Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Southwestern Willow Flycatcher (Empidonax traillii extimus)

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.

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

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

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.

(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

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

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

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

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-

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://

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

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

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).

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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

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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

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.

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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.

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

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Comment:

One comment stated that the economic analysis should

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

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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

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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

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

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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

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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.

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.

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

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.

(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 Management Unit

0

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

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

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 (Ca

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