impact to
flycatcher habitat at Roosevelt Lake, once water recedes and uncovers
the ground where flycatcher habitat can grow; the Forest Service is the
land manager. Livestock grazing and recreation, two activities that
occur in and around Roosevelt Lake, have the ability to adversely
affect critical habitat. These activities have previously occurred in
the dry conservation space of the lake. But since the mid-1990s, the
Tonto National Forest has prevented grazing from the lake bottom and
fenced habitat to limit the effects of recreation and adjacent trespass
cattle. Through the Roosevelt HCP, a Forest Protection Officer has been
hired in order to help monitor and regulate unauthorized activities
that could affect flycatcher habitat. Therefore, there is existing
management by the Forest Service and additional protections through the
HCP to protect the development, growth, and maintenance of flycatcher
habitat from unauthorized activities.
The draft environmental assessment found that minor changes in
livestock grazing or recreation through section 7 consultations, due to
a critical habitat designation, may occur in the form of additional
discretionary conservation recommendations to reduce impacts to the
primary constituent elements. If Roosevelt Lake was designated as
critical habitat, there may be some benefit through consultation under
the adverse modification standard for actions under the discretion of
the Forest Service. But, since the location is currently occupied by
breeding flycatchers, dispersing young-of-the year flycatchers,
migrating, foraging, and non-breeding flycatchers; habitat is already
considered in consultations under section 7 of the Act and current
management emphasizes habitat growth and persistence. For these reasons
and because formal consultations will likely result in only
discretionary conservation recommendations due to existing appropriate
management, we believe there is an extremely low probability of
mandatory elements (i.e., reasonable and prudent alternatives) arising
from formal section 7 consultations that include consideration of
designated critical habitat for the southwestern willow flycatcher at
Roosevelt Lake.
We believe that there would be little educational and informational
benefit gained from including Roosevelt Lake within the designation,
because this area was included in the proposed rule as essential
habitat, is discussed in this final rule, and has been the focus of
flycatcher research and water storage issues since the mid-1990s.
Consequently, we believe that the informational benefits are already
provided even though this area is not designated as critical habitat.
Additionally, the importance of Roosevelt Lake for conservation of the
flycatcher, its importance to the Roosevelt Management Unit, and to the
population of flycatchers in the state of Arizona has already been
realized by managing agencies, including the public, State and local
governments, and Federal agencies.
(2) Benefits of Exclusion
A benefit of excluding Roosevelt Lake from critical habitat
includes some reduction in administrative costs associated with
engaging in the critical habitat portion of section 7 consultations.
Administrative costs include time spent in meetings, preparing letters
and biological assessments, and in the case of formal consultations,
the development of the critical habitat component of a biological
opinion. However, because the flycatcher occupies the margins of
Roosevelt Lake, consultations are expected to occur regardless of a
critical habitat designation, and those costs to perform the additional
analysis are not expected to be significant.
The Roosevelt HCP and exclusion from critical habitat can also
facilitate other cooperative conservation activities with other
similarly situated dam operators or landowners. Continued cooperative
relations with SRP and its stakeholders is expected to influence other
future partners and lead to greater conservation than would be achieved
through multiple site-by-site, project-by-project, section 7
consultations. The benefits of excluding lands within the Roosevelt
Lake HCP area from critical habitat designation include recognizing the
value of conservation benefits associated with HCP actions; encouraging
actions that benefit multiple species; encouraging local participation
in development of new HCPs; and facilitating the cooperative activities
provided by the Service to landowners, communities, and counties in
return for their voluntary adoption of the HCP.
[[Page 60938]]
The Roosevelt HCP has and will continue to help generate important
status and trend information for flycatcher recovery. In addition to
specific flycatcher conservation actions, the development and
implementation of this HCP provides regular monitoring of flycatcher
habitat, distribution, and abundance over the 50 year permit.
Failure to exclude Roosevelt Lake could be a disincentive for other
entities contemplating partnerships as it would be perceived as a way
for the Service to impose additional regulatory burdens once
conservation strategies have already been agreed to. Private entities
are motivated to work with the Service collaboratively to develop
voluntary HCPs because of the regulatory certainty provided by an
incidental take permit under section 10(a)(1)(B) of the Act with the
``No Surprises'' assurances. This collaboration often provides greater
conservation benefits than could be achieved through strictly
regulatory approaches, such as critical habitat designation. The
conservation benefits resulting from this collaborative approach are
built upon a foundation of mutual trust and understanding. It takes
considerable time and effort to establish this foundation of mutual
trust and understanding which is one reason it often takes several
years to develop a successful HCP. Excluding this area from critical
habitat would help promote and honor that trust by providing greater
certainty for permittees that once appropriate conservation measures
have been agreed to and consulted on for the southwestern willow
flycatcher that additional consultation will not be necessary.
HCP permittees and stakeholders have submitted comments and spoke
during public hearings discussing that they view critical habitat
designation at Roosevelt Lake as unwarranted and an unwelcome intrusion
to the operation of Roosevelt Dam, and an erosion of the regulatory
certainty that is provided by their incidental take permit and the ``No
Surprises'' assurances. We received other public comments disapproving
of our identification of the conservation space of Roosevelt Lake as
essential habitat, believing designation of critical habitat at
Roosevelt Lake would limit fishing, camping, water storage, etc. There
is a concern by SRP and stakeholders that designation of critical
habitat at Roosevelt Lake has the potential to threaten the storage and
delivery of water to the greater Phoenix metropolitan area (as
described in the Economic Analysis). Should this ever come to pass, the
results could be significant, however we do not believe that scenario
is reasonably foreseeable (see discussion above). Having applicant's
understand the Service's commitment will encourage continued
partnerships with these permittees that could result in additional
conservation plans or additional lands enrolled in HCPs.
A related benefit of excluding lands within this HCP is the
continued ability by the Service to seek new partnerships. Permittees
who trust and benefit from the HCP process discuss the benefits with
others who may become future HCP participants, such as States,
counties, local jurisdictions, conservation organizations, and private
landowners. New HCPs would result in implementation of conservation
actions that we would be unable to accomplish otherwise. By excluding
areas covered by HCPs from critical habitat designation, we preserve
these partnerships and promote more effective conservation actions in
the future.
Our collaborative relationships with the Roosevelt Lake HCP
permittees clearly make a difference in our partnership with the
numerous stakeholders involved and influence our ability to form
partnerships with others. Concerns over perceived added regulation
potentially imposed by critical habitat harms this collaborative
relationship by leading to distrust. Our experience has demonstrated
that successful completion of one HCP has resulted in the development
of other conservation efforts and HCPs with other landowners.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
In summary, we find that the benefits of designating critical
habitat for the southwestern willow flycatcher at Roosevelt Lake are
relatively small in comparison to the benefits of exclusion. We find
that including Roosevelt Lake would result in very minimal, if any
additional benefits to the southwestern willow flycatcher, as explained
above. In making this finding, we have weighed the benefits of
including these lands as critical habitat with an operative HCP and
management by the Forest Service, and without critical habitat.
Excluding Roosevelt Lake would eliminate some additional administrative
effort and cost during the consultation process pursuant to section 7
of the Act. Excluding Roosevelt Lake would continue to help foster
development of future HCPs and strengthen our relationship with
Roosevelt HCP permittees and stakeholders. Roosevelt Dam operations
will continue to foster the maintenance, development, and necessary
recycling of habitat for the flycatcher in the long-term due to the
dynamic nature of water storage and delivery. Forest Service management
fosters the presence of flycatcher habitat, and there is virtually no
risk of development within the conservation space of Roosevelt Lake.
Excluding Roosevelt Lake eliminates regulatory uncertainty associated
with the permittees HCP, and any possible risk to water storage and
delivery to the greater Phoenix metropolitan area. We have concluded
that the benefits of the Roosevelt Dam operations underneath the
coverage of the Roosevelt HCP and Forest Service management outweigh
those that would result from the designation. We have therefore
excluded these lands from the final critical habitat designation
pursuant to section 4(b)(2) of the Act.
We also find that the exclusion of these lands will not lead to the
extinction of the species, nor hinder its recovery because the
operation of Roosevelt Dam, maintenance of the conservation space of
the lake, and Forest Service management will ensure the long-term
persistence and protection of flycatcher habitat at Roosevelt Lake. We
determined in our intra-Service section 7 biological opinion for the
issuance of the Roosevelt HCP permit that operations would not result
in jeopardy. Our 4(b)(8) determination in this proposal indicated that
we did not believe dam operations, like Roosevelt Dam, would result in
adverse modification. We determined that while incidental take will
occur, and habitat will fluctuate in its abundance and quality,
reservoir operations resulting in a dynamic environment were necessary
for the long-term persistence of habitat. It was estimated that an
average of 121 to 162 ha (300 to 400 ac) of suitable habitat (thus
about 60 to 81 ha/150 to 200 ac of occupied habitat) would be present
during the life of the permit, which could support 45 to 90
territories. Even in a worse case flood event, 15 to 30 territories are
expected to persist. Under more favorable habitat conditions, the area
between the existing pool and the high water mark has supported the
largest local population of flycatchers throughout the subspecies range
(approximately 150 pairs). The best case scenario and average estimated
amount of available habitat can far surpasses the amount needed to
support the 50 territory numerical goal recommended in the Recovery
Plan (USFWS 2002).
[[Page 60939]]
Hoover to Parker, Parker to Southerly International Border, and Middle
Colorado Management Units, CA/AZ/NV
Lower Colorado River Multi-Species Conservation Plan (LCR MSCP)
The LCR MSCP was developed for areas along the lower Colorado River
along the borders of AZ, CA, and NV from the conservation space of Lake
Mead to Mexico, in the Counties of La Paz, Mohave, and Yuma in AZ;
Imperial, Riverside, and San Bernardino Counties in CA, and Clark
County in NV. The LCR MSCP primarily covers activities associated with
water storage, delivery, diversion, and hydroelectric production. The
Record of Decision was signed by the Secretary of Interior on April 2,
2005. Discussions began on the development of this HCP in 1994, but an
important catalyst was a 1997 jeopardy biological opinion for the
southwestern willow flycatcher issued to the Bureau of Reclamation for
lower Colorado River operations (USFWS 1997).
The Federal agencies involved in the LCR MSCP include the Bureau of
Reclamation, Bureau of Indian Affairs, National Park Service, Bureau of
Land Management, Western Area Power Administration, and U.S. Fish and
Wildlife Service. The permittees covered in AZ are: The Arizona
Department of Water Resources; Arizona Electric Power Cooperative Inc.;
Arizona Game and Fish Department; Arizona Power Authority; Central
Arizona Water Conservation District; Cibola Valley Irrigation and
Drainage District; City of Bullhead City; City of Lake Havasu City;
City of Mesa; City of Somerton; City of Yuma; Electrical District No.
3, Pinal County, Arizona; Golden Shores Water Conservation District;
Mohave County Water Authority; Mohave Valley Irrigation and Drainage
District; Mohave Water Conservation District, North Gila Valley
Irrigation and Drainage District; Salt River Project Agricultural
Improvement and Power District; Town of Fredonia; Town of Thatcher;
Town of Wickenburg; Unit ``B'' Irrigation and Drainage District;
Wellton-Mohawk Irrigation and Drainage District; Yuma County Water
Users' Association; Yuma Irrigation District; and Yuma Mesa Irrigation
and Drainage District. The permittees covered in CA are: The City of
Needles, the Coachella Valley Water District, the Colorado River Board
of California, the Imperial Irrigation District, the Los Angeles
Department of Water and Power, the Palo Verde Irrigation District, the
San Diego County Water Authority, the Southern California Edison
Company, the Southern California Public Power Authority, Bard Water
District, and The Metropolitan Water District of Southern California.
The permittees covered in NV are: The Colorado River Commission of
Nevada, the Nevada Department of Wildlife, Basic Water Company, and the
Southern Nevada Water Authority.
The Southwestern Willow Flycatcher Management Units primarily
encompassed in the LCR MSCP are the Hoover to Parker and Parker to
Southerly International Border Management units. Streams in the Middle
Colorado (Colorado River/Lake Mead), Virgin (Virgin River), and
Pahranagat (Muddy River) Management units in AZ, UT, and NV, are
briefly represented where they surround Lake Mead (including the
conservation space of Lake Mead which extends up the Colorado River to
Separation Canyon). The southwestern willow flycatcher is a key species
in the LCR MSCP where the permittees will create and maintain 1,639 ha
(4,050 ac) of flycatcher habitat over the 50-year life of the permit
(2005 to 2055). Additional research, management, monitoring, and
protection of flycatchers and flycatcher habitat will occur from fire,
nest predators, and brood parasites. The development of flycatcher
habitat will occur specifically throughout the Hoover to Parker and
Parker to Southerly International Border Management units, and is
expected to meet conservation goals of the flycatcher identified in the
Recovery Plan by increasing numbers of territories in appropriate
Management Units. Management and tasks associated with the HCP will
result in improving and maintaining essential migration stopover
habitat, improving meta-population stability, and reducing the risk of
catastrophic losses due to fire. In addition to creation and subsequent
management of flycatcher habitats, provision is made in the LCR MSCP to
provide funds to ensure the maintenance of existing flycatcher habitats
within the Management Units. The LCR MSCP will also cover 26 species,
including 5 more federally listed animals: Yuma clapper rail (Rallus
longirostris yumanensis), Desert Tortoise (Gopherus agassizii),
razorback sucker (Xyrauchen texanus), bonytail (Gila elegans), humpback
chub (Gila cypha).
As a result of the development of the LCR MSCP, and in conjunction
with (see Relationship of Critical Habitat to National Wildlife Refuge
Management Plans--Exclusions Under Section 4(b)(2) of the Act, and
Relationship of Critical Habitat to Tribal Management Plans--Exclusions
Under Section 4(b)(2) of the Act sections below) Southwestern Willow
Flycatcher Tribal Management Plans and conservation of southwestern
willow flycatcher habitat on National Wildlife Refuges (NWR) along the
Lower Colorado River, there is significant conservation of existing
flycatcher habitat and development of new flycatcher habitat throughout
the length of the LCR MSCP planning area (Lake Mead to Mexico). The LCR
MSCP and management of NWR and Tribal Lands will result in thousands of
acres of restored, protected, and managed flycatcher habitat for
nesting, migrating, foraging, territorial, non-breeding, and dispersing
birds capable of reaching conservation goals established in the
Recovery Plan. As a result of the assurances and protections provided
the southwestern willow flycatcher and its habitat, we are excluding
the length of the Lower Colorado River from the conservation space of
Lake Mead (which extends up to Separation Canyon) downstream to the
Southerly International Border from designation as flycatcher critical
habitat.
(1) Benefits of Inclusion
We believe that there is minimal benefit from designating critical
habitat for the southwestern willow flycatcher along the length of the
lower Colorado River from Lake Mead to Mexico, because as described
above, the LCR MSCP commits to developing, managing, and protecting
thousands of acres of flycatcher habitat. Additionally, over a thousand
acres of riparian habitat that can be used by flycatchers will
collectively be restored, managed, and maintained on NWRs (Havasu,
Cibola, and Imperial) and Tribal Lands (Hualapai, Colorado River,
Chemehuevi, Fort Mohave, and Quechan--Fort Yuma) along the lower
Colorado River within the area covered by the LCR MSCP. The culmination
of these efforts is anticipated to surpass recovery goals recommended
in the Recovery Plan; maintain, develop and improve migration,
dispersal, sheltering, and foraging habitat; develop metapopulation
stability; and protect against catastrophic losses.
Under section 7, critical habitat designation will provide little
additional benefit to the southwestern willow flycatcher within the
boundaries of the LCR MSCP. The catalyst for the LCR MSCP was largely a
result of a jeopardy biological opinion (USFWS 1997) for the
southwestern willow flycatcher to the Bureau of Reclamation for its
lower Colorado River operations. As a result, the LCR MSCP and its
Implementing Agreement are designed to ensure the conservation of the
flycatcher within the plan area and
[[Page 60940]]
include management measures to protect, restore, enhance, manage, and
monitor habitat to benefit the conservation of flycatcher. The adequacy
of plan measures to protect the flycatcher and its habitat has
undergone thorough evaluation in the section 7 consultations completed
prior to approval of the plans, and therefore, the benefit of including
these areas to require section 7 consultation for critical habitat is
negated.
This HCP involved public participation through public notices and
comment periods associated with the NEPA process prior to being
approved. Additionally, this HCP is one of the largest HCPs in the
country, with an immense list of stakeholders and permittees from CA,
AZ, and NV that took about a decade to complete. Therefore, managing
agencies, States, counties, cities, and other stakeholders are aware of
the importance of the lower Colorado River for the southwestern willow
flycatcher. For these reasons, we believe that designation of critical
habitat would provide little additional educational benefit the area
covered by this approved HCP. Federal actions that may affect the
flycatcher will still require consultation under section 7 of the Act.
With respect to lower Colorado River operations covered under the
LCR MSCP, we determined in our jeopardy analysis for our intra-Service
section 7 consultation for issuance of the HCP permit that operations
with the included protections, mitigation and management would not
result in jeopardy to the southwestern willow flycatcher. As stated in
our proposal, one of the primary conservation values of proposed
critical habitat is to sustain existing populations. The threshold for
reaching destruction or adverse modification along the Lower Colorado
River would likely require a reduction in the capability of the habitat
to sustain existing populations. It is likely that actions that would
reduce the capability of the habitat to sustain a population would also
jeopardize the continued existence of the species. Because of the
development, restoration, and protection of riparian habitat attributed
to the LCR MSCP, NWRs, and Tribes, flycatcher habitat will be more
abundant, more widespread, and of higher quality than conditions today
and the recent past.
Covered activities under the LCR MSCP are not the only possible
impacts to flycatcher habitat along the Lower Colorado River. There are
continued projects developed, carried out, funded, and permitted by
Federal agencies such as Bureau of Reclamation and Bureau of Land
Management that are not covered by the LCR MSCP. Fire management,
restoration, recreation, and other activities have the ability to
adversely affect the flycatcher and critical habitat. The draft
environmental assessment for this proposed rule found that minor
changes in restoration, fire management, and recreation could occur as
result of a critical habitat designation in the form of additional
discretionary conservation recommendations to reduce impacts to the
primary constituent elements. Therefore, if the lower Colorado River
was designated as critical habitat, there may be some benefit through
consultation under the adverse modification standard for actions not
covered by the LCR MSCP. But, since the proposed river segments are
occupied by breeding flycatchers, dispersing young-of-the year
flycatchers, migrating, foraging, and non-breeding flycatchers; habitat
is already considered in consultations under section 7 of the Act. For
these reasons and because formal consultations will likely result in
only discretionary conservation recommendations due to existing
restoration and management efforts along the length of the Lower
Colorado River due to the LCR MSCP and restoration and management
occurring on NWRs and Tribal Lands, we believe there is a low
probability of mandatory elements (i.e., reasonable and prudent
alternatives) arising from formal section 7 consultations that include
consideration of designated critical habitat for the southwestern
willow flycatcher along the Lower Colorado River from Lake Mead to
Mexico.
(2) Benefits of Exclusion
A benefit of excluding the lower Colorado River from critical
habitat includes some reduction in administrative costs associated with
engaging in the critical habitat portion of section 7 consultations.
Administrative costs include time spent in meetings, preparing letters
and biological assessments, and in the case of formal consultations,
the development of the critical habitat component of a biological
opinion. However, because the flycatcher occupies the lower Colorado
River for a variety of life history needs, consultations are expected
to occur regardless of a critical habitat designation, and those costs
to perform the additional analysis are not expected to be significant.
The exclusion of the lower Colorado River from critical habitat as
a result of the LCR MSCP can help facilitate other cooperative
conservation activities with other similarly situated dam operators or
landowners. Continued cooperative relations with the three states and
myriad of stakeholders is expected to influence other future partners
and lead to greater conservation than would be achieved through
multiple site-by-site, project-by-project efforts, and associated
section 7 consultations. The benefits of excluding lands within the LCR
MSCP plan area from critical habitat designation include recognizing
the value of conservation benefits associated with HCP actions;
encouraging actions that benefit multiple species; encouraging local
participation in development of new HCPs; and facilitating the
cooperative activities provided by the Service to landowners,
communities, and counties in return for their voluntary adoption of the
HCP.
The LCR MSCP will also help generate important status and trend
information for flycatcher recovery. In addition to specific flycatcher
conservation actions, the development and implementation of this HCP
provides regular monitoring of flycatcher habitat, distribution, and
abundance over the 50-year permit.
Failure to exclude the lower Colorado River covered under the LCR
MSCP could be a disincentive for other entities contemplating
partnerships as it would be perceived as a way for the Service to
impose additional regulatory burdens once conservation strategies have
already been agreed to. Private entities are motivated to work with the
Service collaboratively to develop voluntary HCPs because of the
regulatory certainty provided by an incidental take permit under
section 10(a)(1)(B) of the Act with the No Surprises Assurances. This
collaboration often provides greater conservation benefits than could
be achieved through strictly regulatory approaches, such as critical
habitat designation. The conservation benefits resulting from this
collaborative approach are built upon a foundation of mutual trust and
understanding. It has taken considerable time and effort to establish
this foundation of mutual trust and understanding which is one reason
it often takes several years to develop a successful HCP. Excluding
this area from critical habitat would help promote and honor that trust
by providing greater certainty for permittees that once appropriate
conservation measures have been agreed to and consulted on for listed
and sensitive species additional consultation will not be necessary.
HCP permittees and stakeholders submitted comments and spoke during
public hearings discussing that they
[[Page 60941]]
view critical habitat designation along the lower Colorado River as
unwarranted and an unwelcome intrusion to river operations, and an
erosion of the regulatory certainty that is provided by their
incidental take permit and the No Surprises assurances. There is a
concern by agencies and stakeholders that designation of critical
habitat along the lower Colorado River has the potential to threaten
the storage, delivery, and diversion of water and hydroelectric
production for AZ, CA, and NV. Should this ever come to pass, the
economic results would be the most significant throughout the bird's
range (see Economic Analysis), however we do not believe this scenario
is reasonably foreseeable (see discussion above). Having applicants
understand the Service's commitment will encourage continued
partnerships with these permittees that could result in additional
conservation plans or additional lands enrolled in HCPs.
Our collaborative relationships with the LCR MSCP permittees
clearly make a difference in our partnership with the numerous
stakeholders involved and influence our ability to form partnerships
with others. Concerns over perceived added regulation potentially
imposed by critical habitat harms this collaborative relationship by
leading to distrust. Our experience has demonstrated that successful
completion of one HCP has resulted in the development of other
conservation efforts and HCPs with other landowners.
The benefits of excluding this HCP from critical habitat
designation include relieving Federal agencies, State agencies,
landowners, communities, and counties of any additional regulatory
burden that might be imposed by critical habitat. This HCP took many
years to develop and, upon completion, became a river long conservation
plan that is consistent with the recovery objectives for the flycatcher
within the plan area. Additionally, this HCP provides conservation
benefits to 20 unlisted sensitive species. Imposing an additional
regulatory review after the 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 future participants abandon the voluntary HCP
process. Designation of critical habitat along the lower Colorado River
could be viewed as a disincentive to those entities currently
developing HCPs or contemplating them in the future. The benefit of
excluding the lower Colorado River within the approved LCR MSCP from
critical habitat outweighs the benefits of its inclusion.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
In summary, we find that the benefits of designating critical
habitat for the southwestern willow flycatcher along the Lower Colorado
River (Lake Mead to Mexico) are relatively small in comparison to the
benefits of exclusion. We find that including the Lower Colorado River
would result in very minimal, if any additional benefits to the
southwestern willow flycatcher, as explained above. In making this
finding, we have weighed the benefits of including these lands as
critical habitat with an operative HCP and management by NWRs and
Tribal Lands, and without critical habitat. Excluding the Lower
Colorado River would eliminate some additional administrative effort
and cost during the consultation process pursuant to section 7 of the
Act. Excluding the Lower Colorado River would continue to help foster
development of future HCPs and strengthen our relationship with AZ, CA,
and NV permittees and stakeholders. Excluding the Lower Colorado River
eliminates regulatory uncertainty associated with permittees and
stakeholders. Excluding the lower Colorado River eliminates any
possible risk to water storage, delivery, diversion and hydroelectric
production to AZ, NV, and CA, and therefore significant potential
economic costs due to a critical habitat designation. We have therefore
concluded that the benefits to the flycatcher and its habitat as a
result of the restoration, maintenance, and management activities
attributed to the LCR MSCP, NWR and Tribes outweigh those that would
result from the addition of a critical habitat designation. We have
therefore excluded these lands from the final critical habitat
designation pursuant to section 4(b)(2) of the Act.
We also find that the exclusion of the lower Colorado River from
Lake Mead to Mexico (Southerly International Border) will not lead to
the extinction of the subspecies, nor hinder its recovery, because
restoration, maintenance, and management of southwestern willow
flycatcher habitat due to the LCR MSCP, and by NWRs and Tribes will
ensure the long-term persistence and protection of flycatcher habitat
along the lower Colorado River. The LCR MSCP provides for a greater
conservation benefit to the flycatcher than consultations pursuant to
section 7 of the Act because this HCP assures the long-term protection
and management of a flycatcher habitat, and funding for this
management. Such assurances are typically not provided by consultations
under section 7 of the Act that, in contrast to HCPs, often do not
commit the project proponent to long-term special management or
protections. Thus, a consultation typically does not accord the lands
it covers the extensive benefits an HCP provides. We determined in our
intra-Service section 7 biological opinion for the issuance of the LCR
MSCP permit that the lower Colorado River operations would not result
in jeopardy. The southwestern willow flycatcher is a key species in the
LCR MSCP where the permittees will create and maintain 1,639 ha (4,050
ac) of flycatcher habitat over the 50-year life of the permit (2005 to
2055). As a result of appropriate placement of flycatcher habitat
developed through the LCR MSCP along with the restoration, management
and maintenance of flycatcher habitat on NWRs and Tribes, we expect to
meet and possibly surpass the 50 territory goal for the Hoover to
Parker Management Unit, and 150 territory goal for the Parker to
Southerly International Boundary Management Unit. We are therefore
excluding the area covered under the LCR MSCP (Lake Mead to Southerly
International Border) from critical habitat designation, because under
section 4(b)(2) of the Act, we find that the benefits of exclusion
exceed the benefits of inclusion, and exclusion would not result in
extinction of the subspecies.
Relationship of Critical Habitat to State and Federal Wildlife
Conservation Areas--Exclusions Under Section 4(b)(2) of the Act)
State Wildlife Areas (SWA)
Pahranagat Management Unit, NV
Key Pittman State Wildlife Area
The Key Pittman Wildlife Area is located in Lincoln County, NV, and
contains a wide diversity of habitats within its 539 ha (1,332 ac). The
Pahranagat River travels through portion of the Key Pittman Wildlife
Area, including Nesbitt Lake, an impounded area along the river. The
State of Nevada's Department of Wildlife owns and manages this
property. The Nevada Fish and Game Commission purchased portions of the
area in 1962 and 1966, primarily for waterfowl hunting, and as a
secondary goal, habitat for other wetland species. A draft management
plan was completed in November 2003 and provides the framework for the
next 10 years. The plan went through stakeholder meetings and public
review.
We determined that the entire stretch of the Pahranagat River,
through this
[[Page 60942]]
Wildlife Area, is essential to the conservation of the southwestern
willow flycatcher. A total of 4 to 10 southwestern willow flycatcher
territories have been detected from 1999 to 2002, 9 were detected in
2002. The State of Nevada fences the known flycatcher habitat in order
to protect it from livestock grazing, manages water to maintain
habitat, monitors the status of flycatchers, and is actively planting
riparian plants to improve the distribution of riparian habitat. While
the plan has not been finalized it is being implemented. In addition,
the area has been under management for wildlife since the 1960s with
conservation efforts targeted towards waterfowl, wetland species, and
specifically the southwestern willow flycatcher. As a result of the
assurances and protections provided the southwestern willow flycatcher
and its habitat on the Key Pittman State Wildlife Area, we are
excluding this area from critical habitat. Our 4(b)(2) analysis is
provided below.
Pahranagat and Virgin Management Units, NV
Overton State Wildlife Area
The Overton Wildlife Area is located in Clark County, NV, and
contains a wide diversity of habitats within its 7,146 ha (17,657 ac).
The Muddy River and Virgin River travel through a small portion of the
State Wildlife Management Area near Lake Mead. The State of Nevada's
Department of Wildlife owns and manages this property. A management
plan was completed in December 2000 and provides the framework for the
next 10 years. The plan went through stakeholder meetings and public
review.
We determined that the stretches of the Muddy and Virgin rivers
through the boundaries of the Overton Wildlife Area are essential to
the conservation of the southwestern willow flycatcher. A total of one
to two southwestern willow flycatcher territories have been detected
within the Overton Wildlife Area from 1997 to 2002. Riparian habitat is
being enhanced and protected for neotropical migratory birds including
southwestern willow flycatchers. A minimum of a quarter-acre willow
patch and varying amount of cottonwood, mesquite, and hackberry will be
planted annually in locations able to support native riparian trees,
and water is being managed to improve and maintain riparian habitat.
Riparian habitat is protected from livestock grazing, because no
grazing occurs in the Wildlife Area. This Wildlife Area was developed
for wetland habitat and waterfowl activities (including hunting). As a
result, flycatcher-related riparian habitat maintenance activities
described in the management plan are consistent with the management
goals of the Wildlife Area. As a result of the assurances and
protections provided the southwestern willow flycatcher and its habitat
on the Overton Wildlife Area, we are excluding this area from critical
habitat. Our 4(b)(2) analysis is provided below.
Bill Williams Management Unit, AZ
Alamo Lake State Wildlife Area
The Alamo State Wildlife Area (AWA) in La Paz and Mohave counties
was created under provisions of the Fish and Wildlife Coordination Act
(16 U.S.C. 661-66c), Public Land Order 492 (PLO 492), and the General
Plan agreement between the Secretary of the Army, Secretary of the
Interior, and Director of AZ Game and Fish, signed January 19, 1968
(Arizona Game and Fish Department-Arizona State Parks 1997). A lease
agreement between the Arizona Game and Fish Department Commission and
the U.S. Army Corps of Engineers was signed in 1970 establishing the
AWA for fish and wildlife conservation and management purposes (Arizona
Game and Fish Department--Arizona State Parks 1997). The present lease
area encompasses approximately 9,140 ha (22,586 ac). Public input was
solicited and addressed in development of the AWA Management Plan
through scoping and the NEPA (Arizona Game and Fish Department--Arizona
State Parks 1997).
The AWA Management Plan describes the unique riparian, wetland, and
aquatic aspects of the area for a variety of species, specifically
identifying the southwestern willow flycatcher. As a result, two of the
specific resources that management emphasizes are directed toward the
habitat needs of the flycatcher: (1) Maintain and enhance aquatic and
riparian habitats to benefit wildlife; and (2) restore, manage, and
enhance habitats for wildlife of special concern. In order to
accomplish this goal, no cattle grazing is allowed in the riparian
areas on the upper end of Alamo Lake and the lower portions of the
Santa Maria and Big Sandy Rivers. Also, recreation (i.e. off-road
vehicles) is identified as important management objective. The number
of territories at Alamo Lake within the AWA has varied annually between
4 and 32 territories from 1994 to 2003 (USGS 2004).
We determined that the segments of the Big Sandy, Santa Maria, and
Bill Williams Rivers at the upper end of Alamo Lake within the AWA are
essential to the conservation of the southwestern willow flycatcher.
The AWA has been in existence for over 30 years under the management of
Arizona Game and Fish Department. The AWA was developed for wildlife
conservation. The current AWA Management Plan specifically emphasizes
the importance of riparian habitat management for southwestern willow
flycatchers. Management has fostered an increasing population, with the
number of territories exceeding 20 in all but one season since 1999.
The AWAs goals are consistent with the habitat needs of the flycatcher.
As a result of the assurances and protections provided the southwestern
willow flycatcher and its habitat on the Alamo Wildlife Area, we are
excluding this area from critical habitat.
(1) Benefits of Inclusion
We believe that there is minimal benefit from designating critical
habitat for the southwestern willow flycatcher on these State Wildlife
Areas because, as explained in detail above, these lands are already
managed for the conservation of wildlife, including the southwestern
willow flycatcher.
Inclusion of lands as critical habitat can provide a benefit due to
the improved educational aspect it provides land managers/owners.
However, in this case, due to the conservation aspect of these lands
specifically for wildlife and management there is an educational focus
already being provided for southwestern willow flycatchers. In
addition, these areas were identified as essential habitat for the
southwestern willow flycatcher in our proposed rule. A critical habitat
designation would not likely result in improved educational benefits
beyond what is being provided.
As stated in the draft environmental assessment, the primary
conservation value of the proposed critical habitat segments is to
sustain existing populations. The threshold for reaching destruction or
adverse modification on SWAs would likely require a reduction in the
capability of the habitat to sustain existing populations. It is likely
that actions that would reduce the capability of the habitat to sustain
a population would also jeopardize the continued existence of the
species. Consequently, the outcome of the section 7 consultations on
SWAs may not be materially different with designation of critical
habitat compared to the listing of the species alone. In addition,
given that these lands are managed for the conservation of wildlife,
and specifically have established measures for southwestern willow
flycatchers, it is highly unlikely that the SWAs would consider
undertaking any projects that
[[Page 60943]]
would result in a long-term reduction of the capability of the habitat
to sustain existing populations. To the contrary, activities occurring
within SWAs are specifically for the benefit of wildlife, with
management being conducted for the restoration, improvement, and
protection of flycatcher habitat.
As described above, all of SWA lands proposed for critical habitat
may have additional conservation value above sustaining existing
populations, because they are managing these lands to improve, protect,
and expand upon the amount of nesting habitat that would provide for
growth of existing populations. Expansion of existing populations in
these areas would be an element of recovering the southwestern willow
flycatcher. Accordingly, through section 7 consultations that may
occur, some benefit may incur through the adverse modification standard
and whether or not the activity results in a reduction in the
suitability of the habitat to support expansion of existing
populations. Therefore, because formal consultations will likely result
in only discretionary conservation recommendations on these SWA lands,
we believe there is an extremely low probability of mandatory elements
(i.e., reasonable and prudent alternatives) arising from formal section
7 consultations that include consideration of designated southwestern
willow flycatcher critical habitat.
The environmental assessment found that minor changes through
section 7 consultation may occur in the form of additional
discretionary conservation recommendations to reduce impacts to the
primary constituent elements. For activities that SWAs are anticipated
to engage in, those are expected to primarily be projects focused on
habitat restoration, protection, and fire management. No formal
consultation for habitat restoration has occurred on SWAs. Both
restoration and fire management activities were anticipated in the
environmental assessment to possibly have short-term adverse impacts to
PCEs, but long-term beneficial effects from protections and improvement
of habitat quality, quantity, and persistence. However, as discussed
above, consultations on these activities would be similar to existing
conditions, where consultations already address potential affects to
the southwestern willow flycatcher because these river segments are
occupied by nesting and migrating southwestern willow flycatchers. The
outcome of the section 7 consultations on these SWAs may not be
materially different with designation of critical habitat compared to
the listing of the species alone due to the threshold for reaching
destruction or adverse modification on proposed critical habitat.
Moreover, we note that while additional conservation recommendations
may result for projects of this nature, they would be discretionary on
the part of the Federal agency.
(2) Benefits of Exclusion
The benefits of excluding SWAs include a reduction in
administrative costs associated with engaging in section 7
consultations for critical habitat. Administrative costs include
additional time spent in meetings and preparing letters, and in the
case of biological assessments and informal and formal consultations,
the development of those portions of these documents that specifically
address the critical habitat designation. SWA and FWS staff can, more
appropriately, use these limited funds toward continuing to manage and
improve SWA lands for their stated purpose, wildlife conservation (and
southwestern willow flycatcher conservation). In the future, SWAs will
likely engage in low effort informal section 7 consultations
periodically, and less frequently formal consultations, to address
impacts of activities on the southwestern willow flycatcher (primarily
those associated with habitat restoration, protection, and fire
management). Potential project modifications are likely to be minimal,
given the beneficial nature of the SWA activities and projects.
(3) Benefits of Exclusion Outweigh Benefits of Inclusion
In summary, we believe that the benefits of excluding these SWAs
from the designation of critical habitat for the southwestern willow
flycatcher outweigh the benefits of including them in critical habitat.
We find that including these SWAs would result in very minimal, if any
additional benefits to the southwestern willow flycatcher, as explained
above. Because these areas are being managed by SWA staff familiar with
wildlife-related issues, there is no reason to believe that the
designation would result in an increased education benefit to land
managers. Including SWAs in the designation could require some
additional administrative effort and cost during the section 7
consultation process. Although the additional effort to consider and
analyze the affects of various projects on critical habitat may not be
substantial, however, it would require the SWA to use limited
additional resources that may otherwise be used towards beneficial
projects for wildlife (and the southwestern willow flycatcher).
We also find that the exclusion of these SWAs will not lead to the
extinction of the southwestern willow flycatcher, nor hinder its
recovery because these lands are specifically managed for the
protection of wildlife and there is an emphasis at each SWA to protect
and enhance habitat specifically for the southwestern willow
flycatcher.
Federal Wildlife Conservation Areas
Kern Management Unit, CA
Sprague Ranch
Section 4(b)(2) of the Act requires us to consider other relevant
impacts, in addition to economic impacts, of designating critical
habitat. The Sprague Ranch included in the Kern Management Unit
warrants exclusion from the final designation of critical habitat under
section 4(b)(2) of the Act because we have determined that the benefits
of excluding Sprague Ranch from southwestern willow flycatcher critical
habitat designation will outweigh the benefits of including it in the
final designation based on the long-term protections afforded for
southwestern willow flycatcher habitat. The following represents our
rationale for excluding the Sprague Ranch from the final designated
critical habitat for the southwestern willow flycatcher in the Kern
Management Unit.
The Sprague Ranch is an approximately 1,003 ha (2,479 ac) parcel
which includes approximately 395 ha (975 ac) of floodplain located
along the south fork of the Kern River. The Sprague Ranch was purchased
by the U.S. Army Corps of Engineers (Corps) as a result of biological
opinions for the long-term operation of Lake Isabella Dam and Reservoir
(Service File Nos. 1-1-96-F-27; 1-1-99-F-216; and 1-1-05-F-0067)
specifically to provide habitat and conservation for the southwestern
willow flycatcher. During the periods of time flycatcher habitat is not
available as a result of short-term inundation from Isabella Dam
operations, habitat at the Sprague Ranch is expected to provide habitat
for the flycatcher. The dominant vegetation in the Kern Management Unit
is mature willows (Salix sp.) and Fremont cottonwood. Other plant
communities of the Kern Management Unit include open water, wet meadow,
and riparian uplands.
As a result of the expertise of the National Audubon Society
(Audubon) and the California Department of Fish and Game (CDFG) in
management of flycatcher habitat on adjacent and
[[Page 60944]]
nearby properties along the Kern River, management of the Sprague Ranch
is a joint venture between these two parties and the Corps. The Sprague
Ranch is located immediately north and adjacent to the Kern River
Preserve (KRP), which is owned and operated by Audubon, and shares a
common border with the KRP of over 4.8 km (3 mi). The CDFG manages the
Canebrake Preserve located upstream of the critical habitat
designation.
The southwestern willow flycatcher occurs throughout the Kern
Management Unit, which includes portions of the Sprague Ranch. The
Sprague Ranch contains existing riparian forest that can support and
maintain nesting territories and migrating and dispersing southwestern
willow flycatcher. But other portions of the Ranch are believed to
require restoration and management in order become nesting flycatcher
habitat. Activities such as cowbird trapping, exotic vegetation
control, and native tree plantings are other management activities
expected to occur. The Ranch is currently being managed in accordance
with the terms and conditions of the biological opinions (cited above)
specifically for the benefit of the southwestern willow flycatcher.
(1) Benefits of Inclusion
We believe that there is minimal benefit from designating critical
habitat for the southwestern willow flycatcher within the Sprague Ranch
because, as explained above, these lands are already managed for the
conservation of flycatcher.
As stated in the environmental assessment, the primary conservation
value of the proposed critical habitat segments is to sustain existing
populations. The threshold for reaching destruction or adverse
modification on the Sprague Ranch property would likely require a
reduction in the capability of the habitat to sustain existing
populations. Given that these lands are managed specifically for the
benefit of the flycatcher, it is highly unlikely that projects would be
considered that would result in a depreciable diminishment or long-term
reduction of the capability of the habitat to sustain existing
populations. To the contrary, activities occurring on these lands will
provide benefits to the flycatcher by restoring, improving, and
protecting its habitat.
As described above, the Sprague Ranch may have additional
conservation value above sustaining existing populations, because it is
being managed to not only maintain existing habitat, but also to
improve, protect, and possibly expand upon the amount of nesting
habitat that would provide for growth of existing populations.
Expansion of existing populations in these areas would be an element of
recovering the southwestern willow flycatcher. Accordingly, and as
further discussed above in the ``General Principles of Section 7
Consultations Used in the 4(b)(2) Balancing Process'' section, through
section 7 consultations that may occur, some benefit may incur through
the adverse modification standard and whether or not a proposed
activity results in a reduction in the suitability of the habitat to
support expansion of existing populations. However, because formal
consultations will likely result in only discretionary conservation
recommendations (i.e., adverse modification threshold is not likely to
be reached), we believe there is an extremely low probability of
mandatory elements (i.e., reasonable and prudent alternatives) arising
from formal section 7 consultations that include consideration of
designated southwestern willow flycatcher critical habitat. As
mentioned above, this property was purchased specifically for the
southwestern willow flycatcher, therefore, we do not believe it is
likely that actions will be proposed that would be counter to the
purpose of this habitat and result in adverse modification, using a
conservation standard based on the Ninth Circuit Court's decision in
Gifford Pinchot.
We believe the conservation measures for the flycatcher that are
occurring or will be used in the future on the Sprague Ranch (i.e.,
demographic surveys, cowbird trapping, non-native vegetation removal,
livestock exclusion, hydrologic restoration, planting of native
vegetation, monitoring, and reporting) provide as much, and possibly
more benefit than would be achieved through section 7 consultations
involving consideration of critical habitat. This is because management
that is occurring or that is planning to occur will be the same
activities which would be implemented in order to maintain or restore
flycatcher habitat.
As discussed in the ``Educational Benefits of Critical Habitat''
section above, we believe that there would be little additional
informational benefit gained from including these portions of the
Sprague Ranch within the designation because this area was included in
the proposed rule as having essential flycatcher habitat. Further, the
Kern River in this area was previously designated as critical habitat,
numerous public meetings and hearings have occurred in Lake Isabella
concerning the flycatcher and the designation of its critical habitat,
and the population of flycatchers along the Kern River is one of the
most studied throughout the subspecies range due to its proximity to
the Kern River Reserve and an on-going research and monitoring project
for the flycatcher. Consequently, we believe that the informational
benefits that could be provided through a designation of critical
habitat in this area are already provided because of the rationale
mentioned above and the fact that this property was purchased
specifically for the conservation of the southwestern willow
flycatcher. Additionally, since this area is already being jointly
managed by Federal, State, and private entities for the benefit of the
flycatcher, its importance to flycatcher conservation is already well
established.
(2) Benefits of Exclusion
The southwestern willow flycatcher occurs on public and private
lands throughout the Kern Management Unit. Proactive voluntary
conservation efforts by private or non-Federal entities are necessary
to prevent the extinction and promote the recovery of the southwestern
willow flycatcher in the Kern Management Unit.
We have determined that the southwestern willow flycatcher using
habitat located within properties covered by management plans or
conservation strategies that protect or enhance the conservation of the
subspecies will benefit substantially from voluntary landowner
management actions due to an enhancement and creation of riparian and
wetland habitat and a reduction in risk of loss of riparian habitat.
The conservation benefits of critical habitat are primarily regulatory
or prohibitive in nature. Where consistent with the discretion provided
by the Act, the Service believes it is necessary to implement policies
that provide positive incentives to private landowners to voluntarily
conserve natural resources and that remove or reduce disincentives to
conservation (Wilcove et al. 1996). Thus, we believe it is essential
for the recovery of the southwestern willow flycatcher to build on
continued conservation activities such as these with proven partners,
and to provide positive incentives for other private landowners who
might be considering implementing voluntary conservation activities but
have concerns about incurring incidental regulatory or economic
impacts.
The Sprague Ranch is jointly managed by the Corps, CDFG, and
Audubon in accordance with the terms and conditions of the Biological
Opinions
[[Page 60945]]
which require actions for the conservation of flycatchers, including:
demographic surveys, cowbird trapping, non-native vegetation removal,
livestock exclusion, hydrologic restoration, planting of native
vegetation, noxious weed control activities, flood irrigating low lying
areas, upgrading of fencing, upgrading irrigation systems, monitoring,
and reporting. These measures will assist in restoration and
conservation of southwestern willow flycatcher habitat. Two habitat
assessments have been performed on the property which concluded that
approximately 168 ha (414 ac) of land are currently available as
potential breeding habitat through restoration and management, and
another approximately 227 ha (561 ac) were identified as potentially
restorable to support a mosaic of habitat that could be used by
southwestern willow flycatchers during post-breeding dispersal and
migration. By using the available water supply and distribution system,
modifying or eliminating current grazing practices, removing invasive
non-native plant species, and planting riparian vegetation, the Sprague
Ranch has the potential for restoration of approximately 395 ha (975
ac) into a mosaic of habitat similar to the KRP and the South Fork
Wildlife Area (SFWA). In addition, the water supply and distribution
system of the Sprague Ranch has a beneficial effect on the hydrology
that supports the riparian habitats within the KRP and the SFWA.
Therefore, while the Sprague Ranch possesses habitat for the
flycatcher, future management of flycatcher habitat is needed in order
to restore this property to its full potential for the bird. The
implementation of these actions or others for the flycatcher may
require further section 7 consultation between the Corps and the
Service. As a result, there would be an additional use of time and
money by the Corps and the Service, or possibly our non-Federal
partners (Audubon and CDFG for the Corps) to develop sections of
biological assessments and analyses in biological opinions specific to
a critical habitat designation. These costs, added to already limited
funds for the Corps for wildlife habitat restoration and maintenance,
would be an additional time and cost burden above that which would be
required for section 7 consultations without critical habitat. It could
also cause delays to implementing beneficial actions for the
flycatcher. If due to those limited budgets, the cost of developing
these assessments are passed to our non-Federal partners, then this
could be an even greater burden due to the more limited funding and
personnel of Audubon and the State. The result could, in the most
extreme cases, prevent or severely delay implementation of needed
management actions. The use of time and effort on evaluation of
projects on critical habitat could take away time, money, and effort by
our non-Federal partners that could not only be used for implementing
beneficial flycatcher management on the Sprague Ranch, but it could
extend to other properties they own along the Kern River important to
the flycatcher. Therefore, we believe there would be a benefit to
exclusion of Sprague Ranch which could be of greater significance if
passed on to our non-Federal partners if consultation was needed in
order to implement beneficial projects for the flycatcher.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations we have determined that the
benefits of excluding the Sprague Ranch from critical habitat in the
Kern Management Unit outweigh the benefits of including it as critical
habitat for the southwestern willow flycatcher.
The Sprague Ranch was purchased specifically for the southwestern
willow flycatcher and is jointly managed by the Corps, CDFG, and
Audubon in accordance with the terms and conditions of the Biological
Opinions. Therefore, the strategy of the managing partners is to
implement conservation and management measures to achieve conservation
goals for the southwestern willow flycatcher. There are little to no
additional educational or regulatory benefits of including these lands
as critical habitat. The Kern River is well known by the public and
managing agencies for its value and importance to the southwestern
willow flycatcher. Likewise, there will be little additional Federal
regulatory benefit to the species because (a) there is a low likelihood
that the Sprague Ranch will be negatively affected to any significant
degree by Federal activities that were not consulted on in the existing
Biological Opinions pursuant to section 7 consultation requirements,
and (b) the Sprague Ranch is being managed in accordance with the terms
and conditions of the Biological Opinions and we believe that based on
ongoing management activities there would be no additional requirements
pursuant to a consultation that addresses critical habitat. We believe
there could be a small additional administrative cost as a result of
designation of critical habitat to the Service, and a cost that could
be more significant to the Corps and potentially non-Federal partners.
If the Corps administrative costs are passed on to our non-Federal
partners to conduct assessments and analyses, this could delay, or in
worse case scenario prevent important management from being implemented
on the Sprague Ranch or other properties managed for riparian values
along the Kern River.
We believe that exclusion of these lands will not result in the
extinction of the subspecies because the flycatcher already occupies
this segment of the Kern River, including the Sprague Ranch. Actions
which might adversely affect the subspecies are expected to have a
Federal nexus, and would thus undergo a section 7 consultation with the
Service. The jeopardy standard of section 7 and routine implementation
of habitat preservation through the section 7 process provide assurance
that the species will not go extinct. In addition, the species is
protected from take under section 9 of the Act. The exclusion leaves
these protections unchanged from those that would exist if the excluded
areas were designated as critical habitat.
Critical habitat is being designated for the subspecies in other
areas that will be accorded the protection from adverse modification by
Federal actions using the conservation standard based on the Ninth
Circuit decision in Gifford Pinchot. Additionally, the subspecies
occurs on lands protected and managed either explicitly for the
subspecies, or indirectly through more general objectives to protect
natural habitat values. This provides protection from extinction while
conservation measures are being implemented. The subspecies also occurs
on lands managed to protect and enhance wetland values under the
Wetlands Reserve Program of the NRCS.
In conclusion, we find that the exclusion of critical habitat on
the Sprague Ranch would most likely have a net positive conservation
effect on the recovery and conservation of the southwestern willow
flycatcher when compared to the positive conservation effects of a
critical habitat designation. As described above, the overall benefits
to these species of a critical habitat designation for these properties
are relatively small. In contrast, we believe that this exclusion will
enhance our existing partnership with the Corps, CDFG, and Audubon, and
it will set a positive example and could provide positive incentives to
other non-Federal landowners who may be considering implementing
voluntary conservation activities on their lands. We conclude there is
a higher likelihood of beneficial conservation activities occurring in
these and other areas for the flycatcher
[[Page 60946]]
without designated critical habitat than there would be with designated
critical habitat on the Sprague Ranch.
South Fork Kern River Wildlife Area
Section 4(b)(2) of the Act requires us to consider other relevant
impacts, in addition to economic impacts, of designating critical
habitat. The South Fork Wildlife Area (SFWA) in the Kern Management
Unit warrants exclusion from the final designation of critical habitat
under Section 4(b)(2) of the Act because we have determined that the
benefits of excluding the SFWA from southwestern willow flycatcher
critical habitat designation will outweigh the benefits of including it
in the final designation based on the special management considerations
and protections afforded for southwestern willow flycatcher habitat.
The SFWA is an approximately 514 ha (1,270 ac) parcel of mature willow-
cottonwood riparian forest located along the south fork of the Kern
River, west of historic Patterson Lane, including a portion of upper
Lake Isabella. The SFWA is jointly managed by the Corps and the U.S.
Forest Service (Forest Service). Isabella Dam and southwestern willow
flycatcher habitat in the SFWA is managed as a result of long-term
biological opinions for Corps operation of Lake Isabella Dam and
Reservoir (Service File Nos. 1-1-96-F-27; 1-1-96-F-150; 1-1-99-F-216;
and 1-1-05-F-0067) and on-the-ground management by the Forest Service.
These opinions resulted in the long-term management of Lake Isabella
Dam that maintains the dynamic processes to establish flycatcher
habitat over the long-term and resulted in the acquisition of the
Sprague Ranch (immediately upstream of the SFWA) to compensate for
short-term losses in habitat, and management of SFWA for southwestern
willow flycatchers. The following represents our rationale for
excluding the SFWA from the final designated critical habitat for the
southwestern willow flycatcher in the Kern Management Unit.
The management of Lake Isabella Dam is similar to other reservoirs
(i.e., Roosevelt, Horseshoe, Mead) that develop nesting southwestern
willow flycatcher habitat. As a result of fluctuating lake elevations,
the broad floodplain of the upper portion of the lake bottom is
periodically covered in water, which once the water recedes, provides
conditions for the germination and development of large patches of
riparian habitat for the flycatcher. Periodic inundation is
subsequently needed in order to prevent the drying and loss of habitat
so that habitat required by nesting flycatcher can regenerate and
persist over the long-term.
Lake Isabella Dam and Reservoir operations that periodically
inundate the SFWA are managed by the Corps in accordance with the terms
and conditions of the Biological Opinions which require actions for the
conservation of flycatchers, including: Long-term studies of flycatcher
habitat and demographics; implementation and monitoring of a cowbird
trapping program; a nest moving protocol to prevent inundation of nests
during high water events; measures to control water craft in
coordination with the Forest Service; and the acquisition of 465 ha
(1,150 ac) of land to compensate for incidental take resulting from the
periodic inundation of the SFWA. To date, the Corps has acquired 415 ha
(1,025 ac) of land to satisfy the conditions of the Biological
Opinions. In the most recent amendment to the Biological Opinions, the
Corps and the Service have committed to work together on acquiring the
last 51 ha (125 ac) within five years of the date of the amendment
(Service File No. 1-1-05-F-0067). Funding for the implementation of
these measures is provided by the Corps in accordance with terms and
conditions of the Biological Opinions.
The SFWA is managed by the Forest Service within Lake Isabella
(after the water recedes) and along the Kern River immediately
upstream. Through informal consultation with the Forest Service,
measures for the conservation of flycatchers have been implemented,
including: restricting the speed of water craft to 8 km per hour (5 mi
per hour) within 30.5 m (100 ft) of the SFWA; prohibition of overnight
camping, motorized vehicles, and campfires in the South Fork Wildlife
Area. The SFWA is fenced, and the fencing is maintained to enforce the
exclusion of unauthorized uses. Grazing is also excluded from the SFWA.
(1) Benefits of Inclusion
We believe that there is minimal benefit from designating critical
habitat for the southwestern willow flycatcher within portions of the
SFWA within the Kern Management Unit because, as explained above, these
lands are already managed for the conservation of flycatcher.
As stated in the environmental assessment, the primary conservation
value of the proposed critical habitat segments is to sustain existing
populations. The threshold for reaching destruction or adverse
modification on the SFWA would likely require a reduction in the
capability of the habitat to sustain existing populations. Because
Isabella Dam operations provide the dynamics needed to sustain habitat
over the long-term and the Forest manages the land for the benefit of
wildlife and the flycatcher, it is highly unlikely that projects would
be considered for this area that would result in a depreciable
diminishment or long-term reduction of the capability of the habitat to
sustain existing flycatcher populations. Similar to other lakes, one of
the primary purposes of the conservation space of the lake bottom is to
store water for delivery downstream. As a result of the importance of
this space for temporary water storage, there is little to no reason to
believe that within the lake bottom there would be any permanent
development or alteration that would eliminate or significantly reduce
the amount of open space where flycatcher habitat develops and
persists. Concurrently, Forest Service management of cattle grazing
activities and recreation through fencing and other restrictions has
helped foster the development and maintenance of flycatcher habitat
within the SFWA. As a result, dam operations and land management and
long-term commitments through section 7 consultations have and will
provide benefits to the flycatcher within the SFWA.
As described above, the SFWA lands proposed for critical habitat
may have additional conservation value above sustaining existing
populations, because they are managing these lands to improve, protect,
and possibly expand upon the amount of nesting habitat that would
provide for growth of existing populations. Expansion of existing
populations in these areas would be an element of recovering the
southwestern willow flycatcher. Accordingly, and as further discussed
above in the ``General Principles of Section 7 Consultations Used in
the 4(b)(2) Balancing Process'' section, through section 7
consultations that may occur, some benefit may incur through the
adverse modification standard and whether or not the activity results
in a reduction in the suitability of the habitat to support expansion
of existing populations. However, because formal consultations will
likely result in only discretionary conservation recommendations (i.e.,
adverse modification threshold is not likely to be reached), we believe
there is an extremely low probability of mandatory elements (i.e.,
reasonable and prudent alternatives) arising from formal section 7
consultations that include consideration of designated
[[Page 60947]]
southwestern willow flycatcher critical habitat.
We believe the operation of Isabella Dam and current on-the-ground
conservation measures being conducted for the flycatcher on the SWFA
that include field studies, management of recreational uses, grazing
exclusion, acquisition of upstream areas, fluctuating dam operations,
and efforts to reduce predation and protection of nestlings from
inundation provides as much as would be achieved through section 7
consultations involving consideration of critical habitat, using a
conservation standard based on the Ninth Circuit Court's decision in
Gifford Pinchot.
As discussed in the ``Educational Benefits of Critical Habitat''
section above, we believe that there would be little additional
informational benefit gained from including these portions of the SFWA
within the designation because this area is well known for its value to
southwestern willow flycatcher by managing agencies and the public.
Additionally, since this area is already being federally managed for
the benefit of the flycatcher its importance to flycatcher conservation
is already well established.
(2) Benefits of Exclusion
The implementation of management actions for the southwestern
willow flycatcher and its habitat within the SFWA may require further
section 7 consultation between the Corps, the Forest Service, and the
Service. As a result, there would be an additional use of time and
money by each agency to develop sections of biological assessments and
analyses in biological opinions to address a critical habitat
designation. These costs would be an additional time and cost burden
above that which would be required for section 7 consultations without
critical habitat. It could cause delays to implementing beneficial
management actions for the flycatcher. The use of time and effort on
evaluation of projects on critical habitat could take away time, money,
and effort by these agencies to implement beneficial flycatcher
management on the SFWA or other areas where management is needed for
the flycatcher such as the Sprague Ranch or other nearby Forest Service
lands. Therefore, a benefit of excluding the SFWA from critical habitat
includes some reduction in administrative costs associated with
engaging in the critical habitat portion of section 7 consultations.
Administrative costs include time spent in meetings, preparing letters
and biological assessments, and in the case of formal consultations,
the development of the critical habitat component of a biological
opinion. The implementation of long-term management activities by Corps
and Forest Service at SFWA has and will continue to help generate
important status and trend information for flycatcher recovery within
the Kern Management Unit.
The exclusion of Lake Isabella from critical habitat may facilitate
other cooperative conservation activities with other similarly situated
dam operators or landowners. Throughout the comment period and during
public hearings, we heard from many local residents who were very
concerned with any possible restrictions to Lake Isabella lake levels
as a result of a critical habitat designation. While Isabella is
operated by the Corps and the land is managed by the Forest Service,
the recreation associated with the lake was a significant concern for
the community. Continued cooperative relations with Corps, Forest
Service, and non-Federal stakeholders associated with recreation at
Lake Isabella and local governments can be expected to influence other
future partners and lead to greater conservation than might be achieved
through multiple site-by-site, project-by-project, section 7
consultations. The benefits of excluding lands within the SFWA from
critical habitat designation include recognizing the value of
conservation benefits associated with long-term management actions
being implemented for the flycatcher and demonstrating to the Corps,
Forest Service, Lake Isabella community, local governments,
stakeholders, and landowners along the Kern River the benefits
associated with implementing conservation activities.
In contrast, failure to exclude the SFWA could be a disincentive
for other entities contemplating partnerships with the Service, as it
would be perceived as a way for the Service to impose additional
regulatory burdens once conservation strategies have already been
agreed to. As noted above, while long-term management of the SFWA
management is conducted by the Corps and the Forest Service, Lake
Isabella was of extreme importance and interest to local non-Federal
stakeholders. The scoping meetings held at Lake Isabella, arguably the
smallest community visited across six states, generated the largest
attendance (hundreds of private citizens concerned over the possible
designation of the area as critical habitat). Excluding this area from
critical habitat would help foster a collaborative relationship with
the Corps, Forest Service, stakeholders, landowners, and local
governments associated with Lake Isabella and the Kern River. We
believe this collaboration makes a difference in our ability to form
partnerships with others. Concerns over perceived additional regulation
imposed by critical habitat when long-term conservation strategies are
being implemented harms collaborative relationships and can lead to
distrust. Our experience has demonstrated that successful completion of
conservation efforts such as HCPs, conservation easements, or the
unique long-term section 7 consultation on Lake Isabella dam operations
can result in the development of other conservation efforts and HCPs
with other landowners.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, we have determined that the
benefits of excluding the SFWA from critical habitat for the
southwestern willow flycatcher in the Kern Management Unit outweigh the
benefits of inclusion.
The SFWA is currently operating under the terms and conditions of
the Biological Opinions issued to the Corps and management agreed upon
through informal consultation with the Forest Service. These long-term
management commitments implement conservation measures and achieve
important conservation goals through information obtained by field
studies, management of recreational uses, grazing exclusion,
acquisition and management of upstream acreage, and efforts to reduce
predation and inundation of nests for the benefit of the southwestern
willow flycatcher.
The Service believes the additional educational and regulatory
benefits of including the SFWA as critical habitat is relatively small
to non-existent. The local community and managing agencies are well
aware of the importance of Lake Isabella and the SFWA for southwestern
willow flycatchers due to the notoriety consultation for Isabella Dam
operation elicited in the community, concern by managing agencies, and
awareness raised during the NEPA scoping process for this designation.
The Service anticipates that the conservation strategies for SFWA will
continue to be implemented in the future, and that the funding for
these activities will be provided in accordance with the terms and
conditions associated with the Biological Opinions under section 7 of
the Act. We anticipate there will be little additional Federal
regulatory benefit to the species because (a) there is a low likelihood
that the SFWA will be negatively affected to any significant degree by
Federal activities that were
[[Page 60948]]
not consulted on in the existing Biological Opinions pursuant to
section 7 consultation requirements, and (b) we believe that based on
past and ongoing Forest Service management activities there would be no
additional requirements pursuant to a consultation that addresses
critical habitat. We also believe that due to the purpose of the
conservation space of Lake Isabella for water storage and delivery,
there is no reason to expect that this area will be developed or
altered in a way that would prevent the SFWA within Lake Isabella from
being capable of supporting southwestern willow flycatcher habitat.
While management of Isabella is accomplished through Federal agencies,
the benefits of excluding lands within the SFWA from critical habitat
designation include demonstrating to the concerned Lake Isabella
community, local governments, stakeholders, and landowners along the
Kern River the benefits associated with implementing conservation
activities.
We believe that exclusion of these lands will not result in the
extinction of the southwestern willow flycatcher as the SFWA is
occupied by the southwestern willow flycatcher. Actions which might
adversely affect the species are expected to have a Federal nexus, and
regardless of a critical habitat designation, would undergo a section 7
consultation with the Service. The jeopardy standard of section 7 and
routine implementation of habitat preservation through the section 7
process provides assurance that the species will not go extinct. In
addition, the species is protected from incidental take under section 9
of the Act. The exclusion leaves these protections unchanged from those
that would exist if the SFWA was designated as critical habitat.
Critical habitat is being designated for the subspecies in other
areas, including the Kern River adjacent to the SFWA that will be
accorded protection from adverse modification by Federal actions using
the conservation standard based on the Ninth Circuit decision in
Gifford Pinchot. Additionally, the subspecies occurs on lands protected
and managed either explicitly for the species, or indirectly through
more general objectives to protect natural habitat values. This
provides protection from extinction while conservation measures are
being implemented. The subspecies also occurs on lands managed to
protect and enhance wetland values under the Wetlands Reserve Program
of the NRCS.
In conclusion, we find that the benefits of excluding the SFWA
outweigh the benefits of inclusion, and this exclusion will not result
in extinction of the southwestern willow flycatcher. We believe the
exclusion of critical habitat on the SFWA would most likely have a net
positive conservation effect on the recovery and conservation of the
southwestern willow flycatcher when compared to the positive
conservation effects of a critical habitat designation. As described
above, the overall benefits to the flycatcher of a critical habitat
designation for these properties are relatively small. In contrast, we
believe that this exclusion will enhance our existing partnership with
the Corps, Forest Service, and local community, and due to the
attention this generated within the local community, set a positive
example that could provide positive incentives to other non-Federal
landowners who may be considering implementing voluntary conservation
activities on their lands. We conclude there is a higher likelihood of
beneficial conservation activities occurring in these and other areas
for the southwestern willow flycatcher without designated critical
habitat than there would be with designated critical habitat on the
SFWA.
Relationship of Critical Habitat to National Wildlife Refuge Lands--
Exclusions Under Section 4(b)(2) of the Act
We have determined that areas essential to the conservation of the
southwestern willow flycatcher include the following National Wildlife
Refuges (NWR): Bill Williams NWR, Parker, AZ; Cibola NWR, Blythe, AZ;
Imperial NWR, Yuma, AZ; Havasu NWR, Needles, CA; Alamosa/Monte Vista
NWR, Alamosa, CO; Bosque del Apache and Sevilleta NWRs, Socorro, NM;
and Pahranagat NWR, Alamo, NV. All of these refuges will be developing
or in some cases (Sevilleta and Alamosa NWRs) have developed and
completed Comprehensive Conservation Plans (CCPs) that provide the
framework for protection and management of all trust resources,
including federally listed species and sensitive natural habitats.
These plans, and the management actions undertaken to implement them,
will have to undergo (or have undergone) review and consultation under
section 7 of the Act and evaluation for their consistency with the
conservation needs of listed species. Those NWRs without approved CCPs
currently have management plans and/or programs in place that provide
conservation benefits for the southwestern willow flycatcher. Their
annual work plans provide the specific tasks associated with
accomplishing the broader Refuge objectives of wildlife habitat
management. Some of these management plans have also been reviewed by
the public under NEPA and consulted upon under section 7 of the Act.
For example, the Lower Colorado River National Wildlife Refuges (Bill
Williams, Havasu, Cibola, and Imperial NWRs) currently operate under a
Comprehensive Management Plan (USFWS 1994) that has been evaluated
under NEPA and section 7 of the Act. We believe that there is minimal
benefit from designating critical habitat for the southwestern willow
flycatcher within NWR lands because these lands are protected areas for
wildlife, and are currently managed for the conservation of wildlife,
including threatened and endangered species, specifically the
southwestern willow flycatcher. Below we first provide a description of
the special management being provided by the NWR lands within the
proposed designation, followed by a 4(b)(2) analysis that weighs the
benefits of excluding versus those of including these lands within the
final designation.
Bill Williams Management Unit, AZ
Bill Williams NWR
The Bill Williams NWR consists of 2,471 ha (6,105 ac) (USFWS 1994),
and was originally established on January 22, 1941, concurrently with
the Havasu NWR by Executive Order 8647. Some of the goals included in
the lower Colorado River refuges (Havasu, Bill Williams, Cibola, and
Imperial NWRs) Comprehensive Management Plan (1994-2014) (USFWS 1994)
are to: ``* * * restore and maintain the natural diversity * * *''; ``*
* * achieve threatened and endangered species recovery * * *''; ``* * *
revegetate substantial amounts of habitat with native mixes of
vegetation leading to biological diversity''; ``* * * enhance use of
Colorado River water and protect existing water rights holdings * *
*''; ``* * * ensure only compatible and appropriate activities occur *
* * and * * * regulate all activities * * * that are potentially
harmful to refuge resources''; and to ``* * * effect improvements to
funding and staffing that will result in long lasting enhancements to
habitat and wildlife resources * * * leading to achievement of the
goals of this plan and the goals of the National Wildlife Refuge
System.''
The Bill Williams NWR Annual Habitat Work Plan for 2004-2005
described the Executive Order establishing the area ``* * * as a refuge
and breeding ground for migratory birds and other wildlife.'' This
refuge includes the largest flood regenerated riparian forest on the
Lower Colorado
[[Page 60949]]
River of approximately 931 ha (2300 ac) of cottonwood, willow,
mesquite, and salt cedar woodlands and terrace shrublands. From 1994 to
2003, 1 to 15 flycatcher territories were detected on the refuge, with
the largest number of territories detected in 2002 (USGS 2004). Migrant
willow flycatchers have also been detected (Koronkiewicz et al. 2004).
Their habitat goals are to protect, maintain, and if possible, enhance
habitats, particularly those for neotropical migrants, endangered
species, and other species of concern. This is being done by monitoring
the location of flycatchers and other sensitive species, and protecting
habitat from: wildfire, impacts of recreation, and exotic weeds such as
Fountain Grass and Arundo spp.
The effort by the refuge to maintain and improve the abundance and
quality of riparian vegetation provides a conservation benefit to the
flycatcher. As a result of the refuge's effort and long-term commitment
to provide a conservation benefit to the southwestern willow
flycatcher, we believe these protections and assurances warrant
exclusion from flycatcher critical habitat.
Hoover to Parker Management Unit, AZ/CA
Havasu NWR
The Havasu NWR was established by Executive Order 8647 on January
22, 1941, ``* * * as a refuge and breeding ground for migratory birds
and other wildlife.'' It consists of 15,551 ha (38,427 ac) (USFWS
1994). Some of the goals included in the lower Colorado River refuges
(Havasu, Bill Williams, Cibola, and Imperial NWRs) Comprehensive
Management Plan (1994-2014) (USFWS 1994) are to: ``* * * restore and
maintain the natural diversity * * *''; ``* * * achieve threatened and
endangered species recovery * * *''; ``* * * revegetate substantial
amounts of habitat with native mixes of vegetation leading to
biological diversity*rdquo;; ``* * * enhance use of Colorado River
water and protect existing water rights holdings * * *''; ``* * *
ensure only compatible and appropriate activities occur * * * and * * *
regulate all activities * * * that are potentially harmful to refuge
resources''; and to ``* * * effect improvements to funding and staffing
that will result in long lasting enhancements to habitat and wildlife
resources * * * leading to achievement of the goals of this plan and
the goals of the National Wildlife Refuge System.'' In addition,
flycatcher management on this refuge will work in conjunction with
additional flycatcher management throughout the LCR MSCP (see section
describing Relationship of Critical Habitat to Approved Habitat
Conservation Plans--Exclusions Under Section 4(b)(2) of the Act).
The Havasu NWR Annual Habitat Work Plan for 2004-2005 identifies
specific areas where habitat for the southwestern willow flycatcher
will be maintained, improved, protected, and managed. Overall, the
refuge manages for a variety of habitat types that provide locations
for waterfowl, wading birds, passerines, etc. Because southwestern
willow flycatchers are a keystone woody riparian species, management
and improvement of habitat for the flycatcher (and all riparian
passerine species) is a specific goal of the refuge. Between 2 and 20
flycatcher territories have been detected on the refuge between 1995
and 2003 (USGS 2004), as well as migrating southwestern willow
flycatchers (Koronkiewicz et al. 2004). A high of 20 territories were
detected in 2002.
Riparian habitat restoration and maintenance projects are underway
and will continue in order to provide a conservation benefit for the
flycatcher. For example, approximately 40 ha (100 ac) in the Beal Unit
and 20 ha (50 ac) in the Pintail Unit are being restored and managed
for woody riparian vegetation that can be used by migrant and possibly
nesting flycatchers. During the 2004 fiscal year, a total of 8,765
cottonwoods, 4,800 Goodding's willows, 4,065 Coyote willow, and 940
mesquites were planted in the Beal Unit. In the Pintail Unit, during
the 2004 fiscal year, 1,650 cottonwoods and 1,175 willows were planted.
In the 1,619 ha (4,000 ac) Topock Unit, habitat exists and is being
managed for nesting flycatchers and wading birds, and the 202 ha (500
ac) Whiskey Slough Unit is also targeted for management for
southwestern willow flycatchers.
In addition to the riparian restoration efforts occurring on the
refuge, additional management occurs in order to improve habitat
quality and persistence. Specific water management to mimic the natural
hydrology is needed for woody vegetation and to maintain conditions and
prey for nesting flycatchers. Management of feral pigs that can harm
and destroy vegetation is needed to protect habitat. Additionally,
management of exotic woody and weed species such as salt cedar and
Johnson grass occurs to reduce risks of fire in riparian areas.
The effort by the refuge to maintain and improve the abundance,
distribution, and quality of riparian vegetation provides a
conservation benefit to the flycatcher. Additional water management is
an essential component to the success of plantings and existing habitat
conditions favored by the flycatcher. Protecting habitat by reducing
the reducing the risk of fire and destruction by feral pigs also
provides a conservation benefit. As a result of the refuge's effort and
long-term commitment to provide a conservation benefit to the
southwestern willow flycatcher, we believe these protections and
assurances warrant exclusion from flycatcher critical habitat.
Parker to Southerly International Border Management Unit, AZ/CA
Cibola NWR
The Cibola NWR consists of approximately 6,745 ha (16,667 ac)
(USFWS 1994). Some of the goals included in the lower Colorado River
refuges (Havasu, Bill Williams, Cibola, and Imperial NWRs)
Comprehensive Management Plan (1994-2014) (USFWS 1994) are to: ``* * *
restore and maintain the natural diversity * * * ''; ``* * * achieve
threatened and endangered species recovery * * *''; ``* * * revegetate
substantial amounts of habitat with native mixes of vegetation leading
to biological diversity''; ``* * * enhance use of Colorado River water
and protect existing water rights holdings * * * ''; ``* * * ensure
only compatible and appropriate activities occur * * * and * * *
regulate all activities * * * that are potentially harmful to refuge
resources''; and to ``* * * effect improvements to funding and staffing
that will result in long lasting enhancements to habitat and wildlife
resources * * * leading to achievement of the goals of this plan and
the goals of the National Wildlife Refuge System.'' In addition,
flycatcher management on this refuge will work in conjunction with
additional flycatcher management throughout the LCR MSCP (see section
describing Relationship of Critical Habitat to Approved Habitat
Conservation Plans--Exclusions Under Section 4(b)(2) of the Act).
The Cibola NWR 2004-2005 Annual Habitat Work Plan identifies as its
main objective, the restoration of wetland, riverine, riparian, moist
soil and agricultural habitat in order to maintain the natural
abundance and diversity of native species, habitats and communities
which are found in the Lower Colorado River floodplain (with emphasis
on trust resources, endangered and threatened species, and other
species of concern). As a result, the migratory and nesting habitat of
the
[[Page 60950]]
southwestern willow flycatcher, as well as habitat for other passerine
species is specifically identified as the important habitat to
maintain, preserve, and restore. A single southwestern willow
flycatcher territory has been detected on the refuge (USGS 2004) as
well as migrating willow flycatchers (Koronkiewicz et al. 2004).
The Cibola NWR has specifically identified as a goal, maintaining
existing native riparian woodland and restoring an average of 20 ha (50
ac) annually through seeding and planting native mesquite, cottonwood,
and willow trees, and associated understory plants. Three different
Refuge Management Units that contain approximately 323 ha (800 ac), 6
ha (15 ac), and 40 ha (100 ac) of habitat, are designated for
restoration to native mesquite, cottonwood, and willows.
Previous plantings and habitat maintenance has occurred, which has
resulted in improved habitat conditions for the flycatcher. At one 7 ha
(17.8 ac) field where about 7,100 one gallon cottonwood and willow
trees were planted in 2003, the area has shown extensive use by birds,
including detections of migrant willow flycatchers and yellow-billed
cuckoos.
Protection of existing sites through fire management and
replacement of poor quality salt cedar to less flammable and higher
quality native plant species is occurring as part of the refuge's
restoration efforts. Reducing the amount of unsuitable salt cedar and
replacing it with native mesquite, cottonwoods, and willows, provides
improved habitat value for flycatchers and other passerines and reduces
the risk of wildfire.
The refuge-wide effort to maintain and improve the abundance,
distribution, and quality of riparian vegetation provides a
conservation benefit to the flycatcher. The protection of this habitat
by reducing the risk of fire through management of flammable salt
cedar, also provides a conservation benefit. As a result of Cibola's
refuge-wide effort and long-term commitment to provide a conservation
benefit to the southwestern willow flycatcher by improving the
abundance, distribution, quality, and persistence of native riparian
vegetation for nesting and migrating flycatchers, we believe these
protections and assurances warrant exclusion from flycatcher critical
habitat.
Imperial NWR
The Imperial NWR consists of 10,428 ha (25,768 ac). Some of the
goals included in the lower Colorado River refuges (Havasu, Bill
Williams, Cibola, and Imperial NWRs) Comprehensive Management Plan
(1994-2014) (USFWS 1994) are to: ``* * * restore and maintain the
natural diversity * * *''; ``* * * achieve threatened and endangered
species recovery * * *''; ``* * * revegetate substantial amounts of
habitat with native mixes of vegetation leading to biological
diversity''; ``* * * enhance use of Colorado River water and protect
existing water rights holdings * * *''; ``* * * ensure only compatible
and appropriate activities occur * * * and * * * regulate all
activities * * * that are potentially harmful to refuge resources'';
and to ``* * * effect improvements to funding and staffing that will
result in long lasting enhancements to habitat and wildlife resources *
* * leading to achievement of the goals of this plan and the goals of
the National Wildlife Refuge System.'' In addition, flycatcher
management on this refuge will work in conjunction with additional
flycatcher management throughout the LCR MSCP (see section describing
Relationship of Critical Habitat to Approved Habitat Conservation
Plans--Exclusions Under Section 4(b)(2) of the Act).
The Imperial NWR Annual Habitat Work Plan for 2004-2005 identifies
specific areas where riparian habitat will be maintained, improved,
protected, and managed. Overall, the refuge manages for a variety of
habitat types that provide locations for waterfowl, wading birds,
passerines, etc. Their Work Plan specifically identifies 15 Management
Units (totaling about 648 ha/1600 ac) where habitat for riparian
obligate passerines is a target. Not every hectare/acre of these Units
is dedicated specifically to woody riparian habitat. Restoration and
management of flycatcher habitat include maintenance of areas with
woody riparian vegetation, and restoration and protection through
methods such as planting, salt cedar control, and prescribed burns. The
Backwater Riversedge Management Unit has an additional 2,270 ha (5,609
ac) of salt cedar, willow, remnant cottonwoods, and scattered marshes
for southwestern willow flycatchers. One to five flycatcher territories
were detected for 3 years on the refuge between 1996 and 2003 (USGS
2004), as well as migrating southwestern willow flycatchers
(Koronkiewicz et al. 2004).
The refuge-wide effort to maintain and improve the abundance,
distribution, and quality of riparian vegetation provides a
conservation benefit to the flycatcher. The protection of this habitat
by reducing the risk of wildfire through management of flammable salt
cedar, also provides a conservation benefit. As a result of Imperial's
refuge-wide effort and long-term commitment to provide a conservation
benefit to habitat for nesting and migrating southwestern willow
flycatchers, we believe these protections and assurances warrant
exclusion from flycatcher critical habitat.
Middle Rio Grande Management Unit, NM
Bosque del Apache NWR
The Bosque del Apache NWR consists of 23,117 ha (57,121 ac), of
which approximately 4,856 ha (12,000 ac) occur within the Rio Grande
floodplain. Since 1986, the refuge has been actively restoring riparian
forests and grasslands. In 1999, the refuge expanded its ``place of
use'' increasing the potential for additional riparian habitat to be
restored. Since 1993, migratory and nesting southwestern willow
flycatchers have been annually detected at the refuge with 1 to 5
territories detected (USGS 2004).
The refuge currently manages eight sites for southwestern willow
flycatcher habitat. Within the historic floodplain there is currently
an estimated 32 ha (78 ac) of native-dominated flycatcher habitat, and
within the active floodplain, 23 ha (58 ac) of native-dominated habitat
is estimated to exist. More suitable habitat in non-native and native
vegetation exists.
The refuge is planning to manage seven areas specifically for
southwestern willow flycatcher breeding habitat in the active
floodplain and four areas in the historic floodplain. Combined, these
11 areas total 271 ha (669 ac).
The refuge currently uses a variety of restoration and management
techniques to create, maintain, and protect southwestern willow
flycatcher habitat. Flammable salt cedar is being selectively removed
and replaced with native vegetation and grasslands in order to improve
the quality and abundance of flycatcher habitat. The reduction of
exotic vegetation, increase in native vegetation, and creation of
grassland fire breaks reduces the occurrence and impact of wildfire. In
order to achieve restoration success with native woody riparian
vegetation, water is being applied to restoration sites in order to
mimic the timing of natural hydrograph (the refuge has a license for
12,417 acre feet of water per year). Also, within the active
floodplain, in order to restore/improve channel floodplain connection,
water distribution, channel movement, and sediment transport, banks are
planned
[[Page 60951]]
for de-stabilization as are limited topographic changes to the
floodplain are needed.
The refuge-wide effort to maintain and improve the abundance,
distribution, and quality of riparian vegetation provides a
conservation benefit to the flycatcher. The protection of this habitat
by reducing the risk of fire through management of flammable salt
cedar, also provides a conservation benefit. As a result of Bosque del
Apache's refuge-wide effort and long-term commitment to provide a
conservation benefit to the southwestern willow flycatcher habitat for
nesting and migrating flycatchers, we believe these protections and
assurances warrant exclusion from flycatcher critical habitat.
Sevilleta NWR
The Sevilleta NWR's CCP describes 10 goals that promote the
diversity, protection, management, enhancement, and maintenance of
wildlife habitat. A few of those goals are specific to the management
of southwestern willow flycatcher habitat. A specific goal is to
``provide for the enhancement, preservation, and protection of
threatened and endangered species as they occur naturally or were
historically present on the Sevilleta NWR so that viable, self-
sustaining populations can be restored to their natural habitats.''
Additional goals describe, restoring and maintaining ``* * * the
natural diversity of plants and wildlife * * *,'' and protecting
existing, and securing ``* * * additional water rights and/or in-stream
flow rights as necessary to protect the integrity of the riparian and
aquatic habitats on the refuge.'' A total of 4 to 10 flycatcher
territories have been detected on the refuge between 1999 and 2003
(USGS 2004).
The CCP more specifically describes the refuge's objectives to meet
the goal of enhancing riparian habitat on the Rio Grande. At Sevilleta
NWR, one objective is to ``* * * preserve refuge habitat diversity and
threatened and endangered species habitats by preserving and enhancing
habitats to their natural condition.'' Another is to ``reverse
declining trends in quality and quantity of riparian wetland habitats;
restore, maintain, and enhance the species composition, aerial extent,
and spatial distribution of riparian/wetland habitats.'' The CCP also
describes that a key objective is to ``* * * preserve, enhance, and
restore hydrological regimes in order to perpetuate a healthy river
ecosystem.''
The CCP describes the goal of providing, ``* * * 100 acres (40 ha)
of cottonwood/willow habitat specifically for southwestern willow
flycatchers.'' In addition to the main goals and objectives specific to
river function and riparian habitat, the CCP describes strategies in
order to reach this flycatcher objective such as controlling non-native
vegetation, implementing management practices that ensure survival of
and eliminate impacts to naturally occurring threatened and endangered
species, and restoring native plants.
The effort to maintain and improve the abundance, distribution, and
quality of riparian vegetation provides a conservation benefit to the
flycatcher. As a result of the Sevilleta NWR's effort and long-term
commitment to provide a conservation benefit to the southwestern willow
flycatcher by improving the abundance, distribution, quality, and
persistence of native riparian vegetation for nesting and migrating
flycatchers, we believe these protections and assurances warrant
exclusion from flycatcher critical habitat.
San Luis Valley Management Unit, CO
Alamosa NWR
The Alamosa NWR's CCP describes 13 goals that promote the
diversity, protection, management, enhancement, and maintenance of
wildlife habitat. One of those goals is specific to the management of
habitat used by the southwestern willow flycatcher. This goal is to
``enhance the Rio Grande corridor and its tributaries on refuge lands
to provide habitat for river, riparian dependent, and other wetland
species.'' A total of 19 to 29 southwestern willow flycatcher
territories have been detected on the refuge between 1997 and 2003
(USGS 2004). In addition, flycatcher management on this refuge will
work in conjunction with additional flycatcher management throughout
the San Luis Valley Management Unit (see section describing
Relationship of Critical Habitat to Partnerships).
The CCP more specifically describes the refuge's objectives to meet
the goal of enhancing riparian habitat on the Rio Grande. At Alamosa
NWR, the objective is to ``* * * dense multi-layered native riparian
vegetation such as willows and cottonwoods for breeding and migrating
riparian obligate species, notably the southwestern willow flycatcher *
* *'' Additionally, an objective is to protect the aquatic resources
and provide for a disturbance free breeding environment for migratory
species. The refuge intends to perpetuate the natural aspect of the
physical and biological characteristics of the Rio Grande floodplain.
Additionally, the refuge intends to protect sufficient habitat for the
southwestern willow flycatcher through easement and fee-title
acquisition, habitat improvements on the refuge, and protections of
habitat on private lands through Partners for Fish and Wildlife
Programs.
The refuge-wide effort to maintain and improve the abundance,
distribution, and quality of riparian vegetation provides a
conservation benefit to the flycatcher. As a result of Alamosa's
refuge-wide effort and long-term commitment to provide a conservation
benefit to the southwestern willow flycatcher by improving the
abundance, distribution, quality, and persistence of native riparian
vegetation for nesting and migrating southwestern willow flycatchers,
we believe these protections and assurances warrant exclusion from
southwestern willow flycatcher critical habitat.
Pahranagat Management Unit, NV
Pahranagat NWR
The Pahranagat NWR was established for the conservation of
wildlife, including migratory birds like the southwestern willow
flycatcher. The Refuge's draft CCP specifies as one of its goals the
enhancement of wildlife diversity and contribution to the recovery of
endangered, threatened, and special status species through habitat
improvements and restoration.
In order to accomplish this goal for the southwestern willow
flycatcher, the refuge is currently engaged in a variety of management
actions. They are maintaining 41 ha (100 acs) of cottonwood/willow
riparian habitat specifically for breeding southwestern willow
flycatchers and other migratory birds. Additionally, over the last
three years the refuge has planted over 6,000 willows and cottonwood
trees on 81 ha (200 ac) to provide more breeding habitat for the
flycatcher. The refuge continues to help coordinate with other agencies
in their surveys and research of southwestern willow flycatchers and to
seek funding to develop more acreage into cottonwood/willow through
restoration efforts.
As a result of the refuge's management, the population of breeding
southwestern willow flycatchers has increased from 5 to 14 territories
between 1997 and 2003 (USGS 2004). The refuge-wide effort to maintain
and improve the abundance, distribution, and quality of riparian
vegetation provides a conservation benefit to the flycatcher. As a
result of the refuge's goals for conserving wildlife, and their
commitment to improving the abundance, distribution, quality, and
[[Page 60952]]
persistence of native riparian vegetation for nesting and migrating
southwestern willow flycatchers, we believe these protections and
assurances warrant exclusion from southwestern willow flycatcher
critical habitat.
(1) Benefits of Inclusion for NWR lands
We believe that there is minimal benefit from designating critical
habitat for the southwestern willow flycatcher on NWR lands because, as
explained in detail above, these lands are already managed for the
conservation of wildlife.
As stated in the environmental assessment, the primary conservation
value of the proposed critical habitat segments is to sustain existing
populations. The threshold for reaching destruction or adverse
modification on NWR lands would likely require a reduction in the
capability of the habitat to sustain existing populations. It is likely
that actions that would reduce the capability of the habitat to sustain
a population would also jeopardize the continued existence of the
species. Consequently, the outcome of the section 7 consultations on
NWR lands may not be materially different with designation of critical
habitat compared to the listing of the species alone. In addition,
given that these lands are managed for the conservation of wildlife, in
particular endangered and threatened species, and specifically riparian
habitat for migratory and nesting southwestern willow flycatchers, it
is highly unlikely that the NWR lands would consider undertaking any
projects that would result in a long-term reduction of the capability
of the habitat to sustain existing populations. To the contrary,
activities occurring within NWR lands are specifically for the benefit
of the flycatcher, by restoring, improving, and protecting its habitat.
As described above, all of NWR lands proposed for critical habitat
may have additional conservation value above sustaining existing
populations, because they are managing these lands to improve, protect,
and expand upon the amount of nesting habitat that would provide for
growth of existing populations. Expansion of existing populations in
these areas would be an element of recovering the southwestern willow
flycatcher. Accordingly, through section 7 consultations that may
occur, some benefit may incur through the adverse modification standard
and whether or not the activity results in a reduction in the
suitability of the habitat to support expansion of existing
populations. However, because formal consultations will likely result
in only discretionary conservation recommendations (i.e., adverse
modification threshold is not likely to be reached), we believe there
is an extremely low probability of mandatory elements (i.e., reasonable
and prudent alternatives) arising from formal section 7 consultations
that include consideration of designated southwestern willow flycatcher
critical habitat.
The draft environmental assessment found that minor changes through
section 7 consultation may occur in the form of additional
discretionary conservation recommendations to reduce impacts to the
primary constituent elements. For activities that NWR's are anticipated
to engage in, those are expected to primarily be projects focused on
habitat restoration and fire management. One formal consultation for
habitat restoration has occurred on NWR lands (Parahnagat NWR, NV) that
resulted in incidental take of one flycatcher territory. Both
restoration and fire management activities were anticipated in the
draft environmental assessment to possibly have short-term adverse
impacts to PCEs, but long-term beneficial effects from protections and
improvement of habitat quality, quantity, and persistence. However, as
discussed above, consultations on these activities would be similar to
existing conditions, where consultations already address potential
affects to the southwestern willow flycatcher because these river
segments are occupied by nesting and migrating southwestern willow
flycatchers. The outcome of the section 7 consultations on these NWRs
may not be materially different with designation of critical habitat
compared to the listing of the species alone due to the threshold for
reaching destruction or adverse modification on proposed critical
habitat. Moreover, we note that while additional conservation
recommendations may result for projects of this nature, they would be
discretionary on the part of the Federal agency.
(2) Benefits of Exclusion for NWR lands
The benefits of excluding NWR lands include a reduction in
administrative costs associated with engaging in section 7
consultations for critical habitat Administrative costs include
additional time spent in meetings and preparing letters, and in the
case of biological assessments and informal and formal consultations,
the development of those portions of these documents that specifically
address the critical habitat designation. NWR staff can, more
appropriately, use these funds toward continuing to manage and improve
NWR lands for their stated purpose, wildlife conservation (and
southwestern willow flycatcher conservation). In the future, these
refuges will likely engage in low effort informal intra-Service section
7 consultations annually, and less frequently formal consultations, to
address impacts of activities on the southwestern willow flycatcher
(primarily those associated with habitat restoration and fire
management). Potential project modifications are likely to be minimal,
given the beneficial nature of the NWR activities and projects.
(3) Benefits of Exclusion Outweigh Benefits of Inclusion
In summary, we believe that the benefits of excluding NWR's from
the designation of critical habitat for the southwestern willow
flycatcher outweigh the benefits of including the NWR's in critical
habitat. We find that including the NWR's would result in very minimal,
if any additional benefits to the southwestern willow flycatcher, as
explained above. However, including the NWRs in the designation would
require some additional administrative effort and cost during the
section 7 consultation process. Although the additional effort to
consider and analyze the affects of various projects on critical
habitat may not be substantial, it would require the NWR's to use
additional resources that may be otherwise used towards beneficial
projects for wildlife (and the southwestern willow flycatcher).
We also find that the exclusion of these NWRs will not lead to the
extinction of the southwestern willow flycatcher, nor hinder its
recovery because there is the emphasis at each NWR to protect and
enhance habitat specifically for the southwestern willow flycatcher.
Relationship of Critical Habitat to American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act
In accordance with the Secretarial Order 3206, ``American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997); the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and
the relevant provision of the Departmental Manual of the Department of
the Interior (512 DM 2), we believe that fish, wildlife, and other
natural resources on tribal lands are
[[Page 60953]]
better managed under tribal authorities, policies, and programs than
through Federal regulation wherever possible and practicable. Based on
this philosophy, we believe that, in many cases, designation of tribal
lands as critical habitat provides very little additional benefit to
threatened and endangered species. Conversely, such designation is
often viewed by tribes as an unwanted intrusion into tribal self
governance, thus compromising the government-to-government relationship
essential to achieving our mutual goals of managing for healthy
ecosystems upon which the viability of threatened and endangered
species populations depend.
We have determined that the following Tribes and Pueblos have lands
essential to the conservation of the southwestern willow flycatcher:
Chemehuevi, Colorado River, Fort Mojave, Quechan (Fort Yuma), Hualapai,
Isleta, La Jolla, Pala, Rincon, San Carlos, San Illdefonso, San Juan,
Santa Clara, Santa Ysabel, and Yavapai-Apache. In making our final
decision with regard to tribal lands, we considered several factors
including our relationship with the Tribe or Pueblo and whether a
management plan has been developed for the conservation of the
southwestern willow flycatcher on their lands.
Tribal governments protect and manage their resources in the manner
that is most beneficial to them. Each of the affected Tribes exercises
legislative, administrative, and judicial control over activities
within the boundaries of their respective lands. Additionally, they
have natural resource programs and staff, and some have generated
Southwestern Willow Flycatcher Management Plans (SWFMP). In addition,
as trustee for land held in trust by the United States for Indian
Tribes, the BIA provides technical assistance to the Tribes on
management planning and oversees a variety of programs on Tribal lands.
Flycatcher conservation activities have been ongoing on many Tribal
lands included in the proposed critical habitat designation. On other
Tribal lands, their natural resource management, while not specific to
the flycatcher, has been consistent with management of habitat for the
flycatcher. The development and implementation of these efforts
formalized in these Management Plans will continue with or without
critical habitat designation.
Tribal Conservation/Management Plans/Partnerships
In this section, we first provide the specifics of the SWFMPs that
were developed by the Tribes/Pueblos (Chemehuevi, Colorado River, Fort
Mojave, Quechan--Fort Yuma, Hualapai, Isleta, La Jolla, Rincon, San
Carlos, and Yavapai-Apache). These plans were all admitted to the
supporting record during the open comment period for the proposed rule.
After this introduction, we analyze the benefits of including these
lands within the critical habitat designation and the benefits of
excluding these areas. We have also developed partnerships specifically
for the management of southwestern willow flycatcher habitat on the San
Illdefonso, Santa Clara, and San Juan Pueblos in northern New Mexico.
We provide a description of those partnerships and a benefits analysis
for each of these Pueblos at the end of the tribal section below.
Tribal Conservation/Management Plans
In this section, we first provide the specifics of the SWFMP that
were developed by the Tribes/Pueblos. These plans were all admitted to
the supporting record during the open comment period for the proposed
rule. After this introduction, we analyze the benefits of including the
Tribes' lands within the critical habitat designation and the benefits
of excluding these areas.
Middle Colorado Management Unit, AZ
Hualapai Tribe
The Hualapai Tribe sits alongside a segment of essential
southwestern willow flycatcher habitat along the Colorado River on the
south side of the channel in the Middle Colorado Management Unit above
Lake Mead. The Hualapai Tribe had no known southwestern willow
flycatcher territories in 2003, but has eight sites where territories
have previously been detected. The Hualapai Tribe has finalized a SWFMP
and the plan has been adopted by the Hualapai Tribal Council.
The SWFMP's objectives are to: manage riparian vegetation to
maximize continued presence of native plant species suitable for use by
southwestern willow flycatchers; ensure that existing land uses (which
presently include recreational activities) will not result in net loss
or reduction in quality of southwestern willow flycatcher habitat; and
continue their Department of Natural Resources partnership in the
management of the lower Colorado River (see section describing
Relationship of Critical Habitat to Approved Habitat Conservation
Plans--Exclusions Under Section 4(b)(2) of the Act).
This SWFMP specifically addresses and presents assurances for
southwestern willow flycatcher conservation measures. There would be no
net loss or permanent modification from management of suitable native
riparian habitat to the bird. Any restoration activities that are
directed at reducing nonnative tamarisk, controlling fire, construction
of roads, or recreational management within occupied willow flycatcher
habitat, will be coordinated with the Service to ensure that
detrimental impacts are minimized. Helicopter flights will not approach
closer than 91 m (300 feet) of occupied habitat to avoid any possible
physical damage to birds or habitat from over-flights. Campsite
management will continue to ensure that no detrimental impacts to
overall willow flycatcher habitat quality. The Tribe will continue to
ensure documentation of breeding and migratory use by willow
flycatchers, pending availability funds. In this regard, the Hualapai
Nation will continue to seek funding through Tribal sources, partners
associated with the LCR MSCP, and outside grant sources. The Tribe will
encourage recreational use awareness of the conservation needs of the
willow flycatcher wherever possible. The Tribe will implement a
cowbird-trapping program if parasitism becomes a problem in the future,
dependent on available funds.
As a result of the assurances, protections, and conservation
benefit provided the southwestern willow flycatcher and its habitat on
Hualapai Tribal lands described above, we are excluding this area from
flycatcher critical habitat.
Hoover to Parker Management Unit, AZ/CA
Fort Mojave Tribe
The Fort Mojave Tribe sits alongside a segment of essential
southwestern willow flycatcher habitat along the Colorado River in the
Hoover to Parker Management Unit above Lake Havasu. The Fort Mojave
Tribe currently has no known southwestern willow flycatcher
territories, but these lands are within the geographic area occupied by
the species due to the proximity of known southwestern willow
flycatcher territories upstream and downstream, dispersal behavior,
movements, and migratory habitats. Southwestern willow flycatchers are
currently expected to use Fort Mojave lands along the Lower Colorado
River for foraging and shelter during migration. In addition,
flycatcher management on Tribal Land will work in conjunction with
additional flycatcher management
[[Page 60954]]
throughout the LCR MSCP (see section describing Relationship of
Critical Habitat to Approved Habitat Conservation Plans--Exclusions
Under Section 4(b)(2) of the Act).
The Fort Mojave Tribe has completed a SWFMP. Within the budgetary
constrains of the Fort Mojave Indian Tribe and the Service, the Tribe
has committed to continue management to sustain the current value of
saltcedar and willow and cottonwood stands that meet moist soil
conditions necessary to maintain the species; to continue to utilize
lands that do not have moist soil characteristics for territory and
associated nesting purposes for agricultural and other cultural,
economic and social needs; to carry out monitoring to determine species
presence and vegetation status in cooperation with the Service; and to
continue to provide wildfire response and law enforcement to protect
habitats having moist soil conditions of value for feeding within a
nesting area and similarly protect native cottonwood, willow, and
mesquite habitats to benefit the southwestern willow flycatcher.
As a result of the assurances, protections, and conservation
benefit provided the southwestern willow flycatcher and its habitat on
Fort Mojave Tribal lands described above, we are excluding this area
from flycatcher critical habitat.
Chemehuevi Tribe
The Chemehuevi Tribe sits alongside a segment of essential
southwestern willow flycatcher habitat along the Colorado River on the
west side of the channel in the Hoover to Parker Management Unit
adjacent to the Colorado River and Lake Havasu. The Chemehuevi Tribe
currently has no known southwestern willow flycatcher territories, but
these lands are within the geographic area occupied by the species due
to the proximity of known southwestern willow flycatcher territories
upstream and downstream, dispersal behavior, movements, and migratory
habitats. Southwestern willow flycatchers are currently expected to use
Chemhuevi lands along the Lower Colorado River for foraging and shelter
during migration. In addition, flycatcher management on Tribal Land
will work in conjunction with additional flycatcher management
throughout the LCR MSCP (see section describing Relationship of
Critical Habitat to Approved Habitat Conservation Plans--Exclusions
Under Section 4(b)(2) of the Act).
The Chemehuevi Tribe has finalized a SWFMP, that within funding
limits, commits the Tribe to continue to control wild fire, improve
native plant presence through restoration projects, minimize impacts
associated with recreational or other use along the river and lake
shorelines, and collaborate with the Service to improve conditions for
the flycatcher by discussing and implementing projects to reduce burro
damage. The SWFMP identifies the management of riparian saltcedar and
native willow, cottonwood, and mesquite to maximize native plant
presence. Management will be done in cooperative work effort with the
Service to identify restoration sites and provide early control
response to wild fires that would result in no net loss or permanent
modification that is detrimental to flycatcher or its habitat as
specified by the Recovery Plan (USFWS 2002). Any permanent river or
lakeshore land use changes, such as recreational or other developments,
will take habitat needs of the flycatcher into account and will be done
in mutual consultation with the Service so as to design plans that
minimize detrimental impacts to habitat requirements. The SWFMP
identifies continued cooperation between the Tribe and Service to
ensure continued management of or improve to habitat conditions.
Continued monitoring of habitat and flycatchers and long-term
restoration of native plants (e.g. cottonwood, mesquite, and willow),
within funding constraints, will result in no net habitat loss or
permanent habitat modification to avoid detrimental impacts to the
flycatcher as specified in the Recovery Plan.
As a result of the assurances, protections, and conservation
benefit provided the southwestern willow flycatcher and its habitat on
Chemehuevi Tribal lands described above, we are excluding this area
from flycatcher critical habitat.
Parker to Southerly International Border Management Unit, AZ/CA
Colorado Indian Tribes (CRIT)
We determined that the CRIT have areas that are essential to the
conservation of the southwestern willow flycatcher along the Colorado
River. The CRIT currently has no known southwestern willow flycatcher
territories, but these lands are within the geographic area occupied by
the species due to the proximity of known southwestern willow
flycatcher territories upstream and downstream, dispersal behavior,
movements, and migratory habitats. Southwestern willow flycatchers are
currently expected to use CRIT lands along the Lower Colorado River for
foraging and shelter during migration. The CRIT have been active in
riparian restoration within tribal boundaries, where territories may
become established. In addition, flycatcher management on Tribal Land
will work in conjunction with additional flycatcher management
throughout the LCR MSCP (see section describing Relationship of
Critical Habitat to Approved Habitat Conservation Plans--Exclusions
Under Section 4(b)(2) of the Act).
The Colorado River Indian Tribes have submitted a final SWFMP,
which describes the protections and assurances for the flycatcher. The
SWFMP identifies schedules for breeding habitat surveys and monitoring
flycatcher nesting activity. The SWFMP also identifies the assessment,
identification, and protection of flycatcher migration habitat. The
SWFMP identifies protecting breeding habitat with the Ahakhav Tribal
Preserve and in any areas established for flycatchers with the LCR
MSCP. Seasonal closures of occupied habitat during the breeding season
may be necessary and established by the CRIT. Protection of flycatcher
habitat from fire is established in the SWFMP, as well as protections
from other possible stressors such as overgrazing, recreation, and
development.
As a result of the assurances, protections, and conservation
benefit provided the southwestern willow flycatcher and its habitat on
CRIT lands described above, we are excluding this area from flycatcher
critical habitat.
Quechan (Fort Yuma) Indian Tribe
We determined that the Quechan Tribe has areas that are essential
to the conservation of the southwestern willow flycatcher along the
Colorado River near the City of Yuma. The Quechan Tribe currently has
no known southwestern willow flycatcher territories, but these lands
are within the geographic area occupied by the species due to the
proximity of known southwestern willow flycatcher territories upstream
and downstream, dispersal behavior, movements, and migratory habitats.
Southwestern willow flycatchers are currently expected to use Quechan
lands along the Lower Colorado River for foraging and shelter during
migration. In addition, flycatcher management on Tribal Land will work
in conjunction with additional flycatcher management throughout the LCR
MSCP (see section describing Relationship of Critical Habitat to
Approved Habitat Conservation Plans--Exclusions Under Section 4(b)(2)
of the Act).
The Quechan Tribe has completed a SWFMP. The objectives of the
SWFMP
[[Page 60955]]
specifically address and present assurances for southwestern willow
flycatcher habitat conservation measures. The Tribe will manage
riparian saltcedar that is intermixed with cottonwood, willow,
mesquite, and arrowweed to maximize potential value for use by
flycatchers for nesting. Any permanent land use changes for recreation
or other reasons will consider the biological needs of the flycatcher
and support flycatcher conservation needs as long as consistent with
Tribal cultural and economic needs. The Tribe will consult with the FWS
to develop/design plans that minimize impacts to habitat requirements
for the flycatcher. The Tribe will establish collaborative
relationships with the FWS to benefit the flycatcher including
monitoring for flycatcher presence and habitat condition, all within
the constraints of available funds to the Tribe. These goals and
objectives will result in no net habitat loss or permanent modification
to habitat values as specified within the Recovery Plan (USFWS 2002).
As a result of the assurances, protections, and conservation
benefit provided the southwestern willow flycatcher and its habitat on
Quechan Tribal lands described above, we are excluding this area from
flycatcher critical habitat.
Upper Gila Management Unit, AZ
San Carlos Apache Tribe
The San Carlos Apache Tribe has completed a SWFMP. The Tribe highly
values its wildlife and natural resources which it is charged to
preserve and protect under the Tribal Constitution. Consequently, the
Tribe has long worked to manage the habitat of wildlife on its tribal
lands, including the habitat of endangered and threatened species. We
understand that it is the Tribe's position that a designation of
critical habitat on its lands improperly infringes upon their tribal
sovereignty and the right to self-government.
The San Carlos Apache Tribes' SWFMP provides assurances and a
conservation benefit to the southwestern willow flycatcher.
Implementation of the SWFMP will result in protecting all known
flycatcher habitat on San Carlos Tribal Land and assure no net habitat
loss or permanent modification will result. All habitat restoration
activities (whether it is to rehabilitate or restore native plants)
will be conducted under reasonable coordination with the Service. All
reasonable measures will be taken to ensure that recreational
activities do not result in a net habitat loss or permanent
modification. All reasonable measures will be taken to conduct
livestock grazing activities under the guidelines established in the
Recovery Plan (USFWS 2002). Within funding limitations and under
confidentiality guidelines established by the Tribe, the Tribe will
cooperate with the Service to monitor and survey habitat for breeding
and migrating flycatchers, conduct research, and perform habitat
restoration, cowbird trapping, or other beneficial flycatcher
management activities.
As a result of the assurances, protections, and conservation
benefit provided to the southwestern willow flycatcher and its habitat
on San Carlos Apache Tribal lands described above, we are excluding
this area from flycatcher critical habitat.
Verde Management Unit, AZ
Yavapai-Apache Nation
We determined that the Yavapai-Apache Nation has areas that are
essential to the conservation of the southwestern willow flycatcher
along the Verde River in AZ. The Yavapai-Apache Nation currently has no
known southwestern willow flycatcher territories, but these lands are
within the geographic area occupied by the species due to the proximity
of known southwestern willow flycatcher territories upstream and
downstream, dispersal behavior, movements, and migratory habitats.
Southwestern willow flycatchers are currently expected to use Yavapai-
Apache lands along the Verde River for foraging and shelter during
migration.
The Yavapai-Apache Nation has completed a SWFMP. The objectives of
the SWFMP specifically address and present assurances for southwestern
willow flycatcher habitat conservation measures. The Nation will,
through zoning, Tribal ordinances and code requirements, and measures
identified in the Recovery Plan, take all practicable steps to protect
known southwestern willow flycatcher habitat located in the riparian
areas located along the Verde River. The Nation will take all
reasonable measures to assure that no net habitat loss or permanent
modification of flycatcher habitat will result from recreational and
road construction activities, or habitat restoration activities, and
will take all reasonable steps to coordinate with the Service so that
flycatcher habitat is protected. Within funding limitations and under
confidentiality guidelines established by the Tribe, the Tribe will
cooperate with the Service to monitor and survey habitat for breeding
and migrating flycatchers, conduct research, and perform habitat
restoration, cowbird trapping, or other beneficial flycatcher
management activities.
As a result of the assurances, protections, and conservation
benefit provided the southwestern willow flycatcher and its habitat on
Yavapai-Apache Tribal lands described above, we are excluding this area
from flycatcher critical habitat.
Middle Rio Grande Management Unit, NM
Pueblo of Isleta
The Pueblo of Isleta has amended its riverine management plan to
include the southwestern willow flycatcher. The main objective of the
flycatcher portion of this plan is to protect, conserve, and promote
the management of the southwestern willow flycatcher and its associated
habitat within the Pueblo's boundaries.
The Pueblo of Isleta's Management Plan focuses on identifying the
distribution and abundance of breeding flycatchers, their reproductive
success, and reducing stressors. Cattle grazing is not allowed in the
riparian area. Fire management will be conducted to protect flycatcher
habitat. Management of flycatcher habitat includes protecting occupied
habitat, maintaining native vegetation, and preventing habitat
fragmentation.
As a result of the assurances, protections, and conservation
benefit provided the southwestern willow flycatcher and its habitat on
Pueblo lands described above, we are excluding this area from
flycatcher critical habitat.
San Diego Management Unit, CA
La Jolla Band of Luise[ntilde]o Indians
The San Luis Rey (approximately 5 km/8 mi) flows through the Lo
Jolla Band of Indian Tribal Lands in northern San Diego County, CA. The
Tribe has identified that river flow is controlled by Lake Henshaw Dam
that can sometimes, due to drought, cause interruptions in flow and
possibly limit the development of riparian habitat and success for
species such as the southwestern willow flycatcher. This section of
stream was proposed as critical habitat. The La Jolla Tribe currently
has no known southwestern willow flycatcher territories, but these
lands are within the geographic area occupied by the species due to the
proximity of known southwestern willow flycatcher territories, upstream
and downstream, dispersal behavior, movements, and migratory habitats.
Southwestern willow flycatchers are currently expected to use La Jolla
lands along the San Luis Rey for foraging and shelter during migration.
[[Page 60956]]
The Tribe has described a collection of measures, protections, and
efforts they are and will be undertaking to protect riparian habitat
for the southwestern willow flycatcher. The Tribe maintains permanent
staff to address environmental issues, of which a Master's level
biologist is employed. The Tribe will work to maintain open space along
the river, with a particular emphasis on the western 2 km/3.5 mi
stretch of stream. The Tribe is working to establish this piece of
river as a reserve for environmental and cultural purposes. Management
of native vegetation and removal of exotic vegetation is occurring that
could improve the quality and abundance of native species, and/or
decrease the risk of wildfire in the riparian area. They are also
actively reducing the impact of recreation in riparian areas by
continuing to educate Tribal Members through outreach programs and
newsletters. Tribal staff are also developing brochures to provide to
campground visitors to encourage good stewardship and to educate them
on how to reduce impacts to the land. Additionally they are working to
discourage use of off-road vehicles in riparian areas through
education, movement of roads, closures, and development of Tribal
ordinances. The Tribe will explore future opportunities for research to
determine how to best manage for flycatchers. For example, they
indicated that it may be necessary to initiate a cowbird trapping
program if appropriate.
As a result of the assurances, protections, and conservation
benefit provided the southwestern willow flycatcher and its habitat on
La Jolla Tribal Lands through maintenance of open space, management,
and protections, we are excluding this area from flycatcher critical
habitat.
Rincon Tribe
The San Luis Rey River (roughly 3 km/1.8 mi) flows through Rincon
Tribal Lands in northern San Diego County, CA, just downstream from La
Jolla Tribal Land. The entire section of stream was proposed as
critical habitat. The Rincon Tribe currently has no known southwestern
willow flycatcher territories, but these lands are within the
geographic area occupied by the species due to the proximity of known
southwestern willow flycatcher territories, upstream and downstream,
dispersal behavior, movements, and migratory habitats. Southwestern
willow flycatchers are currently expected to use Rincon lands along the
San Luis Rey River for foraging and shelter during migration.
The Tribe has completed a plan that addresses potential threats to
flycatcher habitat through implementation of a variety of protective
measures. The Tribe will monitor and remove introduced exotic plants
that could reduce the quality and abundance of native species, and/or
increase the risk of wildfire in the riparian. They will exclude
activities in the floodplain which could remove or reduce the quality
of riparian habitat such as mining and livestock grazing. The Tribe
will exclude unauthorized recreational uses and off-road vehicle use.
Signs, boundaries, and/or other measures will be taken to educate the
public and prevent unauthorized recreational use.
The Tribe will dedicate funding to this effort and report to the
Service its annual progress. The Tribe will coordinate with the Service
on whether the Plan requires updating. The Tribe hopes to incorporate
these activities into a formalized HCP that is targeted for completion
in 2006. In the event that a decision is made to not complete the HCP,
this Plan will be revised and adopted for another 30 years.
As a result of the assurances, protections, and conservation
benefit provided the southwestern willow flycatcher and its habitat on
Rincon Tribal Lands through implementation of their management plan, we
are excluding this area from flycatcher critical habitat.
(1) Benefits of Inclusion for Tribal Lands
Few additional benefits would be derived from including these
Tribal lands in a flycatcher critical habitat designation beyond what
will be achieved through the implementation of their management plans.
The principal benefit of any designated critical habitat is that
activities in and affecting such habitat require consultation under
section 7 of the Act. Such consultation would ensure that adequate
protection is provided to avoid destruction or adverse modification of
critical habitat. However, we conclude that few regulatory benefits to
the flycatcher would be gained from a designation of critical habitat
on these Tribal lands because, as described above, these Tribes are
already managing their lands consistent with the Recovery Plan. When we
review projects pursuant to section 7 for the flycatcher we review them
for their consistency with the Recovery Plan. Therefore, consultations
would not be materially different without a designation of critical
habitat since we would use a similar approach in this case for both the
jeopardy and adverse modification analyses. Also, where there is
consistency with the Recovery Plan, it would be highly unlikely that
the consultation would result in a determination of adverse
modification. Thus, as noted above, when the threshold for adverse
modification is not reached, as noted above, additional conservation
recommendations could result out of a consultation, but such measures
would be discretionary on the part of the Federal agency. These Tribes
have already agreed under the terms of their flycatcher management
plans to protect flycatcher habitat, to ensure no net loss, to
coordinate with the Service, and to conduct activities consistent with
the Recovery Plan. Accordingly, we find the consultation process for a
designation of critical habitat is unlikely to result in additional
protections for the flycatcher on Tribal lands.
Another possible benefit is that the designation of critical
habitat can help to inform the Tribes/Pueblos regarding potential
conservation value of an area, and may focus efforts by clearly
delineating areas of high conservation value for the flycatcher. Any
information about the flycatcher and its habitat that reaches a wide
audience, including other parties engaged in conservation activities,
would be considered valuable. These Tribes/Pueblos are currently
working with the Service to address habitat and conservation needs for
the flycatcher. Additionally, we anticipate that these Tribes/Pueblos
will continue to actively participate in working groups, and provide
for the timely exchange of management information. The educational
benefits important for the long-term survival and conservation of the
flycatcher are being realized. Educational benefits will continue on
these lands if they are excluded from the designation, because the
management/conservation plans already recognize the importance of those
habitat areas to the flycatcher. Additionally, we included these lands
in the proposed and final rules as areas essential to the conservation
of the southwestern willow flycatcher so information about their
essential nature has been published through this rulemaking process.
Another possible benefit is the additional funding that may be
generated for habitat restoration or improvement by having an area
designated as critical habitat. In some instances, having an area
designated as critical habitat may improve the ranking a project
receives during evaluation for funding. Tribes/Pueblos often require
additional sources of funding in order to conduct wildlife-related
activities. Therefore, having an area designated as
[[Page 60957]]
critical habitat could improve the chances of Tribes receiving funding
for flycatcher-related projects. However, the perceived restrictions of
a critical habitat designation would likely have a more damaging effect
to coordination efforts, possibly preventing actions that might
maintain, improve, or restore habitat. Additionally, areas occupied by
nesting, migrating, dispersing, or foraging flycatchers, as is the case
here, also provide benefits when projects are evaluated for receipt of
funding.
For these reasons, then, we believe that designation of critical
habitat would have few additional benefits beyond those that will
result from continued consultation under the jeopardy standard.
(2) Benefits of Exclusion
The benefits of excluding these Tribal Lands from designated
critical habitat are more significant. They include: (1) The
advancement of our Federal Indian Trust obligations and our deference
to tribes to develop and implement tribal conservation and natural
resource management plans for their lands and resources, which includes
the flycatcher; (2) the maintenance of effective working relationships
to promote the conservation of the flycatcher and its habitat; (3) the
allowance for continued meaningful collaboration and cooperation; (4)
the provision of conservation benefits to riparian ecosystems and the
flycatcher and its habitat that might not otherwise occur; and (5) the
reduction or elimination of administrative and/or project modification
costs as analyzed in the economic analysis.
During the development of the flycatcher critical habitat proposal
(and coordination for other critical habitat proposals), and other
efforts such as development of the Southwestern Willow Flycatcher
Recovery Plan, we have met and/or communicated with various Tribes/
Pueblos to discuss how they might be affected by the regulations
associated with flycatcher management, flycatcher recovery, and the
designation of critical habitat. As such, we established relationships
with Tribes/Pueblos specific to flycatcher conservation. As part of our
relationship, we provided technical assistance to each of these Tribes/
Pueblos to develop measures to conserve the flycatcher and its habitat
on their lands. These measures are contained within the management/
conservation plans that we have in our supporting record for this
decision (see discussion above). These proactive actions were conducted
in accordance with Secretarial Order 3206, ``American Indian Tribal
Rights, Federal--Tribal Trust Responsibilities, and the Endangered
Species Act'' (June 5, 1997); the President's memorandum of April 29,
1994, ``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951); Executive Order 13175; and the relevant
provision of the Departmental Manual of the Department of the Interior
(512 DM 2). We believe that these Tribes/Pueblos should be the
governmental entities to manage and promote the conservation of the
flycatcher on their lands. During our communication with these Tribes/
Pueblos, we recognized and endorsed their fundamental right to provide
for tribal resource management activities, including those relating to
riparian ecosystems.
The designation of critical habitat on these Tribal or Pueblo lands
would be expected to adversely impact our working relationship with
these Tribes. In fact, during our discussions with these Tribes and
from comments received, many informed us that critical habitat would be
viewed as an intrusion on their sovereign abilities to manage natural
resources in accordance with their own policies, customs, and laws. To
this end, we found that each Tribe would prefer to work with us on a
government-to-government basis. For these reasons, we believe that our
working relationships with these Tribes would be better maintained if
they are excluded from the designation of critical for the flycatcher.
We view this as a substantial benefit since we have developed a
cooperative working relationship with the Tribes and Pueblos for the
mutual benefit of the conservation of the southwestern willow
flycatcher and other threatened and endangered species.
We indicated in the proposed rule (October 12, 2004; 69 FR 60706)
that our final decision regarding the designation of critical habitat
on Tribal Lands, would consider our relationship with Tribes and/or
Pueblos and whether they developed a flycatcher specific management
plan. We identified that the Colorado River Indian Tribes and Hualapai
Tribe had draft plans and the Santa Ana Pueblo had developed a Safe
Harbor Agreement with us for flycatchers. Santa Ana Pueblo lands were
not included in the proposal. We also discussed our continued
cooperation with Tribes and Pueblos during the comment period on the
development of Management Plans. During the comment period, we received
input from many Tribes and BIA offices expressing the view that
designating critical habitat for the flycatcher on Tribal land would
adversely affect the Service's working relationship with all Tribes.
Many noted the beneficial cooperative working relationships between the
Service and Tribes have assisted in the conservation and recovery of
listed species and other natural resources. They indicated that
critical habitat designation on these Tribes or Pueblos would amount to
additional Federal regulation of sovereign Nations' lands, and would be
viewed as an unwarranted and unwanted intrusion into Tribal natural
resource programs. We conclude that our working relationships with
these Tribes on a government-to-government basis have been extremely
beneficial in implementing natural resource programs of mutual
interest, and that these productive relationships would be compromised
by critical habitat designation of these Tribal lands.
In addition to management/conservation actions described for the
conservation of the flycatcher, we anticipate future management/
conservation plans to include conservation efforts for other listed
species and their habitat. We believe that many Tribes and Pueblos are
willing to work cooperatively with us to benefit other listed species,
but only if they view the relationship as mutually beneficial.
Consequently, the development of future voluntarily management actions
for other listed species will likely be contingent upon whether these
Tribal lands are designated as critical habitat for the flycatcher.
Thus, a benefit of excluding these lands would be future conservation
efforts that would benefit other listed species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
In summary, the benefits of including these Tribes and Pueblos in
the critical habitat designation are limited to a potential benefit
gained through the requirement to consult under section 7 and
consideration of the need to avoid adverse modification of critical
habitat and potential educational benefits. However, as discussed in
detail above, we believe these benefits are provided for through other
mechanisms. The benefits of excluding these areas from being designated
as critical habitat for the flycatcher are more significant, and
include encouraging the continued implementation of the tribal
management/conservation measures such as monitoring, survey,
restoration, protection, and fire-risk reduction activities that are
planned for the future or are currently being implemented. These
programs will allow the Tribes to manage their natural resources to
[[Page 60958]]
benefit riparian ecosystems for the flycatcher, without the perception
of Federal Government intrusion. This philosophy is also consistent
with our published policies on Native American natural resource
management. The exclusion of these areas will likely also provide
additional benefits to the flycatcher and other listed species that
would not otherwise be available due to the Service's ability to
encourage and maintain cooperative working relationships with other
Tribes and Pueblos. We find that the benefits of excluding these areas
from critical habitat designation outweigh the benefits of including
these areas.
As noted above, the Service may exclude areas from the critical
habitat designation only if it is determined, ``based on the best
scientific and commercial data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species concerned.'' Here, we have determined that exclusion of these
Tribes and Pueblos from the critical habitat designation will not
result in the extinction of the flycatcher. First, activities on these
areas that may affect the flycatcher will still require consultation
under section 7 of the Act. Section 7(a)(2) of the Act requires Federal
agencies to ensure that activities they authorize, fund, or carry out
are not likely to jeopardize the continued existence of listed species.
Therefore, even without critical habitat designation on these lands,
activities that occur on these lands cannot jeopardize the continued
existence of the flycatcher. Second, each of the Tribes have committed
to protecting and managing according to their management/conservation
plans and natural resource management objectives. In short, the Tribes
have committed to greater conservation measures on these areas than
would be available through the designation of critical habitat. With
these natural resource measures, we have concluded that this exclusion
from critical habitat will not result in the extinction of the
flycatcher, chiefly because the management/conservation plans are
generally based on the management tenets of the Recovery Plan.
Accordingly, we have determined that these Tribes and Pueblos should be
excluded under subsection 4(b)(2) of the Act because the benefits of
excluding these lands from critical habitat for the flycatcher outweigh
the benefits of their inclusion and the exclusion of these lands from
the designation will not result in the extinction of the species.
Upper Rio Grande Management Unit
San Ildefonso Pueblo
We have worked with San Ildefonso Pueblo (Pueblo) to consolidate
information on their past, present, and future voluntary measures,
restoration projects, and management to conserve the southwestern
willow flycatcher and its habitat on their lands. We have determined,
pursuant to section 4(b)(2) of the Act, that we will exclude the lands
of this Pueblo, in the Upper Rio Grande Management Unit, from the final
designation of critical habitat. As described in our 4(b)(2) analysis
below, we have reached this determination because of our effective
working relationship with the Pueblo and the benefits of excluding
their lands from the final critical habitat designation outweigh the
benefits of designating their lands.
San Ildefonso Pueblo is in Santa Fe County, approximately 37 km (23
mi) north of the city of Santa Fe. It encompasses approximately 10,602
ha (26,198 ac) in the Rio Grande valley, including approximately 434 ha
(1,073 ac) of the Rio Grande floodplain. On the Pueblo, water is
diverted from the Rio Grande for an irrigation system that supports
Tribal agricultural practices. Multiple-use practices of the river and
riparian habitat resources are an essential component of Tribal
activities and culture, and as a result, the Pueblo has taken steps to
manage all the components of the riparian habitat (bosque) to ensure
that it is intact for future generations. The need for bosque
restoration on the Pueblo includes the fact that it is an area of
wildland urban interface and current fuel levels in the riparian area
pose a fire threat. Over the years, the bosque area has been overtaken
by non-native plant species that have created a hazardous potential for
wildland fire within the urban interface. The removal of non-native
vegetation with the planting of native vegetation and floodplain
rehabilitation are being conducted by the Pueblo. Flycatcher surveys
are conducted by the Bureau of Indian Affairs (BIA) before the
implementation of projects and they have not detected any flycatchers
in the project areas (Norman Jojola, BIA Northern Pueblos Agency, pers.
comm., August 24, 2005). The Pueblo's long-term management objectives
include efforts to reestablish and maintain sustainable native plant
communities in the Rio Grande floodplain and improve habitat, including
wetland restoration, for culturally important plant and wildlife
species, including the southwestern willow flycatcher.
Since 1995, we have been working with the Pueblo and the BIA on
wildlife-related projects. We established and maintain a cooperative
working relationship with the BIA and their consultants when they
requested our involvement and review of environmental assessments for
Pueblo projects that included evaluations of habitat for flycatchers.
We reviewed the project proposals, environmental assessments, and
resulting determinations, and all but one of the proposed projects were
determined to have ``no effect'' or to have an insignificant and
discountable effect. The one project that was a ``may effect'' is
described below.
The project that had the determination of ``may affect, not likely
to adversely affect'' the flycatcher (Service Cons. 2-22-99-I-
187, 1999), involved the installation of exploratory wells in the
bosque, and resulted in an informal consultation for the flycatcher and
its habitat. Surveys in the project area did not detect any flycatchers
and a 10 by 15 m (32 by 50 ft) patch of potential flycatcher habitat
was not affected by the project. In 2001, we also provided technical
advice to the BIA and the Pueblo for upcoming bosque restoration
projects (Norman Jojola, BIA, August 24, 2005). It was determined that
nesting habitat did not exist at the proposed project sites. Surveys
conducted by BIA did not detect any flycatchers at the sites.
A 2003-2005 project that we consulted on involves approximately 749
acres along the east side of the Rio Grande within the bosque corridor
of San Ildefonso Pueblo (Service 2003, 2004). The project will restore
native riparian vegetation and the floodplain by removal of non-native
plants and the enhancement of native vegetation and wetlands. The BIA
and the Pueblo consulted with us to address concerns about the
flycatcher and its habitat at this project site. Flycatcher surveys
were conducted and no flycatchers were detected. It was determined that
the flycatcher nesting habitat did not exist at the project site and
the effect to migration habitat would be insignificant and
discountable.
The bosque is important to the traditional life of the people of
the Pueblo of San Ildefonso. The Pueblo is managing the vegetation and
water components of the bosque to ensure its integrity for the future.
They were awarded a Pub. Law 93-638 contract in 2003 to implement the
development of a reservation-wide Integrated Resource Management Plan.
This process provides the opportunity for the Pueblo to address its
resources as a whole and
[[Page 60959]]
provide a holistic management approach which would include threatened
and endangered species and their habitat. As a sovereign entity they
seek to continue to protect and manage their resources according to
their traditional and cultural practices, with consideration given to
the prevention of wildfires given that it is an area of wildland urban
interface (San Ildefonso, August 22, 2005).
The Pueblo request that their land be excluded from the designation
of critical habitat in that they want the Service to recognize their
sovereign status and their right to manage their own resources. They
consider the designation of critical habitat on their land as a total
disregard of the Service's trust responsibility to the Tribe and their
sovereign status (BIA Northern Pueblos Agency, July 11, 2005). They
recognize the importance of their land as a migration area for the
flycatcher and they understand that due to their proximity to known
territories that their lands were included in the proposal as essential
habitat, which includes the potential for dispersal of flycatchers and
future development of nesting habitat. However, their traditions and
culture have a holistic approach to resource management and they want
the Service to recognize this and exclude the Pueblo from the
designation of critical habitat.
(1) Benefits of Inclusion
The principal benefit of any designated critical habitat is that
activities in and affecting such habitat require consultation under
section 7 of the Act if a Federal action is involved. Such
consultations ensure that adequate protection is provided to avoid
destruction or adverse modification of critical habitat. The section 7
conferencing and consultations involving projects on lands of the San
Ildefonso Pueblo for the flycatcher have all been informal. Effects to
the flycatcher from Pueblo projects have been insignificant and
discountable with determinations of ``no effect'' or ``may affect, not
likely to adversely affect'' the flycatcher and its habitat. These
determinations resulted from the beneficial nature of the projects
proposed to the flycatcher (e.g., restoration and fuels reduction
projects). Given that lands of the San Ildefonso Pueblo are managed in
a way that provide benefits to the flycatcher, it is highly unlikely
that projects would be considered that would result in a depreciable
diminishment or long-term reduction of the capability of the habitat to
provide for areas of migration and dispersal. To the contrary,
activities occurring on these lands will provide benefits to the
flycatcher by restoring, improving, and protecting its habitat. Thus we
conclude that few regulatory benefits to the flycatcher would be gained
from a designation of critical habitat on the Pueblo lands because, as
described above, and as evidence by the consultation history, the
Pueblo is already managing their lands for the benefit of the
flycatcher and its habitat. Furthermore, based on the consultation
history and the beneficial nature of the projects undertaken by the
Pueblo, it would be highly unlikely that the consultation would result
in a determination of adverse modification. Thus, as described in the
``General Principles of Section 7 Consultations Used in the 4(b)(2)
Balancing Process'' section above, when the threshold for adverse
modification is not reached, additional conservation recommendations
could result out of a consultation, but such measures would be
discretionary on the part of the Federal agency.
Another possible benefit is that the designation of critical
habitat can serve to educate the public regarding the potential
conservation value of an area, and this may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation value for certain species. Any information about the
flycatcher and its habitat that reaches a wide audience, including
other parties engaged in conservation activities, would be considered
valuable. However, the Pueblo is already working with the Service to
understand the habitat needs of the species. Further, the Pueblo lands
were included in the proposed designation, which itself has reached a
wide audience, and has thus provided information to the broader public
about the conservation value of this area. Thus, the educational
benefits that might follow critical habitat designation, such as
providing information to the BIA or the Pueblo on areas that are
important for the long-term survival and conservation of the species,
have already been provided by proposing the area as critical habitat.
For these reasons, then, we believe that designation of critical
habitat would have few, if any, additional benefits beyond those that
will result from continued consultation for the presence of the
species.
(2) Benefits of Exclusion
The benefits of excluding San Ildefonso Pueblo from designated
critical habitat are significant. The proposed critical habitat
designation included approximately 434 ha (1,073 ac) of Rio Grande
floodplain within the Pueblo boundaries. We believe that the
significant benefits that would be realized by forgoing the designation
of critical habitat on this area include: (1) The furtherance of our
Federal Trust obligations and our deference to the Pueblo to develop
and implement Tribal conservation and natural resource management plans
for their lands and resources within the Rio Grande ecosystem, which
includes the flycatcher and its habitat; (2) the continuance and
strengthening of our effective working relationships with the Pueblo to
promote the conservation of the flycatcher and its habitat; (3) the
allowance for continued meaningful collaboration and cooperation in
surveying as we work towards recovery of the species; and (4) the
provision of conservation benefits to the Rio Grande ecosystem and the
flycatcher and its habitat that might not otherwise occur.
As discussed above, we met with San Ildefonso Pueblo to discuss how
they might be affected by the designation of critical habitat. The
meetings with the Pueblo were conducted in accordance with Secretarial
Order 3206; the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59
FR 22951); Executive Order 13175; and the relevant provision of the
Departmental Manual of the Department of the Interior (512 DM 2). We
believe that the Pueblos should be the governmental entities that
manage and promote the conservation of the flycatcher on their lands
and this was stated during meetings. We also recognized and endorsed
their resource management activities, including those relating to the
Rio Grande ecosystem. Much of our discussions centered on providing
technical advice/assistance to the Pueblo to continue their natural
resource management activities that provide benefits to the flycatcher.
Our meetings with the Pueblo are a component of our effective
working relationship with them. We established a working relationship
in respect to the flycatcher with the earlier informal consultations
discussed above. We are maintaining the relationship by means of
informal meetings that offer information sharing and technical advice/
assistance about project effects to flycatchers and recommended
conservation measures.
We find that conservation benefits (e.g., flycatcher surveys and
habitat restoration enhancement) are being provided to the flycatcher
and its habitat through our cooperative working relationship with the
San Ildefonso Pueblo. During our discussions with the Pueblo we were
informed that critical
[[Page 60960]]
habitat would be viewed as an intrusion on their sovereign abilities to
manage natural resources in accordance with their own policies,
customs, and laws. To this end, we found that the Pueblo would prefer
to work with us on a Government-to-Government basis. For these reasons,
we believe that our working relationship with the Pueblo would be
maintained if they are excluded from the designation of critical
habitat for the flycatcher.
The consultation history, conservation, restoration, and management
information submitted to us by the Pueblo documents that meaningful
collaborative and cooperative work for the flycatcher and its habitat
will continue within their lands. These commitments demonstrate the
willingness of the Pueblo to work cooperatively with us toward
conservation efforts that will benefit the flycatcher. The Pueblo has
committed to several ongoing and future management, restoration,
enhancement, and survey activities and we believe that the results of
these activities will promote long-term protection and conserve the
flycatcher and its habitat within the Pueblo lands. The benefits of
excluding this area from critical habitat will encourage the continued
cooperation and development of data-sharing and management plans. If
this area is designated as critical habitat, we believe it is unlikely
that sharing of information would occur.
Educational benefits will be provided to the Pueblo lands if they
are excluded from the designation because their past and ongoing
restoration projects, with management goals, provide for conservation
benefits above any that would be provided by designating critical
habitat. For example, the educational aspects are likely greater for
this area if they are not included in the designation because the
Pueblo will continue to work cooperatively with the Service to restore
and enhance their Rio Grande floodplain with habitat that will
contribute to the recovery of the species. Surveys that are conducted
for the presence or absence of flycatchers at projects sites will
record migration use of the area and the participation by tribal
biologist in the survey process adds to educational benefits and
conservation of the species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
In summary, the benefits of including the Pueblo in critical
habitat are small, and are limited to minor educational benefits. The
benefits of excluding these areas from critical habitat for the
flycatcher are more significant, and include encouraging the continued
development and implementation of special management measures such as
surveys, enhancement, and restoration activities that are planned for
the future or are currently being implemented. These activities and
projects will allow the Pueblo to manage their natural resources to
benefit the Upper Rio Grande Management Unit for the flycatcher,
without the perception of Federal Government intrusion because of the
designation of critical habitat on their land. This philosophy is also
consistent with our published policies on Native American natural
resource management. The exclusion of this area will likely also
provide additional benefits to the species that would not otherwise be
available to encourage and maintain cooperative working relationships.
We find that the benefits of excluding this area from critical habitat
designation outweigh the benefits of including this area.
We believe that exclusion of San Ildefonso Pueblo land will not
result in extinction of the species. Current records do not document
any nesting habitat on the Pueblo but recognize it as a migration
corridor and potential area for dispersal. The Pueblo has committed to
protecting and managing according to their tribal and cultural
management plans and are in the process of creating an IRMP that
includes management for threatened and endangered species. In short,
the Pueblo has committed to greater conservation measures on their land
than would be available through the designation of critical habitat.
With these natural resource measures, we have concluded that this
exclusion from critical habitat will not result in the extinction of
the flycatcher. Accordingly, we have determined that the Pueblo lands
of San Ildefonso should be excluded under subsection 4(b)(2) of the Act
because the benefits of exclusion outweigh the benefits of inclusion
and will not cause the extinction of the species.
Santa Clara Pueblo
During the open comment period, we worked with Santa Clara Pueblo
(Pueblo) to consolidate information on their past, present, and future
voluntary measures, restoration projects, and management to conserve
the southwestern willow flycatcher and its habitat on their lands. We
have determined that the lands of this Pueblo, in the Upper Rio Grande
Management Unit, will not be designated as critical habitat. As
described in our section 4(b)(2) analysis below, we have reached this
determination because the benefits of excluding their lands from the
final critical habitat designation outweigh the benefits of designating
their lands.
Santa Clara Pueblo lies within the proposed designated critical
habitat for the flycatcher in the Upper Rio Grande Management Unit. The
Pueblo is located on the west bank of the Rio Grande approximately 48
km (30 mi) north of the City of Santa Fe in northern New Mexico. The
Pueblo encompasses more than 21,449 ha (53,000 ac) of diverse
vegetative communities, including approximately 714 ha (1,764 ac) of
Rio Grande woodland/shrubs (bosque). Approximately 10 km (6 mi) of the
Rio Grande corridor is a heavily ``checkerboarded'' area with private
non-Indian in-holdings now belonging to the City of Espanola, the
result of non-Indian encroachment that was sanctioned by the Federal
government in the 1920s and 1930s.
The Rio Grande is an integral part of the Pueblo's history,
culture, and continued preservation as a homeland. They view all of
their natural resources, including the Rio Grande bosque, as important
to the survival of the Santa Clara people. Many of the various
vegetative communities within the Pueblo and the innumerable wildlife
species they support have significant traditional and spiritual value
to the tribal people. Because of this and because the Pueblo maintains
the sovereign right to manage all the resources within their
boundaries, the Tribal Council of Santa Clara Pueblo made a commitment
in 2000, that was extended in 2001, to develop an Integrated Resource
Management Plan (IRMP) that addresses multi-use, enhancement, and
management of their natural resources. Progress is being made in
completing the IRMP but it is not yet complete. The Pueblo has
submitted a copy of the Tribal Council Resolution as documentation of
their commitment to ensure that as part of the IRMP process they
``consider traditional and long-standing uses of tribal lands and
utilize appropriate land management protocols while ensuring that
culturally and biologically sensitive areas, plants, animals, and other
resources will be provided the highest levels of protection.'' (Santa
Clara Pueblo Tribal Council Resolution No. 2001-23; July 18, 2001). The
IRMP, in its current draft form, was not submitted during the open
comment period because it is undergoing review from the Santa Clara
Pueblo community (Santa Clara Pueblo, July 12, 2005). They believe it
would be inappropriate not to follow the community's internal review
system, which experienced delays due to staff changes. Nonetheless, the
Pueblo
[[Page 60961]]
has already sought and received over $600,000 in funds to complete the
IRMP and has contributed approximately 4,500 staff hours within the
Pueblo toward development of the IRMP.
Approximately 714 ha (1,764 ac) of Rio Grande bosque on Santa Clara
Pueblo has become very susceptible to wildfire; changes in hydrology
have encouraged the growth of vegetation that results in heavy fuel
loads. The Pueblo had to contend with catastrophic wildfires just
within the past decade. The ``Tuesday Fire,'' in the urban interface,
burned approximately 61 ha (150 ac) of bosque in 1997; in 2004, the
``Black Mesa'' fire burned additional bosque acres. Other fires that
occurred in the area were: the ``Oso Complex'' in June 1998, the
``Cerro Grande'' in May 2000, and bosque fires in the adjoining San
Juan Pueblo. This susceptibility to wildfire has prompted Santa Clara
Pueblo to undertake management activities along the bosque to protect
the health and safety of the Tribal people. In conjunction with the
comprehensive IRMP process, the Pueblo has undertaken projects to
reduce the fire risk in the area.
The main Pueblo village, the City of Espanola, and nearby non-
Indian communities are located close to the river and therefore the
bosque acres on Santa Clara Pueblo, which are proposed designated
critical habitat for the flycatcher, are considered by the Bureau of
Indian Affairs (BIA) and the Pueblo to be Wildland-Urban Interface
(WUI) for purposes of implementation of the Federal government's
National Fire Plan. A key priority of the National Fire Plan is to
reduce hazardous fuel loads in WUI areas in order to reduce the
imminent danger to human life and property. However, the Pueblo
recognizes the need for fuels reduction and habitat restoration to
occur in small increments so as not to harm wildlife in the transition
and has committed to this process (Santa Clara Pueblo, July 12, 2005).
The Pueblo has implemented fuel reduction and restoration in their
bosque since 2001 and they have projects in various planning stages for
the future. In 2001, fuel reduction and restoration took place on 64 ha
(159 ac). After that, the Pueblo submitted a request to the BIA for
additional funds to work on treatment and restoration of and additional
121 ha (298 ac). In addition, the Pueblo entered into an agreement with
New Mexico Association of Conservation Districts and the East Rio
Arriba and Water Conservation District for a two-year hazardous fuels
treatment project which is in progress on 54 ha (133 ac). Finally, the
Pueblo received approval from the U.S. Forest Service for an inter-
tribal Collaborative Forest Restoration Proposal to treat and restore
another 23 ha (58 ac). As is evidenced here, Santa Clara Pueblo, for
the past five years, has systematically planned and received funding to
do WUI bosque management and habitat restoration along their bosque.
The Pueblo and its consultants and the BIA have worked in close
communication with the Service to address any impacts to the flycatcher
and its habitat in connection with these projects (Service 2003). There
have been informal meetings with Service staff and Pueblo staff that
have resulted in a good working relationship. Another demonstration of
this cooperative working relationship and the Pueblo's efforts for
conservation of the flycatcher is that, in 2005, three Tribal members
participated in training, held at the Service's Albuquerque Field
Office, for conducting protocol surveys for the flycatcher. The Pueblo
has also identified funding to conduct flycatcher surveys within their
entire bosque for Spring of 2006.
The Pueblo has pointed out that their commitments to manage the
bosque are in keeping with the goals and techniques and guidelines for
fire management and habitat restoration outlined in the Recovery Plan
for the flycatcher (Santa Clara Pueblo, July 12, 2005). Santa Clara's
commitment to protect the health, well-being, safety, and economy of
their people is not isolated from the commitment to protect and restore
the ecosystem with its wildlife species and habitat. They view the
world holistically and their management and commitments will result in
long-term benefits to the ecosystem upon which a diverse array of
plants and wildlife depend, including the endangered southwestern
willow flycatcher.
(1) Benefits of Inclusion
The principal benefit of any designated critical habitat is that
activities in and affecting such habitat require consultation under
section 7 of the Endangered Species Act if a Federal action is
involved. Such consultations ensure that adequate protection is
provided to avoid destruction or adverse modification of critical
habitat. The section 7 conferencing and consultations involving Santa
Clara Pueblo for the flycatcher have been informal. Effects to the
flycatcher from Pueblo projects have been insignificant and
discountable with determinations of ``no effect'' to the flycatcher and
its habitat (Santa Clara Pueblo, August 26, 2005). These determinations
resulted from the lack of presence of the flycatcher.
Given that lands of the Santa Clara Pueblo are managed in a way
that provide benefits to the flycatcher, it is highly unlikely that
projects would be considered that would result in a depreciable
diminishment or long-term reduction of the capability of the habitat to
provide for areas of migration and dispersal. To the contrary,
activities occurring on these lands will provide benefits to the
flycatcher by restoring, improving, and protecting its habitat. Thus we
conclude that few regulatory benefits to the flycatcher would be gained
from a designation of critical habitat on the Pueblo lands because, as
described above, and as evidence by the consultation history, the
Pueblo is already managing their lands for the benefit of the
flycatcher and its habitat. Furthermore, based on the consultation
history and the beneficial nature of the projects undertaken by the
Pueblo, it would be highly unlikely that the consultation would result
in a determination of adverse modification. Thus, as described in the
``General Principles of Section 7 Consultations Used in the 4(b)(2)
Balancing Process'' section above, when the threshold for adverse
modification is not reached, additional conservation recommendations
could result out of a consultation, but such measures would be
discretionary on the part of the Federal agency.
Another possible benefit is that the designation of critical
habitat can serve to educate the public regarding the potential
conservation value of an area, and this may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation value for certain species. Any information about the
flycatcher and its habitat that reaches a wide audience, including
other parties engaged in conservation activities, would be considered
valuable. However, the Pueblo is already working with the Service to
understand the habitat needs of the species and some of their
biologists have participated in flycatcher survey training classes.
Further, the Pueblo lands were included in the proposed designation,
which itself has reached a wide audience, and has thus provided
information to the broader public about the conservation value of this
area. Thus, the educational benefits that might follow critical habitat
designation, such as providing information to the BIA or the Pueblo on
areas that are important for the long-term survival and conservation of
the species, have already been provided by
[[Page 60962]]
proposing the area as critical habitat. For these reasons, then, we
believe that designation of critical habitat would have few, if any,
additional benefits beyond those that will result from continued
consultation for the presence of the species.
(2) Benefits of Exclusion
The benefits of excluding Santa Clara Pueblo from designated
critical habitat are significant. The proposed critical habitat
designation included approximately 714 ha (1,764 ac) of Rio Grande
woodland/shrubs (bosque) within the Pueblo boundaries. We believe that
the significant benefits that would be realized by forgoing the
designation of critical habitat on this area include: (1) The
furtherance of our Federal Trust obligations and our deference to the
Pueblo to develop and implement Tribal conservation and natural
resource management plans for their lands and resources within the Rio
Grande ecosystem, which includes the flycatcher and its habitat; (2)
the continuance and strengthening of our effective working
relationships with the Pueblo to promote the conservation of the
flycatcher and its habitat, including future surveys; (3) the allowance
for management and restoration in a WUI area that focuses on fire
prevention, and human health and safety, and yet addresses conservation
for the flycatcher; and (4) the provision of conservation benefits to
the Rio Grande ecosystem and the flycatcher and its habitat that might
not otherwise occur.
As discussed above, we met with Santa Clara Pueblo to discuss how
they might be affected by the designation of critical habitat. The
meeting with the Pueblo was conducted in accordance with Secretarial
Order 3206; the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59
FR 22951); Executive Order 13175; and the relevant provision of the
Departmental Manual of the Department of the Interior (512 DM 2). We
believe that the Pueblos should be the governmental entities that
manage and promote the conservation of the flycatcher on their lands.
During our meetings with the Pueblo, we recognized and endorsed these
resource management activities, including those relating to the Rio
Grande ecosystem. Much of our discussions centered on providing
technical advice/assistance to the Pueblo to develop, continue, or
expand natural resource management such that the designation of
critical habitat for the flycatcher would provide few if any benefits.
We have an effective working relationship with Santa Clara Pueblo,
which was established and has evolved from informal consultations. As
part of this cooperative working relationship, we provided technical
advice/assistance to the Pueblo, in respect to project activity, to
evaluate habitat for primary constituent elements and to develop
measures to conserve the flycatcher and its habitat on their lands.
Another demonstrable example of the trust and relationship that the
Service has with the Pueblo is the participation by some of their
staff. In 2005, in Service sponsored training for flycatcher surveys.
As part of maintaining a cooperative working relationship with the
Pueblo, conservation benefits, including habitat restoration and
enhancement have been possible. During our discussions with the Pueblo,
and reiterated in their written comments, (Santa Clara Pueblo, July 12,
2005), we were informed that critical habitat would be viewed as an
intrusion on their sovereign abilities to manage natural resources in
accordance with their own policies, customs, and laws. To this end, we
found that the Pueblo would prefer to work with us on a Government-to-
Government basis. For these reasons, we believe that our working
relationship with the Pueblo would be maintained if they are excluded
from the designation of critical habitat for the flycatcher. We view
this as a substantial benefit.
As mentioned above, the Pueblo is an important land manager in
respect to its land being a Wildland-Urban Interface. Its bosque needs
to be managed and restored with the focus of fire prevention and human
health and safety. The restoration and management information submitted
by the Pueblo documents their commitment to having meaningful
collaborative and cooperative work for the flycatcher and its habitat
continue within their lands as they address the need to manage for
human protection (Santa Clara Pueblo, July 12, 2005). These commitments
demonstrate the willingness of the Pueblo to work cooperatively with us
toward conservation efforts that will benefit the flycatcher. The
Pueblo has committed to several ongoing or future management,
restoration, enhancement, and survey activities and we believe that the
results of these activities will promote long-term protection and
conserve the flycatcher and its habitat within the Pueblo lands (Santa
Clara Pueblo, July 12, 2005). The benefits of excluding this area from
critical habitat will encourage the continued cooperation and
development of data-sharing and management plans. If this area is
designated as critical habitat, we believe it is unlikely that sharing
of information would occur.
Educational benefits will be provided to the Pueblo lands if they
are excluded from the designation, because their past and ongoing
restoration projects, with management goals, provide for conservation
benefits above any that would be provided by designating critical
habitat. For example, the educational aspects are likely greater for
this area if they are not included in the designation because the
Pueblo will continue to work cooperatively with the Service to restore
and enhance their Rio Grande floodplain with habitat that will
contribute to the recovery of the species. Surveys that are planned for
2006 for the presence or absence of flycatchers in their bosque will
add to recovery information and the participation by tribal biologist
in the survey process adds to educational benefits and conservation of
the species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
In summary, the benefits of including the Pueblo in critical
habitat are small, and are limited to minor educational benefits. The
benefits of excluding these areas from being designated as critical
habitat for the flycatcher are more significant, and include
encouraging the continued development and implementation of special
management measures such as surveys, enhancement, and restoration
activities that are planned for the future or are currently being
implemented. These activities and projects will allow the Pueblo to
manage their natural resources to benefit the Upper Rio Grande
management Unit and the flycatcher, without the perception of Federal
Government intrusion. This philosophy is also consistent with our
published policies on Native American natural resource management. The
exclusion of this area will likely also provide additional benefits to
the species that would not otherwise be available to encourage and
maintain cooperative working relationships. We find that the benefits
of excluding this area from critical habitat designation outweigh the
benefits of including this area.
We believe that exclusion of the Pueblo land will not result in
extinction of the species. The Pueblo has committed to protecting and
managing according to their tribal and cultural management plans and
natural resource management objectives. In short, the Pueblo has
committed to greater conservation measures on their land than would be
available through the
[[Page 60963]]
designation of critical habitat. With these natural resource measures,
we have concluded that this exclusion from critical habitat will not
result in the extinction of the flycatcher. Accordingly, we have
determined that the Pueblo lands of Santa Clara should be excluded
under subsection 4(b)(2) of the Act because the benefits of exclusion
outweigh the benefits of inclusion and will not cause the extinction of
the species.
As discussed in the ``Relationship of Critical Habitat to Tribal
Lands'' section of the Proposed Rule, in accordance with the
Secretarial Order 3206, ``American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act'' (June 5,
1997); the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR
22951); Executive Order 13175; and the relevant provision of the
Departmental Manual of the Department of the Interior (512 DM 2), we
have found that fish, wildlife, and other natural resources on tribal
lands are better managed under tribal authorities, policies, and
programs than through Federal regulation wherever possible and
practicable. Based on our experience, in many cases, designation of
tribal lands as critical habitat provides very little additional
benefit to threatened and endangered species. Conversely, such
designation is often viewed by tribes as an unwanted intrusion into
tribal self governance, thus compromising the government-to-government
relationship essential to achieving our mutual goals of managing for
healthy ecosystems upon which the viability of threatened and
endangered species populations depend. In making our final decision
with regard to tribal lands, we considered several factors including
our relationship with the Tribe or Pueblo and whether conservation
measures are in place for the southwestern willow flycatcher on their
lands.
San Juan Pueblo (Ohkay Owingue)
During the open comment period, we worked with San Juan Pueblo
(Pueblo) to consolidate information on their past, present, and future
voluntary measures, restoration projects, and management to conserve
the southwestern willow flycatcher and its habitat on their lands. We
have determined that the lands of this Pueblo, in the Upper Rio Grande
Management Unit, will not be designated as critical habitat. As
described below, we have reached this determination because the
benefits of excluding their lands from the final critical habitat
designation outweigh the benefits of designating their lands.
San Juan Pueblo, is located just north of Espanola in Rio Arriba
County, New Mexico, and adjoins the lands of Santa Clara Pueblo. The
Pueblo includes the southern or downstream end of the Velarde reach of
the Rio Grande, and comprises the largest contiguous area of generally
intact bosque, as well as the largest riparian area under the control
of a single landowner, within the Velarde reach. A total of about 17 km
(10.3 mi) are located within the Pueblo, (USGS 1:24,000 map, 7.5 minute
series, San Juan, NM), and over 445 ha (1100 ac) of riparian woodland,
or bosque, are still extant within the Pueblo boundaries.
In June of 1993, the flycatcher was documented on the west side of
the Rio Grande north of the NM 74 Bridge as a biological assessment was
being prepared for the proposed San Juan Bridge project. The project
proposed to replace an existing bridge and two-lane road section with a
newly located bridge and two-lane road with shoulders. Subsequent
evaluations indicated that a viable population of nesting flycatchers
was using the area.
The presence of the nesting flycatcher prompted the Pueblo to
restore the bosque habitat and associated wetlands for the flycatcher.
Habitat within the Pueblo is much degraded relative to historic
conditions for two main reasons: (1) River channelization that has
caused floodplain desiccation, cessation of overbank flooding, and
disruption of geomorphological processes; and (2) intensive invasion by
non-native trees, primarily Russian olives. The increasing frequency
and severity of fires in the Rio Grande bosque, accompanied by changes
in vegetation and the water regime, underscores the urgency of
restoration needs.
The San Juan Pueblo immediately began restoration/conservation
projects to benefit the flycatcher following the bridge project in
1994. Two acres of native riparian vegetation were planted on the
reclaimed old roadway; 0.1 ha (0.22 ac) of riparian vegetation were
planted adjacent to the new bridge; 1 acre of riparian woodland was
restored adjacent to the project; and, wetland restoration, which
included open water and saturated soils, was developed at three sites
encompassing 0.19 ha (0.46 ac), 0.14 ha (0.34 ac), and 0.06 ha (0.14
ac). Since 1999 the Pueblo has initiated or completed a variety of
restoration/conservation projects, including further wetland creation
and expansion, flycatcher habitat enhancement with vegetation and open
water, and removal of non-native vegetation with replacement of native
vegetation. These projects are funded through various programs of the
Environmental Protection Agency, Wildland Urban Interface/Collaborative
Forest Restoration Program, Endangered Species Act Collaborative
Program, and the State of New Mexico; they affect 301 ha (744 ac) of
riparian habitat on the Pueblo with direct and indirect benefits to the
flycatcher. The project implementations include conservation,
monitoring, and management for the flycatcher into the future. These
efforts contribute to the long term goals of recovery for the
flycatcher. In addition to the habitat work, the Pueblo supports
flycatcher surveys and nest monitoring on the Pueblo lands.
The long-term goal of riparian management on San Juan Pueblo is to
make significant additions of wetland areas for breeding flycatchers,
as well as implement innovative restoration techniques, decrease fire
hazards by restoring native vegetation, share information with other
restoration practitioners, utilize restoration projects in the
education of the tribal community and surrounding community, and
provide a working and training environment for the people of the
Pueblo. In 2004, the Pueblo sponsored a multi-agency/organization
riparian restoration conference on their lands. Their restoration
efforts and flycatcher conservation were highlighted at the conference.
As such, the Service and its partners gained valuable information about
restoring flycatcher habitat and management techniques that can be
applied to other riparian areas.
Based on their traditional beliefs and ties to the bosque area, the
Pueblo continues to protect, conserve, and restore the riparian habitat
and the species that utilize the habitat. As is demonstrated through
their projects, the Pueblo has invested a significant amount of ongoing
time and effort to address the needs and recovery of the flycatcher. In
addition, based on the long term goals of restoring additional wetland
and native habitat, the Pueblo has shown that it is managing its
resources to meet its traditional and cultural needs, while addressing
the needs of the flycatcher. Currently, the San Juan Pueblo
Environmental Affairs department employs nine Tribal members who work
on holistic habitat restoration and management, which includes
threatened and endangered species and their habitat.
(1) Benefits of Inclusion
There are few benefits of including San Juan Pueblo in the critical
habitat designation above those that will be
[[Page 60964]]
achieved through the implementation of the Pueblo's voluntary
conservation measures, restoration projects, and management. The
principal benefit of any designated critical habitat is that activities
affecting such habitat requires consultation under section 7 of the
Endangered Species Act if a Federal action is involved. Such
consultation would ensure that adequate protection is provided to avoid
destruction or adverse modification of critical habitat. However, if
adequate protection can be provided in another manner, such as those
provided by the Pueblo, the benefits of including any area in critical
habitat are insignificant.
Since 1993, the section 7 consultations involving San Juan Pueblo
for the flycatcher have been informal. Effects to the flycatcher from
these projects have been insignificant and discountable because
conservation measures have focused on restoration and management for
the flycatcher and its habitat. As stated in the environmental
assessment, the primary conservation value of the proposed critical
habitat segments is to sustain existing populations. The threshold for
reaching destruction or adverse modification on lands of the San Juan
Pueblo would likely require a reduction in the capability of the
habitat to sustain existing populations. Given that these lands are
managed for the benefit of the flycatcher, it is highly unlikely that
projects would be considered that would result in a depreciable
diminishment or long-term reduction of the capability of the habitat to
sustain existing populations. To the contrary, activities occurring on
these lands will provide benefits to the flycatcher by restoring,
improving, and protecting its habitat.
Another possible benefit is that the designation of critical
habitat can serve to educate the public regarding the potential
conservation value of an area, and this may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation value for certain species. Any information about the
flycatcher and its habitat that reaches a wide audience, including
other parties engaged in conservation activities, would be considered
valuable. However, the Pueblo is already working with the Service to
address the habitat needs of the species. Further, the Pueblo lands
were included in the proposed designation, which itself has reached a
wide audience, and has thus provided information to the broader public
about the conservation value of this area. Thus, the educational
benefits that might follow critical habitat designation, such as
providing information to the BIA or Pueblos on areas that are important
for the long-term survival and conservation of the species, have
already been provided by proposing these areas as critical habitat. For
these reasons, then, we believe that designation of critical habitat
would have few, if any, additional benefits beyond those that will
result from continued consultation for the presence of the species.
(2) Benefits of Exclusion
The benefits of excluding the Pueblo from designated critical
habitat are significant. The proposed critical habitat designation
included 10.3 mi (16.5 km) of river and over 445 ha (1100 ac) of
riparian woodland, or bosque, within the Pueblo boundaries. We believe
that the significant benefits that would be realized by forgoing the
designation of critical habitat on this area include: (1) The
furtherance of our Federal Trust obligations and our deference to the
Pueblo to develop and implement Tribal conservation and natural
resource management plans for their lands and resources within the Rio
Grande ecosystem, which includes the flycatcher and its habitat; (2)
the continuance and strengthening of our effective working
relationships with the Pueblo to promote the conservation of the
flycatcher and its habitat; (3) the allowance for continued meaningful
collaboration and cooperation in surveys and nest monitoring as we work
towards recovery of the species; and (4) the provision of conservation
benefits to the Rio Grande ecosystem and the flycatcher and its habitat
that might not otherwise occur.
Educational benefits will be provided to the Pueblo lands if they
are excluded from the designation, because their past and ongoing
restoration projects, with management goals, provide for conservation
benefits above any that would provided by designating critical habitat.
For example, the educational aspects are likely greater for this area
if they are not included in the designation because the Pueblo will
continue to work cooperatively toward the conservation of the
flycatcher, which will include continuing, initiating, and completing
flycatcher surveys/research and habitat restoration. As mentioned
above, the Pueblo has already actively contributed to the education of
multiple individuals about the conservations efforts and needs of the
flycatcher through their riparian restoration conference.
As discussed above, we met with San Juan Pueblo to discuss how they
might be affected by the designation of critical habitat. We have an
effective working relationship with the Pueblo, which was established
and has evolved from the earlier informal consultations. As part of our
cooperative working relationship, we provided technical advice/
assistance to the Pueblo to develop measures to conserve the flycatcher
and its habitat on their lands. San Juan Pueblo's past, present, and
on-going voluntary conservation measures in connection with their
Environmental Affairs Department, Federal/State habitat restoration
grants, and species conservation grants were summarized and submitted
to the Service (San Juan Pueblo, July 18/August 18, 2005). These
actions were conducted in accordance with Secretarial Order 3206; the
President's memorandum of April 29, 1994, ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951);
Executive Order 13175; and the relevant provision of the Departmental
Manual of the Department of the Interior (512 DM 2). We believe that
these Pueblos should be the governmental entities to manage and promote
the conservation of the flycatcher on their lands. During our meetings
with each of these Pueblos, we recognized and endorsed these resource
management activities, including those relating to the Rio Grande
ecosystem. Much of our discussions centered on providing technical
advice/assistance to the Pueblo to develop, continue, or expand natural
resource management such that the designation of critical habitat for
the flycatcher would provide few if any benefits.
We find that other conservation benefits are provided to the Upper
Rio Grande Management Unit and the flycatcher and its habitat by
excluding the Pueblo from the designation. For example, as part of
maintaining a cooperative working relationship with the Pueblo,
conservation benefits, including flycatcher surveys, nest and habitat
monitoring, and habitat restoration and enhancement have been possible.
During our discussions with the Pueblo, and reiterated in their written
comments, (San Juan Pueblo, July 18/August 18, 2005), we were informed
that critical habitat would be viewed as an intrusion on their
sovereign abilities to manage natural resources in accordance with
their own policies, customs, and laws. To this end, we found that the
Pueblo would prefer to work with us on a Government-to-Government
basis. For these reasons, we believe that our working relationship with
the Pueblo would be maintained if they are excluded from the
designation
[[Page 60965]]
of critical habitat for the flycatcher. We view this as a substantial
benefit.
Proactive voluntary conservation efforts will promote the recovery
of the flycatcher. As mentioned above, the Pueblo is an important land
manager in the Upper Rio Grande management Unit. The consultation
history, surveys, and conservation, restoration and management
information submitted by the Pueblo documents that meaningful
collaborative and cooperative work for the flycatcher and its habitat
will continue within their lands. These commitments demonstrate the
willingness of the Pueblo to work cooperatively with us toward
conservation efforts that will benefit the flycatcher. The Pueblo has
committed to several ongoing or future management, restoration,
enhancement, and survey activities that may not occur with critical
habitat designation. Therefore, we believe that the results of these
activities will promote long-term protection and conserve the
flycatcher and its habitat within the Pueblo lands. The benefits of
excluding this area from critical habitat will encourage the continued
cooperation and development of data-sharing and management plans. If
this area is designated as critical habitat, we believe it is unlikely
that sharing of information would occur.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
In summary, the benefits of including the Pueblo in critical
habitat are small, and are limited to insignificant educational
benefits. The benefits of excluding these areas from designation as
critical habitat for the flycatcher are significant, and include
encouraging the continued development and implementation of special
management measures such as monitoring, surveys, enhancement, and
restoration activities that the Pueblo plans for the future or is
currently implementing. These activities and projects will allow the
Pueblo to manage their natural resources to benefit the Upper Rio
Grande management Unit and the flycatcher, without the perception of
Federal Government intrusion. This philosophy is also consistent with
our published policies on Native American natural resource management.
The exclusion of this area will likely also provide additional benefits
to the species that would not otherwise be available to encourage and
maintain cooperative working relationships. We find that the benefits
of excluding this area from critical habitat designation outweigh the
benefits of including this area.
We have determined that exclusion of the Pueblo land will not
result in extinction of the species. The Pueblo is committed to
protecting and managing Pueblo lands and species found on those lands
according to their tribal and cultural management plans and natural
resource management objectives, which provide conservation benefits for
the species and its habitat. In short, the Pueblo is committed to
greater conservation measures on their land than would be available
through the designation of critical habitat. Accordingly, we have
determined that the Pueblo lands of San Juan should be excluded under
subsection 4(b)(2) of the Act because the benefits of exclusion
outweigh the benefits of inclusion and will not cause the extinction of
the species and we are excluding the Pueblo lands of San Juan from this
critical habitat designation.
Relationship of Critical Habitat to Partnerships and Conservation
Plans/Easements on Private Lands--Exclusions Under Section 4(b)(2) of
the Act
Verde Management Unit, AZ
Salt River Project Partnership at Horseshoe Lake
As discussed in the ``Summary of Changes from the Proposed Rule''
section above, we have determined that proposed critical habitat in the
conservation space of Horseshoe Lake on the Verde River in Maricopa
County, AZ will not be designated as critical habitat in this final
rule due to our partnership and the ongoing HCP negotiations with Salt
River Project (SRP). Salt River Project operates Horseshoe Dam and the
Tonto National Forest manages the ground. We have reached this
determination because we believe the benefits of excluding this segment
from the final critical habitat designation outweigh the benefits of
designating the lake as critical habitat.
Similar to Roosevelt Dam, flycatcher habitat in Horseshoe Lake is
created as a result of the storage and release of water behind and from
Horseshoe Dam, which exposes fine sediments across a broad/flat
floodplain. These conditions maintained with Verde River inflow
generates, through a vegetative successional process and timeframe,
abundant riparian habitat for the flycatcher. Periodic flooding or
inundation of the habitat can result in temporary losses or
unavailability of habitat and incidental take of flycatchers due to
operations. Over time though, water is needed to flow over the
conservation space to recharge groundwater, prevent dessication, and
re-establish vegetation. Therefore, in the long-term through this
cyclical and successional process, dam operations are expected to help
support the existence of flycatcher habitat within Horseshoe Lake.
Flycatcher habitat and territories at Horseshoe Lake have improved over
the last three years, growing from 6 territories in 2003, to 11 in
2004, and now approximately 27 territories in 2005 (R. Ockenfels, AGFD,
e-mail).
Salt River Project and the Service have an ongoing partnership of
working toward conserving federally-listed species that has existed for
nearly two decades. As examples of our partnership that extends to a
variety of threatened and endangered species, SRP has voluntarily
worked with the Service toward bald eagle recovery since the 1980s.
They have participated in the inter-agency Southwestern Bald Eagle
Management Committee, and provided annual helicopter flights to assess
annual eagle productivity, conduct winter counts, detect new breeding
areas, and access remote sites to band eaglets. In some instances they
have also volunteered helicopter time to rescue bald eagles in life-
threatening situations or take a rehabilitated eagle back to its nest
area quickly. SRP has further donated funds to hire Arizona Bald Eagle
Nestwatchers in order to protect bald eagles at nest sites. SRP has
also produced a variety of bald eagle educational materials (brochures,
posters, etc.) and atlases to track nest and territory locations.
Additionally, SRP has supported California condor recovery by providing
helicopter transportation of birds and biologists to remote locations.
SRP has also worked with the Service's law enforcement and other local
power companies toward improving reporting of bird electrocutions,
identifying locations of mortality, and retrofitting transmission poles
to protect birds.
Salt River Project has also been active in developing HCPs for
southwestern willow flycatchers. Together SRP and the Service developed
a comprehensive plan that allows for the protection and persistence of
southwestern willow flycatchers at Roosevelt Lake, and acquisition of
properties to mitigate effects of water storage (see Roosevelt HCP
portion of this Exclusion section). Bald eagles and yellow-billed
cuckoos were also included in this HCP.
At Horseshoe Lake, SRP has committed resources to manage the lake
not only for water storage, but also to retain habitat for southwestern
willow flycatchers. Unlike some other reservoirs, because of the
ability to store water downstream in Bartlett Lake, SRP
[[Page 60966]]
has more flexibility with how water is stored and released. Since the
discovery of southwestern willow flycatchers at Horseshoe Lake, SRP has
engaged in flycatcher and habitat surveys and has worked with the
Service to determine ways in which the reservoir can be managed to
balance the needs of the flycatcher and its purpose for water storage.
This has been an ongoing two-year effort that will be formalized in a
HCP, resulting in improved management of the dam to ensure long-term
southwestern willow flycatcher habitat persistence, combined with off-
site habitat acquisition. We published our notice of intent to conduct
NEPA, prepare an Environmental Impact Statement, and hold scoping
meetings related to the Horseshoe/Bartlett HCP in June 2003 (68 FR
36829). Since scoping, the Service and SRP continue to develop and
refine plans that solidify development, maintenance, and protection of
flycatcher habitat at Horseshoe Lake and conservation measures for
other species involved in the Plan. The Horseshoe/Bartlett HCP, once
completed, will result in conservation for bald eagles, yellow-billed
cuckoos, and federally-listed and non-listed native fish. Collectively,
our partnership in all of these areas has resulted in benefits that
have contributed to immediate and long-term benefits to the
conservation and recovery of protected species.
(1) Benefits of Inclusion
SRP has determined that any incidental take as a result of dam
operations is appropriately authorized under section 10(a)(1)(B) of the
Act (i.e., Habitat Conservation Plan). Therefore, the eventual
finalization of a HCP and issuance of this permit will commit an
applicant (i.e., SRP) to conduct southwestern willow flycatcher
conservation activities, and minimize and/or mitigate to the maximum
extent practicable for any incidental take. In order to issue this
permit, the Service would have to conclude that the HCP would not
jeopardize the southwestern willow flycatcher. Because southwestern
willow flycatchers already exist at Horseshoe Lake, the scope of our
analysis would include flycatcher habitat.
There is a Federal nexus for Tonto National Forest activities at
Horseshoe Lake, because once the lake recedes, the Forest Service
manages the dry lake bottom. Therefore, if the Forest carried out,
funded, or permitted any activities that affected critical habitat at
Horseshoe Lake, it would require consultation under section 7 of the
Act. Forest Service management of activities that can reduce quality of
flycatcher habitat such as cattle grazing and recreation at Horseshoe
Lake helped foster habitat development since the lake receded due to
drought in the mid-1990s, and since southwestern willow flycatcher
territories were discovered at Horseshoe in 2002, no Forest Service
projects have been proposed that have adversely affected southwestern
willow flycatchers or their habitat. Because of this lake's importance
for water storage and because water periodically floods the entire
area, there is no reason to anticipate that the lake bottom will be
anything but open space. Due to the periodic water flow, it limits the
extent this lake bottom can be managed for any other activities.
Because southwestern willow flycatchers currently occupy Horseshoe
Lake, section 7 consultation and analysis of effects to habitat already
occurs, leaving few additional benefits to the designation of critical
habitat.
Designation of critical habitat also provides educational benefits,
including informing project proponents (in this case SRP and the Forest
Service) of areas that are important to the conservation of listed
species and providing important information on those habitats and their
primary constituent elements. Because SRP and the Forest Service are
the water and land managers, they have conducted and contracted
surveys, nest monitoring, and vegetation monitoring for the
southwestern willow flycatcher at Horseshoe Lake. Therefore, the
potential designation of critical habitat at Horseshoe Lake would not
provide this educational benefit because both SRP and the Forest
Service already know the birds are present and are studying its habitat
and breeding locations. SRP and the Forest are also already aware that
Horseshoe Lake has a high concentration of flycatchers, and are
important to conservation goals on the Verde River Management Unit. In
addition, this area was included in our proposed designation and is
discussed in this final designation as an area essential to the
conservation of the flycatcher.
(2) Benefits of Exclusion
The benefits of excluding lands within Horseshoe Lake area from
critical habitat designation include recognizing the value of
conservation benefits associated with a partnership and a developing
HCP; encouraging actions that benefit multiple species; encouraging
local participation in development of new HCPs; and facilitating the
cooperative activities provided by the Service to groups such as SRP.
Additionally, our existing partnership and the integration of Federal
land management will generate a consistent management approach at
Horseshoe Lake.
The partnership and cohesive management at Horseshoe Lake will
maintain habitat for southwestern willow flycatchers for the long-term.
This partnership will culminate in development, finalization, and
implementation of an HCP that will provide long-term conservation
benefits. In addition to maintaining habitat for the long-term at
Horseshoe Lake, this partnership and subsequent HCP will include the
development of status and distribution information needed to guide
conservation efforts and assist in species conservation outside the HCP
planning area, and the creation of innovative solutions to conserve
species that can be applied wherever similar needs exist, irrespective
of land ownership. The partnership with SRP also facilitates other
cooperative activities with other similarly situated industry,
communities, and landowners. Continued cooperative relations with SRP
and their stakeholders (i.e., City of Phoenix) are expected to
influence other future partners and lead to greater conservation than
would be achieved through multiple section 7 consultations.
Non-Federal landowners or dam operators such as SRP are motivated
to work with the Service collaboratively to develop voluntary HCPs
because of the regulatory certainty provided by an incidental take
permit under section 10(a)(1)(B) of the Act with the No Surprises
Assurances. This collaboration often provides greater conservation
benefits than could be achieved through strictly regulatory approaches,
such as critical habitat designation. The conservation benefits
resulting from this collaborative approach are built upon a foundation
of mutual trust and understanding. It takes considerable time and
effort to establish this foundation of mutual trust and understanding
which is one reason it often takes several years to develop a
successful HCP. Already, the Horseshoe/Bartlett HCP development process
has exceeded two years. Excluding this area from critical habitat would
help promote and honor that trust by providing certainty for permittees
that once appropriate conservation measures have been agreed to that
additional consultation will not be necessary.
In discussions with the Service, SRP and their stakeholders have
indicated they view critical habitat designation at Horseshoe Lake as
unwarranted, and undermines the regulatory certainty that
[[Page 60967]]
would be provided by their expected incidental take permit and the No
Surprises assurances. There is a concern by SRP and stakeholders that
designation of critical habitat at Horseshoe Lake has the potential to
threaten the storage and delivery of water to the greater Phoenix
metropolitan area (described in the Economic Analysis). Should this
ever come to pass, the results could be significant, however we do not
believe that scenario is reasonably foreseeable. Having applicant's
understand the Service's commitment will encourage continued
partnerships with these permittees that could result in additional
conservation plans or additional lands enrolled in HCPs. By excluding
areas where our partnerships have been established following years of
collaborative efforts that has resulted, and will continue to result in
habitat protection for the flycatcher, preserves these partnerships and
promote more effective conservation actions in the future.
A benefit of excluding Horseshoe Lake from critical habitat
designation includes relieving additional regulatory burden and costs
associated with the preparation of portions of section 7 documents
related to critical habitat. While the cost of adding these additional
sections to assessments and consultations to the Service and the Forest
Service is relatively minor, there could be delays which can generate
real costs to some project proponents. Since critical habitat is only
proposed for occupied areas already subject to section 7 consultation
and a jeopardy analysis, it is anticipated this reduction would be
minimal.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
In summary, we find that the benefits of designating critical
habitat for the southwestern willow flycatcher at Horseshoe Lake are
small in comparison to the benefits of exclusion. In making this
finding, we have weighed the benefits of including Horseshoe Lake as
critical habitat, and compared them to the benefits of these lands
without critical habitat, but with management based on our existing
partnership (with a future HCP) and management by the Forest Service.
Excluding Horseshoe Lake would reduce some additional administrative
effort and cost during the consultation process pursuant to section 7
of the Act. Excluding Horseshoe Lake would continue to help foster
development of future partnerships and HCPs and strengthen our
relationship with permittees and stakeholders. Because there is no
Federal nexus for Horseshoe Dam operations, critical habitat, in and of
itself, provides little benefit to Horseshoe Lake flycatcher habitat
from Horseshoe Dam operations. Our 4(b)(8) determination in this final
rule indicated that we did not believe dam operations, like Roosevelt
Dam, would result in adverse modification. Horseshoe Dam operations,
similar to Roosevelt Dam, will continue to foster the maintenance,
development, and necessary recycling of habitat for the flycatcher in
the long-term due to the dynamic nature of water storage and delivery.
To date, Forest Service management has fostered the development,
presence, and protection of flycatcher habitat. Because the lake bottom
is intended for water storage, we believe there is virtually no risk of
development or extensive land-use by the Forest Service that would be
expected to result in adverse modification. Excluding Horseshoe Lake
eliminates the concern of permittees and stakeholders of the possible
risk to water storage and delivery to the greater Phoenix metropolitan
area. This subsequently eliminates any uncertain risk of significant
economic costs due to loss of water storage capabilities.
We have, therefore, concluded that the current partnership and
management established with SRP for flycatcher habitat, existing Forest
Service management fostering flycatcher habitat, and conservation
commitment to flycatcher habitat, outweigh those benefits that would
result from the area being included in the designation. We have
therefore excluded these lands from the final critical habitat
designation pursuant to section 4(b)(2) of the Act.
We also find that the exclusion of Horseshoe Lake will not lead to
the extinction of the species, nor hinder its recovery. The periodic
fluctuation in Horseshoe Dam operation, the maintenance of the dry lake
bottom as open-space, and continued appropriate Forest Service
management will ensure the long-term persistence and protection of
flycatcher habitat at Horseshoe Lake.
San Luis Valley Management Unit, CO
San Luis Valley Partnership and Regional Habitat Conservation Plan
As discussed in the ``Summary of Changes from the Proposed Rule''
section above, we have determined that all proposed critical habitat in
the San Luis Management Unit, CO (Rio Grande and Conejos River), will
not be designated as critical habitat in this final rule due to our
past and future conservation partnerships within the San Luis Valley,
as discussed below. We have reached this determination because we
believe the benefits of excluding this unit from the final critical
habitat designation outweigh the benefits of designating the unit as
critical habitat.
A partnership has been formed to develop a HCP in the San Luis
Valley of Colorado. The State of Colorado received a $380,000 HCP
Section 6 Planning Grant on behalf of the Rio Grande Water Conservation
District in 2004 to develop the HCP for five counties, two cities, the
State of Colorado, and 14 other smaller communities. In September 2005
the State received another $120,000 Section 6 grant to draft NEPA
documents and finalize the HCP. A preliminary draft of the San Luis
Valley Regional HCP has been submitted to the Service for review. The
HCP as proposed would cover nearly 809,300 ha (2 million ac) and 241 km
(150 mi) of habitat for the southwestern willow flycatcher, bald eagle,
and yellow-billed cuckoo. The acreage covered by the HCP encompasses
the entire Colorado portion of the San Luis Valley Management Unit, as
described in the Southwestern Willow Flycatcher Final Recovery Plan,
and extends well beyond the two stream segments in the Rio Grande and
Conejos Rivers that we proposed as critical habitat.
The San Luis Valley has a strong tradition of locally supporting
issues that provide for long-term conservation of natural resources.
For instance, entities within the Valley fought a strong effort on two
occasions by governmental entities from larger cities (Colorado Springs
and Aurora, CO) to the north to withdraw water from the Valley's
underground aquifer and have it pumped to the larger cities. A
subsequent result of this effort was the expansion of the Service's
National Wildlife refuge lands in the Valley (now referred to as the
Baca Refuge under the administration of the Alamosa-Monte Vista Refuge)
and expansion of the adjacent Great Sand Dunes National Park and
Preserve, actions supported by the local community. These efforts have
facilitated strong, meaningful, and enduring conservation partnerships
with the Service.
The Valley has other strong conservation efforts that are locally
driven: such as the Rio Grande Headwaters Restoration Project, Alamosa
River Restoration Project, Colorado Wetlands Initiative--San Luis
Valley Focus Area Group, Rio Grande Natural Area, and Saguache Creek
Corridor Project. All these efforts, described in further detail below
to demonstrate the history of conservation
[[Page 60968]]
efforts in the San Luis Valley, are within the HCP planning area and
will provide conservation benefits to the southwestern willow
flycatcher, bald eagle, and yellow-billed cuckoo, as well as other
wildlife within riparian and wetland communities.
The Rio Grande Headwaters Restoration Project objective is to
implement a master restoration plan for approximately 64 km (40 mi) of
the upper Rio Grande. This project presents a plan to enhance the
adequacy of the Rio Grande to fulfill historical function such as
maintenance of riparian habitat and channel capacity, as well as
meeting Rio Grande Compact commitments. The Alamosa River Restoration
Project has $5 million in funds to restore and enhance the Alamosa
River. This project's efforts include stream bank stabilization,
boulder placement, vegetation plantings, and fencing of the riparian
area to restore riparian function, The Colorado Wetlands Initiative--
San Luis Valley Focus Area Group is a coalition of conservation
organizations, private landowners, and State and Federal agencies that
have contributed to several conservation projects that help protect
southwestern willow flycatcher habitat. The Rio Grande Water
Conservancy District is providing strong political support for
establishment of the Rio Grande Natural Area, currently before
Congress. The 33 mile stretch of the Rio Grande from the Alamosa
National Wildlife Refuge to the New Mexico border will continue to
managed by the Bureau of Land Management and private landowners as a
Natural Area. If enacted, the Natural Area would establish an advisory
council that would develop a plan and provide a framework for the
conservation of riparian habitat. The Saguache Creek Corridor Project
has been awarded a $3.7 million grant by the Colorado Cattleman's
Agricultural Land Trust to assist landowners in the perpetual
protection of conservation easements. These easements would permanently
protect the agricultural, wildlife, and scenic values of this riparian
corridor that contains significant patches of willow.
(1) Benefits of Inclusion
The draft environmental assessment found that minor changes through
section 7 consultations, due to a critical habitat designation, may
occur in the form of additional discretionary conservation
recommendations to reduce impacts to the primary constituent elements.
Thus, if the areas proposed in the San Luis Valley were designated as
critical habitat, there may be some benefit through consultation under
the adverse modification standard for federally sponsored actions. But,
we believe this benefit is minimal since these locations are currently
occupied by breeding flycatchers, dispersing young-of-the year
flycatchers, migrating, foraging, and non-breeding flycatchers; thus,
effects to flycatcher habitat are already considered in consultations
under section 7 of the Act. In addition, the past history of
conservation efforts, as well as efforts and funding to date in the
development of the preliminary HCP, demonstrate the commitments of the
San Luis Valley to provide for the conservation of the flycatcher and
the growth and persistence of its habitat. For these reasons and
because formal consultations in these proposed areas of critical
habitat, as explained elsewhere in this rule, will likely result in
only discretionary conservation recommendations due to existing
appropriate management, we believe there is an extremely low
probability of mandatory elements (i.e., reasonable and prudent
alternatives) arising from formal section 7 consultations that include
consideration of designated critical habitat for the southwestern
willow flycatcher.
With regard to the preliminary HCP, in order for the Service to
issue this permit regardless of whether critical habitat is designated,
we would have to conclude that the HCP would not jeopardize the
southwestern willow flycatcher. However, because southwestern willow
flycatchers already exist in these proposed critical habitat areas in
the San Luis Valley, as noted above, the scope of our analysis pursuant
to section 7 would also include effects to flycatcher habitat;
therefore, we believe the additional designation of critical habitat
would provide little benefit when we conduct our inter-Service
consultation on the anticipated issuance of this HCP.
We have also determined through our review of the preliminary San
Luis Valley Regional HCP that it provides for the development and
accumulation of important biological information that would otherwise
be unavailable and that will benefit the flycatcher and many other
species. Specifically, we find that it will educate many people
regarding the role of geology and topography in meeting the needs of
wildlife in these stream habitats, and understanding the ecological
processes that develop, maintain, or degrade these habitats. This HCP
also provides conservation benefits that address and benefit multiple
species and environmental concerns across broad landscapes, regardless
of occupancy by southwestern willow flycatcher and other covered
species. The HCP is anticipated to provide conservation beyond what
could be achieved through a parcel-by-parcel avoidance of take, or
through multiple section 7 consultations due to a diversity of actions
undertaken through the HCP, including proactive restoration and
remediation of existing problem areas. The HCP will serve as a
foundation for landscape conservation planning on adjacent lands and
allow longer-range planning, all of which would benefit the
southwestern willow flycatcher, bald eagle, yellow-billed cuckoo and
other riparian associated wildlife. For the reasons discussed above and
because formal consultation on the issuance of the HCP would likely
result in only discretionary conservation recommendations due to
beneficial nature of the HCP, we believe there is an extremely low
probability of mandatory elements (i.e., reasonable and prudent
alternatives) arising in this case. Therefore, as noted above, we
believe the designation of critical habitat would provide little
benefit as a result of our section 7 analysis on the anticipated
issuance of this HCP.
There may also be non-regulatory and educational benefits to
conservation of the flycatcher, including informing the public of areas
important for conservation of the species, and focusing attention on
and awareness of those areas. In Sierra Club v. Fish and Wildlife
Service, 245 F.3d 434 (5th Cir. 2001), the Fifth Circuit Court of
Appeals stated that the identification of habitat essential to the
conservation of the species can provide informational benefits to the
public, State and local governments, scientific organizations, and
Federal agencies. The court also noted that heightened public awareness
of the plight of listed species and their habitats may facilitate
conservation efforts. However, we believe that there would be little
educational and informational benefit gained from including proposed
critical habitat in the Rio Grande and Conejos Rivers of the San Luis
Valley within the designation, because they were included in the
proposed rule as essential habitat, are discussed in this final rule,
and have been the focus of conservation related activities for a number
of years. Consequently, we believe that the informational benefits are
already provided even though these areas are not designated as critical
habitat.
(2) Benefits of Exclusion
The benefits of excluding lands within the proposed critical
habitat area of the Rio Grande and Conejos Rivers, that are encompassed
by the San Luis Valley HCP, from critical habitat
[[Page 60969]]
designation include recognizing the value of conservation benefits
associated with HCP actions; encouraging actions that benefit multiple
species; encouraging local participation in development of new HCPs;
and facilitating the cooperative activities provided by the Service to
landowners, communities, and counties in return for their adoption and
support of the HCP. Additionally, the existing partnerships and the
integration of Federal land management with non-Federal land management
will enhance a consistent management approach on a landscape level.
If issued, the San Luis Valley HCP will help promote flycatcher
recovery through the development and implementation of the HCP, as
noted above, and by providing for other important conservation
benefits, including the development of important biological information
needed to guide conservation efforts and assist in species conservation
within and outside the HCP planning area. In general, HCPs also aid in
the creation of innovative solutions to conserve species that can be
applied wherever similar needs exist, irrespective of land ownership.
If issued, the San Luis Valley HCP can also facilitate other
cooperative activities with other similarly situated landowners.
Continued cooperative relations with San Luis Valley citizens are
expected to influence other future partners and lead to greater
conservation than would be achieved through multiple section 7
consultations. We anticipate participating in a scientific advisory
team that oversees the HCP, and allows for the sharing of information
and development of relationships with a number of other entities,
including Tribes.
Failure to exclude these two stream segments in the San Luis Valley
could be a disincentive for other entities contemplating partnerships,
as it would be perceived as a way for the Service to impose additional
regulatory burdens once conservation strategies have already been
agreed to or are underway, as is the case here with the development of
the San Luis Valley HCP.
Nonfederal landowners are motivated to work with the Service
collaboratively to develop HCPs because of the regulatory certainty
provided by an incidental take permit under section 10(a)(1)(B) of the
Act with the No Surprises Assurances. This collaboration often provides
greater conservation benefits on nonfederal lands than could be
achieved through strictly regulatory approaches, such as critical
habitat designation. The conservation benefits resulting from this
collaborative approach are built upon a foundation of mutual trust and
understanding. It takes considerable time and effort to establish this
foundation of mutual trust and understanding which is one reason it
often takes several years to develop a successful HCP. Excluding these
stream segments from critical habitat would help promote and honor that
trust and thereby our partnership by providing greater certainty for
the HCP applicant.
In discussions with the Service, HCP permittees and applicants have
indicated they view critical habitat designation as an unwarranted and
unwelcome intrusion on their property, and an erosion of the regulatory
certainty that would be provided by their incidental take permit and
the No Surprises Assurances. Having applicant's understand the
Service's commitment will encourage continued partnerships that could
result in additional conservation plans or additional lands enrolled in
HCP's and, in this case, demonstrate the Service's commitment to
continue to work in cooperation with these entities for the mutual
benefit of the flycatcher.
Our collaborative relationships with an HCP applicant clearly make
a difference in our partnership with the numerous landowners of the San
Luis Valley and influence our ability to form partnerships with others.
Concerns over added regulation potentially imposed by critical habitat
harms this collaborative relationship by leading to distrust. Our
experience has demonstrated that successful completion of one HCP has
resulted in the development of other conservation efforts and HCPs with
other landowners. We believe this HCP will result in implementation of
conservation actions that we would be unable to accomplish otherwise
and by excluding this area we preserve our partnership and promote more
effective conservation actions in the future.
Additional benefits from excluding these two stream segments from
critical habitat designation includes relieving landowners,
communities, and counties from any additional regulatory burden and
costs associated with the preparation of section 7 documents related to
critical habitat. While the costs of these additional documents to the
Service is relatively minor, there could be delays which generate very
real costs to private landowners in the form of opportunity costs as
well as direct costs. In addition, stigma costs are associated with the
regulatory designation of critical habitat. There would be reduced
costs and staffing requirements as consultations would be more
extensive with a critical habitat designation thereby reducing costs
associated with producing Biological Assessments and Biological
Opinions. Since critical habitat is only proposed for occupied areas,
already subject to a jeopardy analysis, it is anticipated this
reduction would be minimal. If issued, the HCP will provide substantial
protection to the ecosystem as a whole, which we believe will
contribute to the conservation of the flycatcher and other covered
species. This preliminary HCP covers a large area that is outside of
our proposed stream segments, including areas not currently occupied by
the flycatcher. Including these areas as part of the HCP can contribute
to southwestern willow flycatcher recovery by including riparian
habitats suitable for future occupancy by southwestern willow
flycatcher.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
In summary, we believe that the benefits of excluding these stream
segments based upon our past and current partnership, including the
current efforts towards development and issuance of the preliminary San
Luis Valley HCP, from the designation of southwestern willow flycatcher
critical habitat outweighs the benefits of their inclusion. We find
that including these two stream segments, would result in very minimal,
if any additional, benefits to the southwestern willow flycatcher, as
explained above. However, including them would require additional
administrative effort and cost during the consultation process pursuant
to section 7 of the Act. Although the additional effort to consider and
analyze the affects of various projects on critical habitat may not be
substantial, it would require the citizens of the San Luis Valley and
the Service to use additional resources that may otherwise be used
towards beneficial projects for wildlife throughout the San Luis
Valley.
We also find that the exclusion of these lands will not lead to the
extinction of the species, nor hinder its recovery because the
management emphasis of the San Luis Valley in general and specifically
through the preliminary HCP and the various partners within the San
Luis Valley is to protect and enhance riparian habitat, which the
southwestern willow flycatcher depends on. This emphasis on conserving
riparian habitat will ensure the long-term conservation of the
southwestern willow flycatcher and other riparian species and
contribute to flycatcher recovery by conserving
[[Page 60970]]
riparian habitat that is not currently occupied.
Owens Management Unit, CA
Los Angeles Department of Water and Power Conservation Strategy
As discussed in the ``Summary of Changes from the Proposed Rule''
section above, we have determined that the Owens Management Unit, CA
(OMU) in the Basin and Mojave Recovery Unit will not be designated as
critical habitat in this final rule. We have reached this determination
because we believe the benefits of excluding the Owens River from the
final critical habitat designation outweigh the benefits of designating
the Owens River as critical habitat.
The OMU, which was proposed as critical habitat, includes a 111 km
(69 mi) long reach of the Owens River and a 1.4 km (0.9 mi) long reach
of Rock Creek in Inyo and Mono Counties, CA. The Owens River segment is
bounded on the upstream end by a point that is 0.8 km (0.5 mi) east of
the Long Valley Dam, and on the downstream end by a point that is 6.4
km (4 mi) north of Tinemaha Reservoir. The Rock Creek segment consists
of the downstream-most portion of the creek in Birchim Canyon before it
intersects the Owens River. All of the land within the OMU is owned and
managed by the Los Angeles Department of Water and Power.
On July 12, 2005, the Service and the Los Angeles Department of
Water and Power signed a memorandum of understanding (MOU) which
included a southwestern willow flycatcher conservation strategy
designed to proactively manage flycatchers in the OMU. The conservation
strategy addresses three elements, livestock grazing, recreational
activities, and wild land fires that have the potential to adversely
affect the southwestern willow flycatcher in the OMU. The conservation
strategy provides specific measures that: (1) are designed to create
suitable breeding habitat for the southwestern willow flycatcher, and
(2) avoid and minimize potential adverse effects such as the
degradation or loss of habitat that may be associated with grazing
activities, recreational activities, and wild land fires. The document
also states the Los Angeles Department of Water and Power will
implement the aforementioned measures with the goal of promoting the
establishment of 50 southwestern willow flycatcher territories in the
OMU; this number of territories was identified in the Southwestern
Willow Flycatcher Recovery Plan (USFWS 2002), and reflects the number
of territories the Service believes is necessary to recover this
species in that area. The finalized MOU and conservation strategy
signed by the Los Angeles Department of Water and Power were received
by the Service during the public comment period which ended July 18,
2005.
The MOU provides a commitment by the Los Angeles Department of
Water and Power to implement the conservation strategy for a minimum of
10 years, and also contains a clause stating that the MOU will become
null and void if all or any part of the OMU is designated as critical
habitat for the southwestern willow flycatcher. At the end of the 10-
year period, the Service and LADWP will conduct a joint evaluation to
determine if there is a need to renew the conservation strategy for an
additional 10-year period. If it is deemed necessary, the renewal of
the conservation strategy will provide assurances that the measures to
conserve the habitat of the southwestern willow flycatcher will
continue. In the event that the conservation strategy is renewed, the
Service and LADWP will collectively determine if new measures need to
be implemented to promote the establishment and persistence of
additional habitat for the southwestern willow flycatcher.
(1) Benefits of Inclusion
As of the date of this final rule, the Service has not conducted
any formal or informal consultations that involve the southwestern
willow flycatcher in the Owens Valley area since this species was
listed as endangered in 1995. We also note that staff from the Los
Angeles Department of Water and Power have stated that, with regard to
the OMU, they have not received or required any Federal permit,
license, authorization, or funding to complete projects in this area,
and they do not anticipate there will be a project that will create a
Federal nexus within the foreseeable future. The lack of previous
section 7 consultations during the past 10 years, and the expectation
that there will be no future project within the OMU with a Federal
nexus leads us to believe that critical habitat designation will create
relatively few benefits for the southwestern willow flycatcher in this
area.
Designation of critical habitat also provides educational benefits,
including informing private landowners of areas that are important to
the conservation of listed species and providing important information
on those habitats and their primary constituent elements. Because the
Los Angeles Department of Water and Power is the sole owner of the land
within the OMU, and they have either conducted, or contracted surveys
for the southwestern willow flycatcher, the agency is aware the species
occurs on their property. Therefore, the potential designation of
critical habitat in the OMU would not provide this educational benefit
because the Los Angeles Department of Water and Power already knows the
species is present on their property. Los Angeles Department of Water
and Power staff is also already aware that their property has a
relatively high concentration of southwestern willow flycatchers in
relation to other areas outside of the Owens Valley area, and this
species has specific habitat requirements that require proactive
management. Additionally, these lands are identified in our proposed
and final rule as areas essential to the conservation of the
southwestern willow flycatcher.
(2) Benefits of Exclusion
The development of a MOU between the Service and another entity is
an activity that both parties must voluntarily agree to; as such, both
entities negotiate the terms and conditions of the document. In the
case of the MOU involving the OMU, the Los Angeles Department of Water
and Power agreed to implement the conservation strategy to benefit the
southwestern willow flycatcher, provided that critical habitat in the
Owens Valley is not designated.
The Service has reviewed the measures in the conservation strategy,
and we believe the implementation of these measures will create a
tangible and quantifiable benefit within the 19,830 ha (49,000 ac) area
that constitutes the OMU. For example, the grazing prescriptions will
enhance the survival of riparian shrubs and trees during their first
years of growth and minimize adverse effects to young age classes of
riparian willow and cottonwood trees, thereby allowing the riparian
community to develop dense thickets of trees and shrubs that are likely
to be used by the southwestern willow flycatcher. The regulation of
recreational activities conducted by the public within the OMU will act
to protect and/or restore riparian areas by minimizing erosion,
reducing the number of trails that exist or could develop, and
improving bank stability. Unintentional fires in riparian areas will be
given high priority for fire suppression. If fires affect significant
portions of the Owens River, Los Angeles Department of Water and Power
staff will pursue management actions that facilitate a more rapid
recovery of the affected riparian habitats. For
[[Page 60971]]
example, flows in the Owens River, authorized grazing activities, and
recreational use may be adjusted to facilitate the recovery of burned
riparian habitats.
The conservation strategy also provides a commitment by the Los
Angeles Department of Water and Power and the Service to review the
conservation strategy and management activities to determine what
mutually agreeable protective measures could be further implemented/
added to the existing conservation strategy. If such additional
protective measures are needed, the Los Angeles Department of Water and
Power will identify these measures in annual reports that will be sent
to the Service, and implement the new measures as soon as possible. As
stated above, the commitment to conduct the aforementioned activities
is based on Los Angeles Department of Water and Power's desire to work
with the Service and reduce the need to designate critical habitat in
Owens Valley.
We also note the development of the MOU and conservation strategy
for the southwestern willow flycatcher in the OMU has been a
collaborative effort that has promoted the development of a positive
relationship between the Service and the Los Angeles Department of
Water and Power. The Service believes the collaborative relationship
between the two agencies will be especially useful in the future
because Los Angeles Department of Water and Power staff have indicated
they will likely work with the Service on additional partnership
efforts to conserve fish and wildlife resources within the next year or
two. Such documents are more easily completed when the Service and an
applicant have a collaborative relationship, and would benefit a
variety of listed species in the Owens Valley area.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We find that the benefits of designating critical habitat within
the OMU are relatively small in comparison to the benefits of
exclusion. In making this finding, we have weighed the benefits of
including these lands as critical habitat without the MOU and
conservation strategy against the exclusion of these lands from
critical habitat and the implementation of the MOU and conservation
strategy. We have concluded that the benefits of the MOU and
conservation strategy far outweigh those that would result from the
designation. We have therefore excluded these lands from the final
critical habitat designation pursuant to section 4(b)(2) of the Act.
We believe that exclusion of these lands will not result in
extinction of the species, as they are considered occupied habitat. Any
actions that might adversely affect the southwestern willow flycatcher,
regardless of whether a Federal nexus is present, must undergo a
consultation with the Service under the requirements of section 7 of
the Act or receive a permit from us under section 10. The southwestern
willow flycatcher is protected from take under section 9. The
exclusions leave these protections unchanged from those which would
exist if the excluded areas were designated as critical habitat. In
addition, as discussed above, there are a substantial number of active
conservation measures underway for the species, which provide greater
conservation benefits than would result from a designation. Consistent
with the recommendations in the Recovery Plan (USFWS 2002), LADWP will
implement measures and activities with the goal of promoting the
establishment of 50 southwestern willow flycatcher territories in the
Owens Management Unit. There is accordingly no reason to believe that
this exclusion would result in extinction of the species.
Middle Rio Grande Management Unit, NM
Rio Grande Valley State Park (City of Albuquerque)
Within the Middle Rio Grande Management Unit lies the Rio Grande
Valley State Park (Park), an area proposed as critical habitat for the
flycatcher. The Park consists of the entire wooded riparian forest and
associated floodway of the Rio Grande within Bernalillo County, NM,
with minor exceptions (e.g., Pueblo lands, private lands, land within
the Village of Corrales, and bridge rights-of-way). The Park is
approximately 1,756 ha (4,340 ac), of which 1,060 ha (2,620 ac) are
riparian forest (bosque) and 696 ha (1,720 ac) are floodway of the Rio
Grande. Its outer boundaries are service roads that run along the land-
side of several main riverside drains. The City of Albuquerque (City)
has managed the Park since 1983 under legal authority granted by the
State of New Mexico.
The City is designated by State law to manage the Park ``in such a
manner as to protect and enhance the scenic and natural values of the
Rio Grande,'' NMSA Sec. 16-4-14 (D). It has done so since 1983
pursuant to a series of conservation-based management plans through the
City's Open Space Division. In 1987 the City wrote a Management Plan
emphasizing bosque management to conserve, preserve, protect, enhance
and diversify the riparian ecosystem. Even though the Management Plan
was developed before the listing of the flycatcher, the plan includes
actions needed to provide conservation measures to the flycatcher. A
1993 Bosque Action Plan, written by the City of Albuquerque Parks and
General Services Department and adopted by the City Council, includes
preservation and conservation of vegetation and wildlife communities
including the flycatcher and the habitat upon which it depends. Over
the past decade the City's plans and management initiatives have
focused increasingly on habitat restoration and management for
endangered species, including the flycatcher. In 1999 a number of
parties came together to develop a constructive solution that would
resolve conflicts and benefit the flycatcher and Rio Grande silvery
minnow. The City is one of these parties which signed a Memorandum of
Understanding in April 2002 as the Middle Rio Grande ESA Collaborative
Program (Program). The Program was created by Senator Domenici of New
Mexico in 2000 and has since been funded through the Energy and Water
Development Appropriations Subcommittee. The Program's goal is to
contribute to the survival and recovery of the flycatcher and Rio
Grande silvery minnow in the Middle Rio Grande basin. Most recently,
the City's 2005 Environmental Enhancement Plan (EEP) includes numerous
new revegetation and off-channel water improvements intended
specifically to enhance flycatcher habitat. It focuses on establishing
and maintaining a mosaic of habitat types and vegetation/plant
communities within the Park. The City's commitment to managing
established plant communities will ensure long-term sustainability of
habitats preferred by and beneficial to the flycatcher. The EEP and
current management of the Park represent a culmination of previous
plans and ongoing research and management efforts.
The Park is contained within a highly urbanized environment and the
EEP also focuses on the serious threat to public health and safety
posed by bosque wildfire. Consistent with its mandate to manage the
Park to protect and enhance the scenic and natural environment, the
City manages the Park to prevent catastrophic wildfire. The threat to
the public was made clear by the devastating bosque fires of 2003 in
the Park. Major fires consumed over 162 ha (400 ac) of bosque, or
approximately
[[Page 60972]]
\1/6\ of the riparian forest in Bernalillo County. These fires
destroyed or threatened homes and lives and also resulted in serious
damage to wildlife habitat.
The U.S. Army Corps of Engineers (Corps) was initially requested to
assist with restoration of these burn areas and other work needed to
improve access and prevent future fires. In January of 2004, the Corps
was authorized to assist local efforts of this type. Pursuant to the
authority of Public Law 108-137, Operations and Maintenance, Section
116, which states: ``the Secretary of the Army, acting through the
Chief of Engineers, is authorized to undertake appropriate planning,
design, and construction measures for wildfire prevention and
restoration in the Middle Rio Grande bosque in and around the City of
Albuquerque. Work shall be directed toward those portions of the bosque
which have been damaged by wildfire or are in imminent danger of damage
from wildfire due to heavy fuel loads and impediments to emergency
vehicle access.''
High fuel loads that have accumulated over the past 50 years and
growth of non-native species have added to the danger of fire in the
bosque. Over the last five to ten years, this threat has grown due to
drought conditions throughout the west causing the build-up of dead
material to become extremely dry. Because of the proximity of
structures to the bosque, the threat to human health and property is of
imminent concern. In August 2004, we consulted on the Bosque Wildfire
Project, Bernalillo and Sandoval Counties, New Mexico (Bosque Wildfire
Project) with the Army Corps of Engineers (U.S. Army Corps of Engineers
2004; USFWS 2004a). The Bosque Wildlfire Project was designed to reduce
the fuel loading in the bosque, as well as improving access for fire
fighter safety, in case a fire were to break out. The project began in
September 2004 and should be complete by March 2006. We found that the
overall project and revegetation activities would begin to restore the
bosque and improve habitat over the long-term for the flycatcher.
Therefore, potential project modifications are likely to be minimal,
given the beneficial nature of the current activities and projects. We
note that protecting human life and property is the highest priority in
the wildland urban interface. In addition, threats of wide-scale
habitat loss due to fire are real and immediate on many private and
public lands. As such, we will continue to encourage efforts such as
this project to reduce the risk of wildfire, while conducting habitat
restoration activities.
The City's response to these fires was to utilize State and Federal
resources to accelerate broad-scale fuels reduction within the Park.
The City's fire suppression program, developed in concert with State
and Federal agencies, is part of the 2005 EEP and is largely based on
thinning of the thick accumulations of dead and down vegetation; and
replacement of non-native species with cottonwoods, willow, and other
native species. Over 526 ha (1,300 ac) were treated in a six-month
period; 890 ha (2,200 ac) (nearly 85%) of the riparian forest had been
treated or previously burned by the beginning of May 2005. The only
untreated areas remaining are those scheduled for habitat restoration
projects in the fall of 2005, or selected research sites, which will
have fuels reduction at a later date. The outcome of these public
safety actions has been to greatly alter the former hazardous
conditions within the Park in order to favor re-establishment of native
vegetation communities.
The loss of bosque due to fire and the vegetation management to
reduce the threat of future fire destruction has created the
opportunity to recreate a healthy native bosque. The circumstances have
allowed the Park to analyze the bosque ecosystem and plan for a mosaic
of plant community types that will benefit the wildlife, including the
flycatcher. Plant communities are proposed that would significantly
improve the existing habitats in the Park to those more beneficial to
the flycatcher. Acreages of restored under-canopy species, thickets of
native shrubs, and plantings at edges of standing or slow-moving water
are identified. Suitable vegetation structure is but one side of an
equation for potential flycatcher habitat; proximity to water is also a
vital consideration. Planned features include created or enhanced
wetland or outfall channels, moist soil depressions, and overbank
flooding areas. Several Park zones are considered ``special management
areas'' due to their high habitat values or unique existing
characteristics and will be managed for the flycatcher. All of these
feature types are proposed as part of the EEP and will work towards
sustained conservation for the flycatcher.
(1) Benefits of Inclusion
We believe that there is minimal benefit from designating critical
habitat for the southwestern willow flycatcher within the Park because,
as explained above, these lands are already managed for the
conservation of flycatcher.
As stated in the environmental assessment, the primary conservation
value of the proposed critical habitat segments is to sustain existing
populations. The threshold for reaching destruction or adverse
modification on Park lands would likely require a reduction in the
capability of the habitat to sustain existing populations. Currently,
the only territories known are immediately downstream of the Park, so
the only populations expected to use this area are migrant or
dispersing southwestern willow flycatchers. As noted above, a
consultation with the Corps for restoration and fire prevention
activities within the Park was finalized in 2004 at which time we
concurred that the project ``may affect, but is not likely to adversely
affect'' the flycatcher. The Service recognized the beneficial effects
to flycatcher habitat from the Corps' proposed activities to reduce the
risk of catastrophic wildfire and to reestablish native vegetation.
Because southwestern willow flycatchers use the Park as habitat for
migration and dispersal, the scope of our analysis in this consultation
already included consideration of the effects to flycatcher habitat and
determined that the project provides benefits to the flycatcher through
reducing the risk of wildfire that can destroy its habitat and through
the restoration of native riparian vegetation.
Given the consultation history and the fact that these lands are
managed in a way that provide a conservation benefit for the
flycatcher, it is highly unlikely that projects would be considered
that would result in a depreciable diminishment or long-term reduction
of the capability of the habitat to sustain existing populations. To
the contrary, activities occurring on these lands will provide benefits
to the flycatcher by restoring, improving, and protecting its habitat.
We believe the conservation measures for the flycatcher that are
occurring or will be used in the future in the Park (i.e., riparian
restoration and fire prevention measures) provide as much, and possibly
more benefit than would be achieved through section 7 consultations
involving consideration of critical habitat using a conservation
standard based on the Ninth Circuit Court's decision in Gifford
Pinchot. This is because management that is occurring or future
activities will be the same activities which would be implemented in
order to maintain or restore flycatcher habitat.
We believe that there would be little additional informational
benefit gained
[[Page 60973]]
from including the Park within the designation because the final rule
identifies all areas that are essential to the conservation of the
flycatcher, regardless of whether all of these areas are included in
the regulatory designation. Consequently, we believe that the
informational benefits are already provided for areas that are being
excluded from the designation of critical habitat.
(2) Benefits of Exclusion
The proposed critical habitat designation would be an
administrative and economic burden to the ongoing ecological
stewardship of the Park by the City, and the multi-agency cooperative
projects now planned. The costs of section 7 consultations for the
Corps and non-Federal project proponents would increase due to the
administrative costs associated with allocating staff time to the
consultation process, costs associated with delay of thinning and
revegetation activities until consultations are completed, and direct
monetary expenditures associated with potential project delays. As
such, the benefits of excluding the Park from the designation include a
reduction in administrative costs associated with engaging in
consultations pursuant to section 7 of the Act.
Designation could thwart ongoing conservation efforts by the City
and by others, adding additional regulatory burdens. The Corps also has
an ongoing revitalization project that will create a 32 km (20 mi)
aquatic park/wetland along the Middle Rio Grande (Tingley Beach) (USFWS
2004). There has been some concern that critical habitat designation
for the flycatcher may hinder the efforts of these programs. Effects to
actions planned by these programs to date has been similar to those
experienced by other saltcedar removal and vegetation management
projects, primarily including avoiding removal of vegetation during
flycatcher breeding season (USFWS 2005a). Costs and any potential
delays for reinitiation of consultation will be minimized by excluding
this area from designated critical habitat.
The City's collective management plans for the Park represent a
complete and comprehensive program, which will provide a conservation
benefit to the flycatcher. The City's management of the Park is
consistent with the recovery plan for the flycatcher; the collective
plans implement or propose to implement many of the conservation
measures set forth in the flycatcher recovery plan. The City's various
management plans provide assurances that the management will be
implemented. Indeed, as noted, the City is mandated by State law to
manage the Park. Finally, the collective plans provide assurances that
management of the Park will be effective in providing benefits to the
southwestern willow flycatcher through continued monitoring and
reporting, among other things, and the City's management of the Park is
of a perpetual nature.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
In summary, we believe that the benefits of excluding the Park from
critical habitat for the flycatcher outweigh the benefits of its
inclusion in critical habitat. Including this area may result in some
benefit through additional consultations with those whose activities
may affect critical habitat. However, overall this benefit is minimal
because the Park is currently being managed in a manner that provides a
conservation benefit to the flycatcher. On the other hand, exclusion
will greatly benefit the expeditious completion of scheduled bosque
restoration activities for the fall of 2005 and will encourage the
ongoing management for the sustainability of flycatcher habitat. It
will recognize the benefits to conservation of the flycatcher in the
management plans and the multi-agency collaborative efforts that are
based on the premise that it is better to work in the spirit of
cooperation to develop solutions to shared problems regarding resource
management and meeting the needs of our endangered species. It will
also recognize the need to manage the bosque, a wildland-urban
interface, for health and human safety.
We also find that the exclusion of these lands will not lead to the
extinction of the species, nor hinder its recovery because Park
projects follow the guidelines set by the Recovery Plan for the
flycatcher thereby providing a benefit to the flycatcher and its
habitat. In addition, proposed projects will still require consultation
pursuant to section 7 as a result of the species presence under the
jeopardy standard and, as discussed above, the mandate of the Park is
to manage this area for the protection and enhancement of the scenic
and natural environment and prevent catastrophic wildfire.
Kern Management Unit, CA
Hafenfeld Ranch Conservation Easement
Section 4(b)(2) of the Act requires us to consider other relevant
impacts, in addition to economic impacts, of designating critical
habitat. One approximately 37 ha (93 ac) parcel (Hafenfeld Parcel)
located on lands owned by the Hafenfeld Ranch in the proposed Kern
Management Unit warrants exclusion from the final designation of
critical habitat under section 4(b)(2) of the Act because we have
determined that the benefits of excluding the Hafenfeld Parcel from the
critical habitat designation will outweigh the benefits of including it
in the final designation based on the special management considerations
and protections afforded for southwestern willow flycatcher habitat
through a conservation easement and Conservation Plan developed by the
Natural Resources Conservation Service (NRCS). The following represents
our rationale for excluding the Hafenfeld Parcel from the final
designated critical habitat for the southwestern willow flycatcher in
the Kern Management Unit.
The dominant vegetation in the Kern Management Unit is mature
willows (Salix gooddingii, S. lasiandra, and S. laevigata) and Fremont
cottonwood (Populus fremontii). Other plant communities of the Kern
Management Unit include open water, wet meadow, and riparian uplands.
Approximately 9.3 ha (23 ac) of mature riparian forest habitat is found
on the Hafenfeld Parcel, mainly located along the braided channels of
the Kern River that meander through the parcel. Portions of the
Hafenfeld Parcel are seasonally flooded, forming fragmented wetland
communities throughout the area. The remainder of the parcel consists
of wet meadow and riparian upland habitats, consistent with the
character of habitats located throughout the larger Kern Management
Unit. The Hafenfeld Parcel completes a continuous corridor of willow-
cottonwood riparian habitat along the south fork of the Kern River that
connects the east and west segments of the Audubon Society's Kern River
Preserve, which is known to be occupied by the southwestern willow
flycatcher. The southwestern willow flycatcher has been documented on
the Kern Management Unit, which includes the Hafenfeld Parcel. The
Hafenfeld Parcel is currently protected under an Easement and
Conservation Plan developed by the NRCS.
We proposed as critical habitat, but have now excluded from the
final designation, as described below, portions of the Hafenfeld
property within the Kern Management Unit.
(1) Benefits of Inclusion
We believe that there is minimal benefit from designating critical
habitat for the southwestern willow flycatcher within portions of the
Hafenfeld property because, as explained above,
[[Page 60974]]
these lands are already managed for the conservation of flycatcher.
As stated in the environmental assessment, the primary conservation
value of the proposed critical habitat segments is to sustain existing
populations. The threshold for reaching destruction or adverse
modification on the Hafenfeld property would likely require a reduction
in the capability of the habitat to sustain existing populations. Given
that these lands are managed for the benefit of the flycatcher it is
highly unlikely that projects would be considered for this area that
would result in depreciable diminishment or a long-term reduction of
the capability of the habitat to sustain existing populations. To the
contrary, activities occurring on these lands have provided benefits to
the flycatcher by restoring, improving, and protecting its habitat.
As described above, the Hafenfeld property proposed for critical
habitat may have additional conservation value above sustaining
existing populations, because they are managing these lands to improve,
protect, and possibly expand upon the amount of nesting habitat that
would provide for growth of existing populations. Expansion of existing
populations in these areas would be an element of recovering the
southwestern willow flycatcher. Accordingly, and as further discussed
above in the ``General Principles of Section 7 Consultations Used in
the 4(b)(2) Balancing Process'' section, through section 7
consultations that may occur, some benefit may incur through the
adverse modification standard and whether or not the activity results
in a reduction in the suitability of the habitat to support expansion
of existing populations. However, because formal consultations will
likely result in only discretionary conservation recommendations (i.e.,
adverse modification threshold is not likely to be reached), we believe
there is an extremely low probability of mandatory elements (i.e.,
reasonable and prudent alternatives) arising from formal section 7
consultations that include consideration of designated southwestern
willow flycatcher critical habitat.
We believe the conservation measures for the flycatcher on the
Hafenfeld property that include the activities described in this
section that include willow planting and management of surface flows to
achieve the optimal flooding regime for the enhancement of important
riparian and wetland habitat provide as much benefit than would be
achieved through section 7 consultations involving consideration of
critical habitat. This is because they are already implementing actions
that restore and maintain flycatcher habitat.
As discussed in the ``Educational Benefits of Critical Habitat''
section above, we believe that there would be little additional
informational benefit gained from including the Hafenfeld property
within the designation because this area was included in the proposed
rule as having essential flycatcher habitat. Consequently, we believe
that the informational benefits are already provided even though this
area is not designated as critical habitat. Additionally, in light of
the existing Easement and Conservation Plan executed between the
Hafenfeld Ranch and the NRCS, we believe that an education benefit has
largely been achieved.
(2) Benefits of Exclusion
The southwestern willow flycatcher occurs on public and private
lands throughout the Kern Management Unit. Proactive voluntary
conservation efforts by private or non-Federal entities are necessary
to prevent the extinction and promote the recovery of the southwestern
willow flycatcher in the Kern Management Unit.
The Hafenfeld Parcel is managed in such a way as to promote the
conservation of the southwestern willow flycatcher through provisions
of the Conservation Plan developed by the NRCS. Management activities
include: (1) Limiting public access to the site, (2) winter-only
grazing practices (outside of the flycatcher nesting season), (3)
protection of the site from development or encroachment, (4)
maintenance of the site as permanent open space that has been left
predominantly in its natural vegetative state, and (5) the spreading of
flood waters which promotes the moisture regime and wetland and
riparian vegetation determined to be essential for the conservation of
the southwestern willow flycatcher. Other prohibitions of the easement
which would benefit the conservation of the southwestern willow
flycatcher include: (1) Haying, mowing or seed harvesting; (2) altering
the grassland, woodland, wildlife habitat, or other natural features;
(3) dumping refuse, wastes, sewage, or other debris; (4) harvesting
wood products; (5) draining, dredging, channeling, filling, leveling,
pumping, diking, or impounding water features or altering the existing
surface water drainage or flows naturally occurring within the easement
area; and, (6) building or placing structures on the easement. Funding
for the implementation of the Conservation Plan is apportioned between
the United States and the Hafenfeld Ranch by provisions of the
Conservation Easement.
We have determined that the southwestern willow flycatcher within
properties covered by management plans or conservation strategies that
protect or enhance the conservation of the species will benefit
substantially from voluntary landowner management actions due to an
enhancement and creation of riparian and wetland habitat and a
reduction in risk of loss of riparian habitat. The conservation
benefits of critical habitat are primarily regulatory or prohibitive in
nature. Where consistent with the discretion provided by the Act, the
Service believes it is necessary to implement policies that provide
positive incentives to private landowners to voluntarily conserve
natural resources and that remove or reduce disincentives to
conservation (Wilcove et al. 1996; Bean 2002). Thus, we believe it is
essential for the recovery of the southwestern willow flycatcher to
build on continued conservation activities such as these with a proven
partner, and to provide positive incentives for other private
landowners who might be considering implementing voluntary conservation
activities but have concerns about incurring incidental regulatory or
economic impacts.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, we have determined that the
benefits of excluding the Hafenfeld Parcel from critical habitat in the
Kern Management Unit outweigh the benefits of including it as critical
habitat for the southwestern willow flycatcher.
The Hafenfeld Parcel is currently operating under a Conservation
Plan to implement conservation measures and achieve important
conservation goals through the conservation measures described above,
as well as willow planting and management of surface flows to achieve
the optimal flooding regime for the enhancement of important riparian
and wetland habitat for the southwestern willow flycatcher.
The Service believes the additional regulatory and educational
benefits of including these lands as critical habitat are relatively
small. The Service anticipates that the conservation strategies will
continue to be implemented in the future, and that the funding for
these activities will be apportioned in accordance with the provisions
of the Conservation Plan. The designation of critical habitat can serve
to educate the general public as well as conservation organizations
regarding the potential conservation
[[Page 60975]]
value of an area, but this goal is already being accomplished through
the identification of this area in the Conservation Plan described
above. Likewise, there will be little additional Federal regulatory
benefit to the species because (a) there is a low likelihood that the
Hafenfeld Parcel will be negatively affected to any significant degree
by Federal activities requiring section 7 consultation, and (b) we
believe that based on ongoing management activities there would be no
additional requirements pursuant to a consultation that addresses
critical habitat.
Excluding these privately owned lands with conservation strategies
from critical habitat may, by way of example, provide positive social,
legal, and economic incentives to other non-Federal landowners who own
lands that could contribute to listed species recovery if voluntary
conservation measures on these lands are implemented.
In conclusion, we find that the exclusion of critical habitat on
the Hafenfeld Parcel would most likely have a net positive conservation
effect on the recovery and conservation of the southwestern willow
flycatcher when compared to the positive conservation effects of a
critical habitat designation. As described above, the overall benefits
to these subspecies of a critical habitat designation for these
properties are relatively small. In contrast, we believe that this
exclusion will enhance our existing partnership with these landowners,
and it will set a positive example and provide positive incentives to
other non-Federal landowners who may be considering implementing
voluntary conservation activities on their lands. We conclude there is
a higher likelihood of beneficial conservation activities occurring in
these and other areas for the southwestern willow flycatcher without
designated critical habitat than there would be with designated
critical habitat on these properties.
We believe that exclusion of these lands will not result in the
extinction of the southwestern willow flycatcher as these areas are
considered occupied habitat. Actions which might adversely affect the
species are expected to have a Federal nexus, and would thus undergo a
section 7 consultation with the Service. The jeopardy standard of
section 7 of the Act and routine implementation of habitat preservation
through the section 7 process provide assurance that the species will
not go extinct. In addition, the subspecies is protected from take
under section 9 of the Act. The exclusion leaves these protections
unchanged from those that would exist if the excluded areas were
designated as critical habitat.
Critical habitat is being designated for the subspecies in other
areas that will be accorded the protection from adverse modification by
Federal actions using the conservation standard based on the Ninth
Circuit decision in Gifford Pinchot. Additionally, the flycatcher
occurs on lands protected and managed either explicitly for the
subspecies, or indirectly through more general objectives to protect
natural values, this provides protection from extinction while
conservation measures are being implemented. The subspecies also occurs
on lands managed to protect and enhance wetland values under the
Wetlands Reserve Program of the NRCS.
Upper Gila Management Unit
U-Bar Ranch
Pacific Western Land Company (PWLC), a Phelps Dodge subsidiary,
owns the U-Bar Ranch (Ranch) near Cliff, in Grant County New Mexico, in
the Upper Gila Management Area. As discussed in the proposed rule,
flycatchers have been detected nesting along stream segments in the
Upper Gila Management Unit since 1993. In 1999, a high of 262
territories at 8 sites were detected; the Ranch had 209 of these
territories. In 2003, 191 territories at 8 sites were detected on the
Gila River stream segments proposed as critical habitat and the Ranch
had 123 of these territories. Many of the territories on the Ranch were
found outside of the flood-prone area, off-channel in habitat along
irrigation ditches. This privately owned Ranch is an important site for
the conservation and recovery of the flycatcher in Upper Gila
Management Area.
Through the efforts of PWLC and its long-time lessee, Mr. David
Ogilvie, Phelps Dodge has demonstrated a commitment to management
practices on the Ranch that have conserved and benefited the flycatcher
population in that area over the past decade. In addition, Phelps Dodge
has privately funded scientific research at and in the vicinity of the
Ranch in order to develop data that has contributed to the
understanding of habitat selection, distribution, prey base, and
threats to the flycatcher. Considering the past and ongoing efforts of
management and research to benefit the flycatcher, done in coordination
and cooperation with the Service, we find the benefits of excluding
areas of the U-Bar Ranch outweigh the benefits of including it in
critical habitat.
The U-Bar Ranch utilizes a management plan on its pastures within
the Gila Valley that are north of the Highway 180 West Bridge and south
of the boundary of the Gila National Forest. Eight pastures that
incorporate approximately 1,372 ha (3,390 ac) are managed with a plan
that is adapted annually for operation of livestock and farming
enterprises. The management consists of a multifaceted and highly
flexible rest-rotation system utilizing both native forage and
irrigated fields. The Ranch's numerous pastures allow a relatively
dynamic rotation system that is modified based upon current conditions.
Grazing use of river bottom pastures is monitored by daily visual
inspections. Use of these pastures is limited to ensure that forage
utilization levels are moderate and over-use does not occur. In
addition, the riparian areas are monitored regularly, and riparian
vegetation is allowed to propagate along the river as well as in
irrigation ditches.
Some specific management practices, varying in different pastures,
which relate to the flycatcher and its habitat are: (1) Grazing is
limited to November through April to avoid negative impacts during
migration and nesting season; (2) animal units are adjusted to protect
and maintain the riparian vegetation needed by the flycatcher; (3) the
irrigation ditches are maintained, along with the vegetation, to
benefit the flycatcher; (4) restoration efforts follow flood events
that destroy habitat; and (5) herbicide and pesticides are only used in
rare circumstances and are not used near occupied territories during
breeding season. These flexible and adaptive management practices have
resulted in the expansion, protection, and successful continuance of a
large flycatcher population.
In 1995, active restoration followed the flooding destruction of
the Bennett Farm fields in the 162 ha (400 ac) River Pasture. The
Bennett Restoration Project is a series of artificially created,
flooded marshy areas located between irrigated and dry-land pastures
and the river. The Bennett Restoration Project is a mosaic of
vegetation in successional stages with dense patches and lines of young
willows and cottonwoods occurring in manmade oxbows. The oxbows occur
outside of the active flood channel behind a levee. Water is
continuously present and the project has become a marshy habitat in
which flycatcher nesting was noted in 1997 (Dave Ogilvie, pers. comm.,
2005). The site now supports one of the higher numbers of territories
on the U-Bar Ranch and in the Upper Gila Management Area. The 2004
survey review resulted in recording 35 territories for the Bennett site
(N. Baczek, USFWS, pers. com.).
[[Page 60976]]
The second-most successful nesting site on the U-Bar Ranch is in
the Lower River Pasture. A significant feature of this riparian area is
the amount of water it receives from adjacent irrigated fields. The
Ranch has rehydrated ditches and no longer follows past land-use
practices, which involved active clearing of woody vegetation from
ditch banks. The Ranch has developed tree growth and a network of
wooded strips in connection with the ditch-banks to attract breeding
flycatchers.
Besides land management practices, Phelps Dodge and the U-Bar Ranch
have supported flycatcher surveys and research in the Gila valley since
1994. Surveyors are trained and permitted in coordination with the
Service and survey results are submitted to the Service in annual
reports. Flycatcher research on the Ranch has included: nest monitoring
(sites, substrate, and success), diet, microhabitat use, climatic
influences on breeding, cowbird parasitism, and distribution and
characteristics of territories. Permits for studies are coordinated
with the Service and reports are submitted to us for review and
comments. The research provides information to apply to grazing and
land management (David Ogilvie, May 30, 2005). A current study involves
eliminating grazing in the Lower River Pasture, but continuing it in
the Out Pasture and Bennett during flycatcher breeding season to
evaluate the effect of grazing on nest success and population trends.
(1) Benefits of Inclusion
There are few benefits in including the U-Bar Ranch in the critical
habitat designation above those that will be achieved through the
implementation of their voluntary management and restoration projects.
As discussed above, the principal benefit of any designated critical
habitat is that activities affecting habitat require consultation under
section 7 of the Endangered Species Act if a Federal action is
involved. Such consultation would ensure that adequate protection is
provided to avoid destruction or adverse modification of critical
habitat. Since the U-Bar Ranch is privately owned, unless there is a
Federal nexus in connection with their activities, the designation of
critical habitat will not result in a consultation.
Another possible benefit is that the designation of critical
habitat can serve to educate the public regarding the potential
conservation value of an area, and this may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation value for certain species. Any information about the
flycatcher and its habitat that reaches a wide audience, including
other parties engaged in conservation activities, would be considered
valuable. However, the U-Bar Ranch is already working with the Service
to address the conservation and recovery of the species. Further, the
Ranch was included in the proposed designation, which itself has
reached a wide audience, and has thus provided information to the
broader public about the conservation value of this area. Thus, the
educational benefits that might follow critical habitat designation
have already been provided by proposing the area as critical habitat.
For these reasons, then, we believe that designation of critical
habitat would have few, if any, additional benefits beyond those that
will result from continued consultation for the presence of the
species.
(2) Benefits of Exclusion
We believe that significant benefits would be realized by excluding
the U-Bar Ranch that include: (1) The continuance and strengthening of
our effective cooperative relationship with the Ranch to promote the
conservation of the flycatcher and its habitat; (2) the allowance for
continued meaningful collaboration and cooperation in surveys, nest
monitoring, and research as we work towards recovery of the species;
and (3) the provision of conservation benefits to the Gila River
ecosystem and the flycatcher and its habitat that might not otherwise
occur.
As mentioned above, the U-Bar Ranch is an important land manager in
the Upper Gila Management Unit. The surveys, conservation, restoration
and management information submitted by the Ranch document that
meaningful collaborative and cooperative work for the flycatcher and
its habitat will continue on their land. The Ranch has committed to
several ongoing or future management, restoration, enhancement, and
survey activities that may not occur if we were to designate critical
habitat on the Ranch. We believe that the results of these activities
promote long-term protection and conserve the flycatcher and its
habitat on the Ranch land. The benefits of excluding this area from
critical habitat will encourage the continued conservation, land
management, and coordination with the Service. If this area is
designated as critical habitat, we may jeopardize future conservation,
research, and information sharing for the recovery of the flycatcher.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
In summary, the benefits of including the U-Bar Ranch in critical
habitat are small, and are limited to insignificant educational
benefits since these lands are privately owned and the trigger for
section 7 consultation is lacking. The benefits of excluding this area
from designation as critical habitat for the flycatcher are
significant, and include encouraging the continuation of adaptive
management measures such as monitoring, surveys, research, enhancement,
and restoration activities that the Ranch currently implements and
plans for the future. The exclusion of this area will likely also
provide additional benefits to the species by encouraging and
maintaining a cooperative working relationship with the Ranch. We find
that the benefits of excluding this area from critical habitat
designation outweigh the benefits of including this area.
We have determined that exclusion of areas of the Ranch will not
result in extinction of the species. The Ranch is committed to greater
conservation measures on their land than would be available through the
designation of critical habitat. Accordingly, we have determined that
areas of the U-Bar Ranch should be excluded under subsection 4(b)(2) of
the Act because the benefits of exclusion outweigh the benefits of
inclusion and will not cause the extinction of the species.
Table 4.--Total Size of Final Critical Habitat for the Southwestern Willow Flycatcher, Including Areas Excluded
and Exempted From the Final Designation
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Total area identified in proposal as containing essential features......................... 143486 (354562)
Areas exempted under section 4(a)(3) of the Act: Camp Pendleton and Fallbrook Naval Weapons 1793 (4430)
Station...................................................................................
Exclusion of areas under section 4(b)(2) of the Act: HCP plan areas including Western 27494 (67940)
Riverside County, CA, Multiple Species Habitat Conservation Plan; San Diego County, CA,
Multiple Species Conservation Plan; City of Carlsbad, CA, Habitat Management Program;
Lower Colorado River, CA/AZ Multiple Species Conservation Plan; Roosevelt, AZ Habitat
Conservation Plan.........................................................................
[[Page 60977]]
Exclusion of Tribes and Pueblos under section 4(b)(2) of the Act that have completed 10480 (25897)
Southwestern Willow Flycatcher Management Plans and/or have developed flycatcher habitat
specific partnerships with the Service: Hualapai, Chemehuevi, Colorado River, Fort Mojave,
Quechan (Fort Yuma), Yavapai-Apache, and San Carlos Tribes in AZ, La Jolla, and Rincon
Tribes in CA; Isleta, San Illdefonso, Santa Clara, and San Juan Pueblos in NM.............
Exclusion of National Wildlife Refuges under section 4(b)(2) of the Act with completed CCPs 18788 (46427)
or developed management programs/strategies for the southwestern willow flycatcher
habitat: Pahranagat, NV; Havasu, Cibola, Imperial, and Bill Williams in AZ, Alamosa, CO;
Bosque del Apache and Sevilleta, NM.......................................................
Exclusion of State and Federal Wildlife Areas under section 4(b)(2) of the Act with plans/ 5199 (12847)
programs for the management and protection of southwestern willow flycatcher habitat:
Overton and Key Pittman Wildlife Area, NV; Alamo Wildlife Area, AZ; Kern River Wildlife
Area and Sprague Ranch, CA................................................................
Exclusions of partnerships, management plans/programs or easements under section 4(b)(2) of 30836 (76198)
the Act that provide protections specific to southwestern willow flycatcher habitat: Los
Angeles Department of Water and Power-Owens River Southwestern Willow Flycatcher
Conservation Strategy; San Luis Valley, CO, Partnership; Hafenfeld Ranch--Kern River, CA;
Salt River Project Partnership--Horseshoe Lake, AZ; U-Bar Ranch--Gila River, NM; Rio
Grande Valley State Park (City of Albuquerque), NM........................................
Total Final Critical Habitat........................................................... 48896 (120824)
----------------------------------------------------------------------------------------------------------------
Section 7 Consultation
The regulatory effects of a critical habitat designation under the
Act are triggered through the provisions of section 7, which applies
only to activities conducted, authorized, or funded by a Federal agency
(Federal actions). Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR 402.
Individuals, organizations, States, local governments, and other non-
Federal entities are affected by the designation of critical habitat
only if their actions occur on Federal lands, require a Federal permit,
license, or other authorization, or involve Federal funding.
Section 7(a)(2) of the Act requires Federal agencies, including us,
to insure that their actions are not likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of designated critical habitat. This requirement is met
through section 7 consultation under the Act. Our regulations define
``jeopardize the continued existence of'' as to engage in an action
that reasonably would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or
distribution of that species (50 CFR 402.02). ``Destruction or adverse
modification of designated critical habitat'' for this species would
include habitat alterations that appreciably diminish the value of
critical habitat by significantly affecting any of those physical or
biological features that were the basis for determining the habitat to
be critical. We are currently reviewing the regulatory definition of
adverse modification in relation to the conservation of the species.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a proposed species or result in destruction or adverse modification
of proposed critical habitat. Conference reports provide conservation
recommendations to assist Federal agencies in eliminating conflicts
that may be caused by their proposed actions. The conservation measures
in a conference report are advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation, the
Federal action agency would ensure that the permitted actions do not
destroy or adversely modify critical habitat.
If we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide ``reasonable and prudent alternatives'' to the
project, if any are identifiable. Reasonable and prudent alternatives
are defined at 50 CFR 402.02 as alternative actions identified during
consultation that can be implemented in a manner consistent with the
intended purpose of the action, that are consistent with the scope of
the Federal agency's legal authority and jurisdiction, that are
economically and technologically feasible, and that the Service's
Regional Director believes would avoid the likelihood of jeopardizing
the continued existence of listed species or resulting in the
destruction or adverse modification of critical habitat. Reasonable and
prudent alternatives can vary from slight project modifications to
extensive redesign or relocation of the project. Costs associated with
implementing a reasonable and prudent alternative are similarly
variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions under certain
circumstances, including instances where critical habitat is
subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat, or adversely modify or destroy proposed critical
habitat.
Federal activities that may affect southwestern willow flycatcher
or its critical habitat will require consultation under section 7.
Activities on private, State, or county lands, or lands under local
jurisdictions requiring a permit from a Federal agency, such as Federal
Highway Administration or Federal Emergency Management Act funding, or
a permit from the Corps under section 404 of the Clean Water Act, will
continue to be subject to the section 7 consultation process. Federal
actions not affecting listed species or critical habitat, and actions
on non-Federal lands that are not federally funded, authorized, or
permitted, do not require section 7 consultations.
Section 4(b)(8) of the Act requires us to evaluate briefly and
describe, in any proposed or final regulation that designates critical
habitat, those activities involving a Federal action that
[[Page 60978]]
may adversely modify such habitat or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat include those that alter the primary constituent elements to an
extent that the value of critical habitat for both the survival and
recovery of southwestern willow flycatcher is appreciably reduced. We
note that such activities may also jeopardize the continued existence
of the species. Activities that, when carried out, funded, or
authorized by a Federal agency that may affect the southwestern willow
flycatcher and which may require consultation under section 7 of the
Act to determine if they adversely modify critical habitat include, but
are not limited to: Removing, thinning, or destroying riparian
vegetation without a riparian restoration plan to cause habitat to
become of equal or better quality in abundance and extent. Activities
that remove, thin, or destroy riparian vegetation, by mechanical,
chemical (herbicides or burning), or biological (grazing, biocontrol
agents) means reduce constituent elements for southwestern willow
flycatcher sheltering, feeding, breeding, and migrating. Each of the
specific areas designated in this rule as critical habitat for the
southwestern willow flycatcher have been determined to contain
sufficient PCEs to provide for one or more of the life history
functions for the flycatcher. In some cases, the PCEs exist as a result
of ongoing Federal actions. As a result, ongoing Federal actions at the
time of designation will be included in the baseline in any
consultation pursuant to section 7 of the Act conducted subsequent to
this designation.
(1) Activities that appreciably diminish value or quality or
habitat or primary constituent elements through direct or indirect
effects (e.g., degradation of watershed and soil characteristics,
diminishing surface and subsurface flow, altering flow regimes,
introduction of exotic plants, animals, or insects, or fragmentation of
habitat);
(2) Alteration of current surface water diversion or impoundment,
groundwater pumping, dam operation, or any other activity which changes
the frequency, magnitude, duration, timing or abundance of surface flow
(Poff et al. 1997), and/or quantity/quality of subsurface water flow in
a manner which permanently reduces available riparian habitats by
reducing food availability, or the general suitability, quality,
structure, abundance, longevity, vigor, micro-habitat components, and
distribution of riparian habitat for nesting or migrating. This would
not apply to the normal rise and fall of storage pools behind dams, as
discussed below.
(3) Permanent destruction/alteration of the species habitat by
discharge of fill material, draining, ditching, tiling, pond
construction, levee construction and stream channelization (i.e., due
to roads, construction of bridges, impoundments, discharge pipes,
stormwater detention basins, dikes, levees, etc.).
(4) Management of livestock in a manner that reduces the volume and
composition of riparian vegetation, physically disturbs nests, alters
floodplain dynamics such that regeneration of riparian habitat is
impaired or precluded, facilitates excessive brood parasitism by brown-
headed cowbirds, alters watershed and soil characteristics, alters
stream morphology, and facilitates abundance and extent of exotic
species.
The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of the flycatcher. Federal activities outside of critical
habitat are still subject to review under section 7 if they may affect
the flycatcher. The prohibitions of section 9 also continue to apply
both inside and outside of designated critical habitat.
In general, activities that do not remove or appreciably degrade
the primary constituent elements of habitat for southwestern willow
flycatchers are not likely to destroy or adversely modify critical
habitat. For example, certain dam operations, like Roosevelt Dam in
central AZ, allow water to significantly increase and decrease in the
conservation space depending on availability and demand. This
fluctuation results in the exposure of fine/moist soils in the flat/
broad floodplain of the exposed ground and has led to the development
of hundreds of acres of flycatcher habitat. The same operating regime
that creates the habitat will also inundate and cause loss of habitat.
At this particular location, habitat is expected to persist on the
perimeter and over time will increase and decrease (USFWS 2003). It is
this very process of the ebb and flow of the conservation pool that
ensures persistence of habitat over time, although that habitat will
vary spatially and temporally, as does flycatcher habitat in natural
settings. As a result, the dry conservation space would not be
adversely modified when inundated. Riparian restoration can also cause
a temporary loss of habitat through the actual removal of existing
riparian vegetation. However, if this action is combined with positive
site-specific evaluation (through an analysis of on the ground features
such as groundwater elevation, etc.) and an implementation/restoration
plan (USFWS 2002) that together are expected to cause habitat to become
of the same quality or better for the flycatcher, it would be expected
that those types of restoration activities would not destroy or
adversely modify critical habitat. Each proposed action will be
examined pursuant to section 7 of the Act in relation to its site-
specific impacts.
All lands designated as critical habitat are within the geographic
area occupied by the subspecies and are essential for the conservation
of southwestern willow flycatcher. Within the 15 Management Units we
are designating as critical habitat, only stream segments from the
Santa Ana Management Unit (Santa Ana River, Bear Creek, Mill Creek, Oak
Glen Creek, and Waterman Creek), San Diego Management Unit (Santa
Margarita River, Temecula Creek, Agua Hedionda Creek, Santa Ysabel
River, and Temescal Creek), Mohave Management Unit (Deep Creek, Holcomb
Creek, and Mohave River), Virgin Management Unit (Virgin River in NV
and UT), and Lower Colorado Management Unit (East Fork of the Little
Colorado River and the Little Colorado River) were not known to be
specific areas within the geographic area occupied by the species at
the time of listing. Due to the wide geographic area this bird inhabits
due to it being a neo-tropical migrant, in all likelihood, these areas
were inhabited by southwestern willow flycatchers for nesting,
dispersing, or migrating, but had not been detected or re-confirmed
(some areas were historically occupied) until after the species became
listed in 1995. Much of the increase in the distribution and abundance
of southwestern willow flycatcher territories since listing has largely
been a result of increase survey effort (Durst et al. 2005). We have
provided our rationale for why these specific areas have features
essential for the southwestern willow flycatcher. We consider all of
the units designated as critical habitat, as well as those that have
been excluded, to be essential to the conservation of the southwestern
willow flycatcher and to contain features essential to the conservation
of the subspecies. All Management Units are within the geographical
range by the species, all are occupied by the species (based on
observations made within the last 10 years), and are likely to be used
by breeding, non-breeding, territorial, dispersing, or migrating
southwestern willow flycatchers. Federal agencies already consult with
us on actions that may affect southwestern willow
[[Page 60979]]
flycatcher to ensure that their actions do not jeopardize the continued
existence of the species. Thus, we do not anticipate substantial
additional regulatory protection will result from critical habitat
designation.
If you have questions regarding whether specific activities will
constitute destruction or adverse modification of critical habitat,
contact the Field Supervisor of the appropriate Service Office (see
list below). In NM and AZ requests for copies of the regulations on
listed wildlife and plants and inquiries about prohibitions and permits
may be addressed to the U.S. Fish and Wildlife Service, Branch of
Endangered Species, Post Office Box 1306, Albuquerque, NM 87103-1306
(telephone 505/248-6920; facsimile 505/248-6922).
------------------------------------------------------------------------
Area/State Address Phone No.
------------------------------------------------------------------------
Southern CA................... 6010 Hidden Valley 760/431-9440
Road, Carlsbad, CA
92011.
Central Coastal CA............ 2493 Portola Road, 805/644-1766
Suite B, Ventura, CA
93003.
Central California............ 2800 Cottage Way, 916/414-6600
Sacramento, CA 95821.
Nevada........................ 4701 North Torrey 702/515-5230
Pines Way, Las Vegas,
NV 89130.
Utah.......................... 2369 West Orton 801/975-3330
Circle, West Valley
City, UT 84119.
Arizona....................... 2321 W. Royal Palm 602/242-0210
Road Ste. 103,
Phoenix, AZ 85021.
New Mexico.................... 2105 Osuna Rd. NE, 505/761-4718
Albuquerque, NM 87113.
------------------------------------------------------------------------
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available, and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species concerned. We
conducted an economic analysis to estimate potential economic effects
of the proposed southwestern willow flycatcher critical habitat
designation (USFWS 2005a). The draft analysis was made available for
public review on April 28, 2005 (70 FR 21988). We accepted comments on
the draft analysis until May 31, 2005, and once again between July 7
and July 18, 2005 (70 FR 39227).
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the conservation of the
southwestern willow flycatcher, including the designation of critical
habitat. This information is intended to assist the Secretary in making
decisions about whether the benefits of excluding particular areas from
the designation outweigh the benefits of including those areas in the
designation. This economic analysis considers the economic efficiency
effects that may result from the designation, including habitat
protections that may be co-extensive with the listing of the species.
It also addresses distribution of impacts, including an assessment of
the potential effects on small entities and the energy industry. This
information can be used by the Secretary to assess whether the effects
of the designation might unduly burden a particular group or economic
sector.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic impacts that result from
these types of protections are not included in the analysis as they are
considered to be part of the regulatory and policy baseline. The total
conservation costs from reported efficiency effects associated with the
designation of critical habitat in this rule are approximately $9
million from 2004 to 2025. This total includes losses in land value (by
far the primary cost source), as well as project modification,
administrative, CEQA, delay, and uncertainty costs.
A copy of the final economic analysis and description of the
exclusion process with supporting documents are included in our
administrative record and may be obtained by contacting the Arizona
Ecological Services Fish and Wildlife Service office (see ADDRESSES
section) or retrieved at http://www.fws.gov/arizonaes/.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal and policy issues.
However, based on our economic analysis, it is not anticipated that
this designation of critical habitat for the southwestern willow
flycatcher will result in an annual effect on the economy of $100
million or more or affect the economy in a material way. Due to the
timeline for publication in the Federal Register, the Office of
Management and Budget (OMB) has not formally reviewed the proposed rule
or accompanying economic analysis.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, then the agency will need to consider
alternative regulatory approaches. Since the determination of critical
habitat is a statutory requirement pursuant to the Endangered Species
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then
evaluate alternative regulatory approaches, where feasible, when
promulgating a designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweighs the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the SBREFA), whenever an agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available
[[Page 60980]]
for public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. Based upon our draft economic
analysis we certified in our July 7, 2005 (70 FR 39227), Federal
Register notice that this designation would not result in a significant
effect as defined under SBREFA.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if this designation of critical habitat for the
southwestern willow flycatcher would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities (e.g., water management
and supply, livestock grazing, land development, recreation). We
considered each industry or category individually to determine if
certification is appropriate. In estimating the numbers of small
entities potentially affected, we also considered whether their
activities have any Federal involvement; some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
the designation of critical habitat. Designation of critical habitat
only affects activities conducted, funded, permitted or authorized by
Federal agencies; non-Federal activities are not affected by the
designation. Federal agencies must consult with us if their activities
may affect designated critical habitat. Consultations to avoid the
destruction or adverse modification of critical habitat would be
incorporated into the existing consultation process.
In our economic analysis we evaluated the potential economic
effects on small business entities and small governments resulting from
conservation actions related to the listing of this species and
proposed designation of its critical habitat. We evaluated small
business entities in four categories: dam operations and water supply
activities, and by extension, crop agriculture, ranching activities,
residential development, and businesses affected by changes to
recreational use. The following summary of the information contained in
Appendix A of the final economic analysis provides the basis for our
determination.
Dam Operations and Water Supply Activities
Under scenario two analyzed in the draft economic analysis, water
operators are assumed to be required to change their management regimes
to avoid adverse effects to southwestern willow flycatcher habitat,
resulting in a loss of water for beneficial use (i.e. reservoir pools
will be limited to current levels in order to avoid inundation of
southwestern willow flycatcher habitat). Facilities assessed under this
scenario include Lake Hodges, Cuyamaca Reservoir, Vail Dam, Pleasant
Valley Reservoir (i.e. Owens River), Isabella Dam, Hoover Dam, Parker
Dam, Alamo Dam, Roosevelt Dam, and Horseshoe Dam. No small businesses
would be directly affected under this scenario because dams are not
operated by small businesses. Additionally, as described elsewhere in
this rule, these reservoirs have been excluded from the designation
pursuant to section 4(b)(2) of the Act. Therefore no impacts to these
water operators will result from a critical habitat designation.
Some water users may be more directly affected by changes in water
supply that could occur as a result of southwestern willow flycatcher
conservation activities, specifically, agricultural users dependent on
the drought reserves provided by these systems. Appendix A of the draft
economic analysis provides a profile of the agricultural users that are
at greatest risk from direct losses in water supply under this
scenario. The four water systems that provide water to agricultural
users include Lake Isabella (including the North Kern Water Storage
District, the Buena Vista Storage District, and the City of Bakersfield
Water Resources Department); Roosevelt and Horseshoe (the Salt River
Project operates six reservoirs and dams on the Salt and Verde Rivers);
Coolidge Dam (San Carlos Irrigation Project); and Lower Colorado River
(water from the Colorado River is diverted to six States and is used
for every purpose, including agricultural uses). As described elsewhere
in this rule, these reservoirs have been excluded from the designation
pursuant to section 4(b)(2) of the Act. Therefore no direct impacts to
these water users, as described above and in Appendix A of the economic
analysis, will result from a critical habitat designation.
Water users in the Safford Valley on the Gila River, Arizona,
expressed concerns that groundwater and/or surface water withdrawals
could need to be curtailed to accommodate flycatcher concerns. Water
withdrawals have not been impacted under past operations, even during
the period when critical habitat for the flycatcher was previously
designated. As stated in the ``Section 7'' section above, ongoing
Federal actions at the time of designation will be included in the
baseline in any consultation pursuant to section 7 of the Act conducted
subsequent to this designation. Therefore, we do not anticipate a
significant economic impact to water users on the Gila River.
Ranching Activities
The economic analysis assumes that, in the future, grazing efforts
on areas included in the proposed designation will be reduced, or, in
the high-end estimate, be eliminated due to flycatcher concerns. Based
on this analysis, the high impact scenario for allotments in the
proposed critical habitat is a reduction of 89,400 AUMs (animal unit
months) over 20 years. Of the total AUMs lost, 1,200 are federally
permitted and 88,000 are private. Converting AUM reductions to cattle
reductions reveals that the 37 affected counties may lose a total of
3,385 head of beef cattle, or 0.6 percent of the total number of beef
cattle in the affected region. Even for counties for which percentage
losses appear relatively large, absolute losses per average size ranch
are one to three cows over a twenty year period.
Residential Development
Impacts to development activities within the proposed designation
include land value loss, other project modifications, California
Environmental Quality Act costs, and project delay costs in the Mojave
and Santa Ana
[[Page 60981]]
Management Units in California. The economic analysis determines that
less than 1 percent of land developers will be affected, and 0.02
percent of annual revenues of small land developers in this area may be
lost.
Recreation Activities
Impacts to recreation activities include limitations on vehicle
use, fires, and cigarette smoking in two areas near Roosevelt Lake on
the Tonto National Forest, and fewer trips to the area for hunting and
fishing for a total annual impact of approximately 0.25 percent of
annual small business revenues in Gila County. As described elsewhere
in this rule, Roosevelt Lake has been excluded from the designation
pursuant to section 4(b)(2) of the Act. Therefore, no direct impacts to
recreation activities at Roosevelt Lake will result from a critical
habitat designation.
Based on this data we have determined that the designation of
critical habitat will not affect a substantial number of small
businesses involved in or affected by water management and supply
activities, livestock grazing, land development, and recreation.
Further, we have determined that the designation will not result in a
significant effect to the annual sales of those small businesses
impacted by this designation. As such, we are certifying that the final
designation of critical habitat will not result in a significant
economic impact on a substantial number of small entities. Please refer
to Appendix A of our economic analysis for this designation for a more
detailed discussion of potential economic impacts to small business
entities.
Executive Order 13211
On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This rule is considered a
significant regulatory action under E.O. 12866 due to it potentially
raising novel legal and policy issues, but it is not expected to
significantly affect energy supplies, distribution, or use. Appendix B
of the economic analysis provides a detailed discussion and analysis of
this determination. Specifically, two criteria were determined to be
relevant to this analysis: (1) Reductions in electricity production in
excess of 1 billion kilowatt-hours per year or in excess of 500
megawatts of installed capacity, and (2) increases in the cost of
energy production in excess of 1 percent. The draft analysis finds that
no net reduction in electricity production is anticipated, and thus we
do not anticipate that the suggested OMB threshold of 1 billion
kilowatt hours will be exceeded. In addition, total financial impacts
related to southwestern willow flycatcher conservation activities ($2.7
million annually) represent 0.02 percent of the estimated annual
baseline cost of regional energy production, and this is well below the
1 percent threshold suggested by OMB. Therefore, this action is not a
significant action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
two exceptions. It excludes ``a condition of federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding'' and the State, local,
or tribal governments ``lack authority'' to adjust accordingly. (At the
time of enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat. However, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) The economic analysis discusses potential impacts of critical
habitat designation for the southwestern willow flycatcher on water
management activities, administrative costs, livestock grazing, mining,
residential and commercial development activities, Tribes,
transportation activities, recreation activities, and fire management
activities. The analysis estimates that annual costs of the rule could
range from $32.7 to $38.00 million annually using the most likely costs
scenario. Impacts are largely anticipated to affect water operators and
Federal and State agencies, with some effects on livestock grazing
operations, land development activities, and recreation activities.
Impacts on small governments are not anticipated, or they are
anticipated to be passed through to consumers. For example, costs to
water operations would be expected to be passed on to consumers in the
form of price changes. Consequently, for the reasons discussed above,
we do not believe that the designation of critical habitat for the
southwestern willow flycatcher will significantly or uniquely affect
small government entities. As such, a Small Government Agency Plan is
not required.
Federalism
In accordance with Executive Order 13132, this rule does not have
significant federalism effects. A federalism assessment is not
required. In keeping with Department of the Interior policies, we
requested information from and coordinated development of this proposed
critical habitat designation with appropriate
[[Page 60982]]
State resource agencies in all affected states.
The designation of critical habitat in areas currently occupied by
southwestern willow flycatcher imposes few restrictions beyond those
currently in place and, therefore, has little incremental impact on
State and local governments and their activities. The designation of
critical habitat may have some benefit to the State and local resource
agencies in that the areas essential to the conservation of this
species are more clearly defined, and the primary constituent elements
of the habitat necessary to the conservation of this species are
specifically identified. While this definition and identification does
not alter where and what federally sponsored activities may occur, it
may assist local governments in long-range planning (rather than
waiting for case-by-case section 7 consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Endangered Species
Act. The rule uses standard property descriptions and identifies the
primary constituent elements within the proposed areas to assist the
public in understanding the habitat needs of the southwestern willow
flycatcher.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the southwestern willow flycatcher in
a takings implications assessment. The takings implications assessment
concludes that this designation of critical habitat for the
southwestern willow flycatcher does not pose significant takings
implications.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain new or revised information collection
for which OMB approval is required under the Paperwork Reduction Act.
This rule will not impose recordkeeping or reporting requirements on
State or local governments, individuals, businesses, or organizations.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act
It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This assertion was upheld in the courts
of the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.
Ore. 1995), cert. denied 116 S. Ct. 698 (1996).] However, when the
range of the species includes States within the Tenth Circuit, such as
that of the southwestern willow flycatcher, pursuant to the Tenth
Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and
Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will undertake a
NEPA analysis for critical habitat designation. We have conducted a
NEPA evaluation and notified the public of the draft document's
availability on April 28, 2005 (70 FR 21988). The final document can be
retrieved off the Internet at http://www/fws.gov/arizonaes/.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we have coordinated with
federally-recognized Tribes on a Government-to-Government basis. We
have excluded specific Tribal lands from critical habitat pursuant to
section 4(b)(2) of the Act.
Relationship to Mexico
We are not aware of any existing national regulatory mechanism in
Mexico that would protect the southwestern willow flycatcher or its
habitat. Although new legislation for wildlife is pending in Mexico,
and Mexico has laws that could provide protection for rare species,
there are enforcement challenges. Even if specific protections were
available and enforceable in Mexico, the portion of the southwestern
willow flycatcher's range in Mexico alone, in isolation, would not be
adequate to ensure the long-term conservation of the species.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Arizona Ecological
Services Fish and Wildlife Office (see ADDRESSES section), or retrieve
this information from the Internet at http://www.fws.gov/arizonaes.
Author
The primary author of this notice is the U.S. Fish and Wildlife
Service (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. In Sec. 17.95(b), revise the critical habitat for ``Southwestern
Willow Flycatcher (Empidonax traillii extimus)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(b) Birds.
* * * * *
Southwestern Willow Flycatcher (Empidonax traillii extimus)
(1) Critical habitat units are depicted for Apache, Cochise, Gila,
Graham, Greenlee, Maricopa, Mohave, Pinal, Pima, and Yavapai counties
in Arizona, Kern, Santa Barbara, San Bernardino, and San Diego counties
in southern California, Clark County in southern Nevada, Grant,
Hidalgo, Mora, Rio Arriba, Soccoro, Taos, and Valencia counties in New
Mexico, and Washington County in southwestern Utah on the maps and as
described below.
(2) The primary constituent elements of critical habitat for
southwestern willow flycatcher are:
(i) Riparian habitat in a dynamic successional riverine environment
(for nesting, foraging, migration, dispersal, and shelter) that
comprises:
(A) Trees and shrubs that include Gooddings willow (Salix
gooddingii), coyote willow (Salix exigua), Geyers willow (Salix
geyerana), arroyo willow (Salix lasiolepis), red willow (Salix
laevigata), yewleaf willow (Salix taxifolia), pacific willow (Salix
[[Page 60983]]
lasiandra), boxelder (Acer negundo), tamarisk (Tamarix ramosissima),
Russian olive (Eleagnus angustifolia), buttonbush (Cephalanthus
occidentalis), cottonwood (Populus fremontii), stinging nettle (Urtica
dioica), alder (Alnus rhombifolia, Alnus oblongifolia, Alnus
tenuifolia), velvet ash (Fraxinus velutina), poison hemlock (Conium
maculatum), blackberry (Rubus ursinus), seep willow (Baccharis
salicifolia, Baccharis glutinosa), oak (Quercus agrifolia, Quercus
chrysolepis), rose (Rosa californica, Rosa arizonica, Rosa multiflora),
sycamore (Platinus wrightii), false indigo (Amorpha californica),
Pacific poison ivy (Toxicodendron diversilobum), grape (Vitus
arizonica), Virginia creeper (Parthenocissus quinquefolia), Siberian
elm (Ulmus pumila), and walnut (Juglans hindsii);
(B) Dense riparian vegetation with thickets of trees and shrubs
ranging in height from 2 to 30 meters (m) (6 to 98 feet (ft). Lower-
stature thickets (2 to 4 m or 6 to 13 ft tall) are found at higher
elevation riparian forests, and tall-stature thickets are found at
middle- and lower-elevation riparian forests;
(C) Areas of dense riparian foliage at least from the ground level
up to approximately 4 m (13 ft) above ground or dense foliage only at
the shrub level, or as a low, dense tree canopy;
(D) Sites for nesting that contain a dense tree and/or shrub canopy
(the amount of cover provided by tree and shrub branches measured from
the ground) (i.e., a tree or shrub canopy with densities ranging from
50 percent to 100 percent); or
(E) Dense patches of riparian forests that are interspersed with
small openings of open water or marsh, or shorter/sparser vegetation
that creates a mosaic that is not uniformly dense. Patch size may be as
small as 0.1 ha (0.25 ac) or as large as 70 ha (175 ac); and
(ii) A variety of insect prey populations found within or adjacent
to riparian floodplains or moist environments, including: flying ants,
wasps, and bees (Hymenoptera); dragonflies (Odonata); flies (Diptera);
true bugs (Hemiptera); beetles (Coleoptera); butterflies/moths and
caterpillars (Lepidoptera); and spittlebugs (Homoptera).
(3) Maps and legal descriptions for southwestern willow flycatcher
critical habitat follow:
(4) Bill Williams Management Unit.
(i)
----------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
----------------------------------------------------------------------------------------------------------------
Bill Williams................. Big Sandy River. 34.705270 -113.598290 34.479650 -113.618700
----------------------------------------------------------------------------------------------------------------
BILLING CODE 4310-55-P
[[Page 60984]]
(ii) Bill Williams Management Unit Map follows:
[GRAPHIC] [TIFF OMITTED] TR19OC05.000
[[Page 60985]]
(5) Kern Management Unit.
(i)
----------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
----------------------------------------------------------------------------------------------------------------
Kern.......................... South Fork Kern 35.717690 -118.180890 35.668890 -118.339040
River.
----------------------------------------------------------------------------------------------------------------
[[Page 60986]]
(ii) Kern Management Unit Map follows:
[GRAPHIC] [TIFF OMITTED] TR19OC05.001
[[Page 60987]]
(6) Little Colorado Management Unit.
(i)
----------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
----------------------------------------------------------------------------------------------------------------
Little Colorado............... Little Colorado 34.086800 -109.397000 34.003660 -109.456870
River.
Little Colorado 34.003660 -109.456870 33.931370 -109.487290
River East Fork.
Little Colorado 34.003660 -109.456870 33.958300 -109.516210
River West Fork.
----------------------------------------------------------------------------------------------------------------
[[Page 60988]]
(ii) Little Colorado Management Unit Map follows:
[GRAPHIC] [TIFF OMITTED] TR19OC05.002
[[Page 60989]]
(7) Middle Gila/San Pedro Management Unit.
(i)
----------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
----------------------------------------------------------------------------------------------------------------
Middle Gila/San Pedro......... Gila River...... 33.082830 -110.709340 32.981320 -110.778790
San Pedro River. 33.099950 -111.246310 32.252490 -110.335190
----------------------------------------------------------------------------------------------------------------
[[Page 60990]]
(ii) Middle Gila/San Pedro Management Unit Map follows:
[GRAPHIC] [TIFF OMITTED] TR19OC05.003
[[Page 60991]]
(8) Middle Rio Grande Management Unit.
(i)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Middle Rio Grande.............................. Rio Grande--South segment--1........... 34.870940 -106.720440 34.294030 -106.843240
Rio Grande--South segment--2........... 34.241980 -106.898780 33.869720 -106.845540
Rio Grande--South segment--3........... 33.730610 -106.918770 33.605530 -107.032890
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 60992]]
(ii) Middle Rio Grande Management Unit Map follows:
[GRAPHIC] [TIFF OMITTED] TR19OC05.004
[[Page 60993]]
(9) Mojave Management Unit.
(i)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mojave......................................... Deep Creek (incl. Mojave Fks Res)...... 34.287310 -117.126850 34.340410 -117.245700
Holcomb Creek.......................... 34.304920 -116.964650 34.287310 -117.126850
Mojave River........................... 34.470190 -117.254670 34.583870 -117.337400
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 60994]]
(ii) Mojave Management Unit Map follows:
[GRAPHIC] [TIFF OMITTED] TR19OC05.005
[[Page 60995]]
(10) Roosevelt Management Unit.
(i)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Roosevelt...................................... Salt River............................. 33.670900 -110.800840 33.626350 -110.964550
Tonto Creek............................ 34.023900 -111.282800 33.785650 -111.256270
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 60996]]
(ii) Roosevelt Management Unit Map follows:
[GRAPHIC] [TIFF OMITTED] TR19OC05.006
[[Page 60997]]
(11) Salton Management Unit.
(i)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Salton......................................... San Felipe Creek....................... 33.145510 -116.544860 33.184870 -116.623790
--------------------------------------------------------------------------------------------------------------------------------------------------------
(ii) San Diego Management Unit.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Diego...................................... Agua Hedionda Creek.................... 33.156960 -117.224330 33.148330 -117.253480
Deluz Creek............................ 33.428730 -117.319360 33.416570 -117.321050
Pilgrim Creek.......................... 33.271930 -117.305790 33.241240 -117.335920
San Dieguito River..................... 33.120070 -116.853380 33.090540 -116.892610
San Luis Ray River--West segment....... 33.304240 -116.989540 33.202520 -117.389560
San Luis Rey River--East segment--1.... 33.273480 -116.962270 33.295780 -116.978050
San Luis Rey River--East segment--2.... 33.262670 -116.927970 33.260640 -116.944880
San Luis Rey River--East segment--3.... 33.256180 -116.898390 33.256110 -116.907120
San Luis Rey River--East segment--4.... 33.272450 -116.881990 33.271960 -116.878110
San Luis Rey River--East segment--5.... 33.240720 -116.764750 33.270630 -116.828580
San Margarita River.................... 33.432130 -117.197380 33.402580 -117.255860
Temecula Creek......................... 33.397690 -116.809070 33.426680 -116.847560
Temescal Creek......................... 33.177900 -116.848790 33.120070 -116.853380
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 60998]]
(iii) Salton and San Diego Management Unit Maps follow:
[GRAPHIC] [TIFF OMITTED] TR19OC05.007
[[Page 60999]]
[GRAPHIC] [TIFF OMITTED] TR19OC05.008
(12) Santa Ana Management Unit.
(i)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Santa Ana...................................... Bear Creek............................. 34.242210 -116.977290 34.160970 -117.015100
Mill Creek............................. 34.076650 -116.844390 34.089290 -117.039560
Oak Glen Creek......................... 34.048340 -116.939470 34.052820 -116.986090
Santa Ana River--East segment.......... 34.151300 -116.735070 34.119560 -117.090380
Santa Ana River--West segment.......... 34.081720 -117.259830 34.019510 -117.368930
Waterman Canyon........................ 34.186350 -117.272120 34.216970 -117.290940
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 61000]]
(ii) Santa Ana Management Unit Map follows:
[GRAPHIC] [TIFF OMITTED] TR19OC05.009
(13) Santa Ynez Management Unit.
(i)
----------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
----------------------------------------------------------------------------------------------------------------
Santa Ynez.................... Santa Ynez River 34.597290 -120.174410 34.659670 -120.439490
----------------------------------------------------------------------------------------------------------------
[[Page 61001]]
(ii) Santa Ynez Management Unit Map follows:
[GRAPHIC] [TIFF OMITTED] TR19OC05.010
[[Page 61002]]
(14) Upper Gila Management Unit.
(i)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Gila..................................... Gila River--East segment--1............ 33.076740 -108.491160 33.004370 -108.560150
Gila River--East segment--2............ 32.995070 -108.566320 32.987960 -108.570190
Gila River--East segment--3............ 32.984180 -108.571800 32.982890 -108.573220
Gila River--East segment--4............ 32.980550 -108.575780 32.977840 -108.577660
Gila River--East segment--5............ 32.958940 -108.597440 32.958010 -108.599150
Gila River--East segment--6............ 32.955270 -108.604210 32.795670 -108.597480
Gila River--Middle East segment........ 32.727070 -108.675580 32.723890 -109.101250
Gila River--Middle West segment........ 32.882390 -109.506890 33.094110 -110.056150
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 61003]]
(ii) Upper Gila Management Unit Maps follow:
[GRAPHIC] [TIFF OMITTED] TR19OC05.011
[[Page 61004]]
[GRAPHIC] [TIFF OMITTED] TR19OC05.012
[[Page 61005]]
(15) Upper Rio Grande Management Unit.
(i)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management unit Rivers Start lat Start lon End lat End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Rio Grande............................... Coyote Creek........................... 36.193960 -105.230880 36.122910 -105.217570
Rio Grande--North segment.............. 36.336150 -105.733810 36.090460 -106.066250
Rio Grande del Rancho.................. 36.338610 -105.601060 36.254780 -105.579670
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 61006]]
(ii) Upper Rio Grande Map Management Unit Map follows:
[GRAPHIC] [TIFF OMITTED] TR19OC05.013
[[Page 61007]]
(16) Verde Management Unit.
(i)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Verde.......................................... Verde River-North segment--1........... 34.750760 -112.017580 34.628670 -111.899680
Verde River-North segment--2........... 34.614280 -111.898960 34.465930 -111.781330
Verde River-South segment--1........... 34.282320 -111.685650 34.072320 -111.716420
Verde River-South segment--2........... 33.984470 -111.708580 33.944900 -111.682380
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 61008]]
(ii) Verde Management Unit Map follows:
[GRAPHIC] [TIFF OMITTED] TR19OC05.014
[[Page 61009]]
(17) Virgin River/Pahranagat Management Unit.
(i)
----------------------------------------------------------------------------------------------------------------
Management unit River Start lat Start lon End lat End lon
----------------------------------------------------------------------------------------------------------------
Virgin........................ Virgin River.... 37.132920 -113.422990 36.666210 -114.310410
----------------------------------------------------------------------------------------------------------------
(ii) Virgin River/Pahranagat Management Unit Map follows:
[GRAPHIC] [TIFF OMITTED] TR19OC05.015
Dated: September 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-20144 Filed 10-18-05; 8:45 am]
BILLING CODE 4310-55-C