# Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Western Distinct Population Segment of the Yellow-Billed Cuckoo

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2021-07402

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 21, 2021
- **Citation:** 86 FR 20798

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2013-0011; FF09E21000 FXES11110900000 212]
RIN 1018-BE29
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Western Distinct Population Segment of the Yellow-Billed Cuckoo

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the western distinct population segment of the yellow-billed cuckoo (western yellow-billed cuckoo) (
Coccyzus americanus
) under the Endangered Species Act. In total, approximately 298,845 acres (120,939 hectares) are now being designated as critical habitat in Arizona, California, Colorado, Idaho, New Mexico, Texas, and Utah. This rule extends the Act's protections to critical habitat for this species.

DATES:

This rule is effective May 21, 2021.

ADDRESSES:

This final rule is available on the internet at
http://www.regulations.gov,
and the Sacramento Fish and Wildlife Office website at
http://www.fws.gov/sacramento.
Comments and materials we received, as well as supporting documentation we used or developed in preparing this rule, are available for public inspection at
http://www.regulations.gov at
Docket No. FWS-R8-ES-2013-0011.

The coordinates or plot points or both from which the maps are generated are included in the decisional record for this critical habitat designation and are available at
http://www.regulations.gov
at Docket No. FWS-R8-ES-2013-0011 and on the Service's website at
http://www.fws.gov/sacramento.

FOR FURTHER INFORMATION CONTACT:

Michael Fris, Field Supervisor, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, Sacramento, California 95825; or by telephone 916-414-6600. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Scope of this rule.
The information presented in this final rule pertains only to the western distinct population segment of the yellow-billed cuckoo (western yellow-billed cuckoo) (DPS). Any reference to the “species” or to the western yellow-billed cuckoo within this document only applies to the DPS and not to the yellow-billed cuckoo as a whole unless specifically expressed. A complete description of the DPS and area associated with the DPS is contained in the proposed and final listing rules for the western yellow-billed cuckoo published in the
Federal Register
(78 FR 61621, October 3, 2013, and 79 FR 59992, October 3, 2014).

Why we need to publish a rule.
Under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
et seq.;
hereafter “Act” or “ESA”), any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule.

What this document does.
This is a final rule to designate critical habitat for the western yellow-billed cuckoo. This final designation of critical habitat identifies areas that we have determined, based on the best scientific and commercial information available, are essential to the conservation of the species or otherwise essential for its conservation. After exclusions of areas under section 4(b)(2) of the Act, the final critical habitat comprises 63 units and is located in the States of Arizona, California, Colorado, Idaho, New Mexico, Texas, and Utah. The total change in area as a result of exclusions or changes from the revised proposed designation is a reduction of approximately 194,820 acres (ac) (78,840 hectares (ha)). In addition, some of the areas removed did not contain the physical or biological features or meet our criteria for critical habitat for the western yellow-billed cuckoo and were identified based on comments or additional review. The total area excluded is approximately 172,490 ac (69,808 ha).

The basis for our action.
Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat. Section 4(b)(2) also authorizes the Secretary to exclude areas from the critical habitat if the benefits of excluding the areas outweigh the benefits of including the areas, unless exclusion would result in extinction of the species.

Peer review and public comment.
We sought comments from six independent specialists to ensure that our designation is based on scientifically sound data and analyses. In 2014, we obtained opinions from four knowledgeable individuals with scientific expertise to review our technical assumptions, analysis, and whether or not we had used the best scientific data available. These peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated in this final designation of critical habitat. We also received comments from one of the peer reviewers on our 2020 revised proposed rule. We considered all comments and information received from the peer reviewer, species experts, and the public during the comment period for the 2014 proposed and the 2020 revised proposed designation of critical habitat.

Previous Federal Actions

On October 3, 2013 (78 FR 61621), we published a proposed rule to list the western distinct population segment (DPS) of the yellow-billed cuckoo as threatened. On August 15, 2014 (79 FR 48547), we published a proposed rule to designate critical habitat for the DPS. On October 3, 2014 (79 FR 59992), we published the final listing rule, which added the western yellow-billed cuckoo to the List of Endangered and Threatened Wildlife in title 50 of the Code of Federal Regulations at 50 CFR 17.11(h) as a threatened species. On February 27, 2020 (85 FR 11458), we published a revised proposed critical habitat designation and opened a public

comment period that closed on April 27, 2020. On September 16, 2020 (85 FR 57816), we published a not-warranted 12-month finding on a petition to delist the western yellow-billed cuckoo. Please refer to the proposed and final listing and revised proposed critical habitat rules for the western yellow-billed cuckoo published in the
Federal Register
for a detailed description of previous Federal actions concerning this species.

Summary of Changes From the Revised Proposed Rule

We reviewed the site-specific comments related to critical habitat for the western yellow-billed cuckoo (see Summary of Comments and Recommendations), completed our analysis of areas considered for exclusion under section 4(b)(2) of the Act, reviewed our analysis of the Physical or biological features (PBFs) essential to the long-term conservation of the western yellow-billed cuckoo, reviewed the application of our conservation strategy and criteria for identifying critical habitat across the range of the western yellow-billed cuckoo to refine our designation, and completed the economic analysis of the designation. This final rule incorporates changes to our 2020 revised proposed critical habitat rule based on the comments that we received, and have responded to in this document, and considers efforts to conserve the western yellow-billed cuckoo.

As a result, our final designation of critical habitat reflects the following changes from the February 27, 2020, revised proposed rule (85 FR 11458):

(1) We revised unit areas based on comments received regarding areas that did or did not contain the physical or biological features essential to the conservation of the species.

(2) We revised Federal, Tribal, and private land ownership information regarding Unit 70 (UT-1) based on information received from Duchesne County, Utah.

(3) We excluded approximately 172,490 ac (69,808 ha) from entire or portions of Units as identified in Table 3, Areas Excluded by Critical Habitat Unit.

(4) In the revised proposed rule, we misidentified the acreage of off-site restoration areas identified in the Lower Colorado River Multi-Species Conservation Program Habitat Conservation Plan (LCR MSCP HCP). We now acknowledge this miscalculation and as a result of the HCP providing conservation for the western yellow-billed cuckoo and its habitat, we are excluding from this designation all lands that were identified as proposed critical habitat within the planning area.

(5) The U.S. Forest Service (USFS) suggested that the Tucson Audubon Society (MacFarland and Horst 2015) did not survey Unit 44 (AZ-32, California Gulch). We corrected the unit description with survey information used to determine occupancy for this unit.

(6) We updated the climate change information with new references based on comments.

(7) We corrected a number of errors in unit length, acreage, and descriptions.

(8) We clarified that Rockhouse Demonstration Site on the Salt River inflow to Roosevelt Lake was not included as critical habitat.

(9) In the revised proposed rule, we failed to identify potential exclusions for San Carlos Apache parcels on the lower San Pedro River and Aravaipa Creek and for Eagle Creek on the San Carlos Apache Tribal lands. These Tribal lands have been excluded. We corrected ownership and operation of San Carlos Apache Reservoir and Coolidge Dam.

Supporting Documents

In the revised proposed critical habitat rule, we stated that a draft analysis document under the National Environmental Policy Act (NEPA) for the designation of critical habitat was made available to the public for comment. We have now finalized an environmental assessment with a finding of no significance under NEPA. The document and finding of no significance is available at
http://www.regulations.gov
at Docket No. FWS-R8-ES-2013-0011 and from the Sacramento Fish and Wildlife Office at
http://www.fws.gov/sacramento.
See Required Determinations section below for a discussion of our NEPA obligations for this designation.

We also finalized our information pertaining to our economic analysis after considering public comment on the draft document. The final document (IEc 2020, entire) is available at
http://www.regulations.gov
at Docket No. FWS-R8-ES-2013-0011.

Species Information

The western yellow-billed cuckoo is a migratory bird species, traveling between its wintering grounds in Central and South America and its breeding grounds in North America (Continental United States and Mexico) each spring and fall often using river corridors as travel routes. Habitat conditions through most of the western yellow-billed cuckoo's range are often dynamic and may change condition or location within or between years depending on environmental conditions, vegetation growth, tree regeneration, plant maturity, stream dynamics, and sediment movement and deposition. The species' major food resources (insects) are also similarly variable in abundance and distribution. As a result, the western yellow-billed cuckoo's use of an area is tied to the area's habitat condition and food resources, which as stated, can be variable between and within years. This variability in resources may cause the western yellow-billed cuckoo to move between areas in its wintering or breeding grounds to take advantage of habitat conditions and food availability. For a thorough discussion of the western yellow-billed cuckoo's biology and natural history, including limiting factors and species resource needs, please refer to the proposed and final rules to list this species as threatened published in the
Federal Register
on October 3, 2013 (78 FR 61621), and October 3, 2014 (79 FR 59992), (available at
http://www.regulations.gov
at Docket No. FWS-R8-ES-2013-0104), and the proposed critical habitat rule, which published August 15, 2014 (79 FR 48548) (available at
http://www.regulations.gov
at Docket No. FWS-R8-ES-2013-0011).

Summary of Comments and Recommendations

We requested written comments from the public on the initial proposed (2014) and revised proposed (2020) designation of critical habitat for the western yellow-billed cuckoo during multiple comment periods. The first comment period opened on August 15, 2014, and closed on October 14, 2014 (79 FR 48548). The comment period was reopened from November 12, 2014, to January 12, 2015 (79 FR 67154). On December 2, 2014, we announced a public hearing which was held in Sacramento, California, on December 18, 2014 (79 FR 71373). On February 27, 2020, we opened a comment period on the revised proposed critical habitat (85 FR 11458). The comment period closed on April 27, 2020.

In our 2014 proposed rule designating critical habitat, we contacted appropriate Federal, State, Tribal governments, and local agencies; scientific organizations; and other interested parties, and invited them to comment on the proposed critical habitat designation and 2014 draft economic analysis. We also held a public hearing in December 2014 in Sacramento, California, and received comments from scientific experts,

landowners, and other stakeholders regarding the proposed designation. On February 27, 2020, with the publication of the revised proposed rule (85 FR 11458), we again contacted all interested parties including appropriate Federal and State agencies, Tribal governments, scientific experts and organizations, and other interested parties and invited them to submit written comments on the revised proposal by April 27, 2020. We stated that any comments received as a result of the 2014 proposed rule need not be resubmitted and that they would be addressed in this final rule. Newspaper notices inviting general public comment were published in numerous locations throughout the range of the critical habitat designation for both the original and revised proposed rules.

During the comment period on the 2014 proposed rule, we received nearly 1,200 written comments as well as over 87,000 form letters on the proposed critical habitat designation or the draft economic analysis (IEc 2013, entire). During the comment period on the revised proposed rule, we received an additional 99 comment letters and over 6,000 form letters on the revised proposed critical habitat designation or the draft economic analysis (IEc 2019, entire; IEc 2020, entire). We also received from several parties additional requests for exclusion of areas that were not identified in the revised proposed rule. We reviewed each exclusion request and whether the requester provided information or a reasoned rationale to initiate an analysis or support an exclusion (see Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act: 81 FR 7226; February 11, 2016). All substantive information provided during each comment period has either been incorporated directly into this final determination or addressed in our responses below.

Peer Review

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review actions under the Act, we solicited expert opinion on the 2014 proposed critical habitat from six knowledgeable individuals with scientific expertise that includes familiarity with the western yellow-billed cuckoo and its habitat, biological needs, and threats. We received responses from four of the peer reviewers. In 2020, during the public comment period, we received comments from one of the peer reviewers regarding our revised proposed rule. We addressed the 2014 and 2020 peer reviewer comments in this final rule as appropriate.

We reviewed all the comments we received from the peer reviewers for substantive issues and new information regarding the western yellow-billed cuckoo and its habitat use and needs. The peer reviewers generally concurred with the information regarding the western yellow-billed cuckoo and its habitat. In some cases, they provided additional information, clarifications, and suggestions to improve the designation. Our revised designation was developed in part to address some of the concerns and information raised by the 2014 peer reviewers. The reviewers also provided or corrected references we cited in the proposed rule. The additional details and information have been incorporated into this final listing rule as appropriate. Substantive comments we received from peer reviewers as well as Federal, State, Tribal, and local governments, nongovernmental organizations, and the public are outlined below.

Comment 1:
One peer reviewer recommended discussion of the role nonnative plant species other than tamarisk (salt cedar) (
Tamarix
spp.) play in supporting western yellow-billed cuckoo. The peer reviewer noted that particularly in western Colorado, Russian olive (
Elaeagnus angustifolia
) forms dense stands dominating the understory of the largest cottonwood galleries along areas identified as critical habitat. The peer reviewer provided information on a confirmed nest on July 21, 2008, in Russian olive in revised proposed Unit 69 (CO-2) along the North Fork of the Gunnison River near the town of Hotchkiss. The peer reviewer commented that the possible effects to western yellow-billed cuckoo and its habitat should be considered during widespread removal of Russian olive and the reviewer recommended rapid replacement with native shrubs.

Our Response:
In response to this comment, in the 2020 revised proposed critical habitat, we included discussion of the presence and use of nonnative plant species, including Russian olive, in western yellow-billed cuckoo habitat (85 FR 11458, at pp. 11466, 11469, 11473).

Comment 2:
One peer reviewer suggested adding additional areas along the Sacramento River, California, based on future plans for restoration of those sites.

Our Response:
We based our designation of areas by selecting occupied breeding habitat for the western yellow-billed cuckoo. Our conservation strategy and criteria for identifying occupied areas is supported by existing information on species' abundance and distribution. In our analysis, we found that existing habitat availability along the Sacramento River is sufficient to support a larger number of breeding birds. As a result, in this final rule, we do not include additional unoccupied areas, especially if those areas have not been restored to contain the habitat features necessary for the species.

Comment 3:
One peer reviewer suggested including areas along river segments to allow for natural stream processes such as bank cutting and deposition to occur, especially when hardened banks limit this natural process, thereby limiting the establishment of riparian vegetation.

Our Response:
In determining boundaries for the critical habitat along river segments, we evaluated aerial imagery to map those vegetated areas along the river segments that we determined contain the physical or biological features (PBFs) essential to the conservation of the species and which may require special management considerations or protection. In most cases, we included areas along rivers and streams that would allow for natural stream processes such as cutting and deposition that would allow for such meandering of the river to take place.

Federal Agency Comments

Comment 4:
USFS stated that the critical habitat designation in Unit 64 CA-2 at Lake Isabella, California, could affect recreation and grazing opportunities on USFS lands. The U.S. Army Corps of Engineers (Corps) also commented that designating areas within the floodplain would disrupt flood control operations and that portions of the unit within the floodplain of Lake Isabella under conservation easement should be removed or excluded.

Our Response:
As a result of the Federal agency and other public comments (Kern County and Kern River Watermaster) on the 2014 proposed designation and discussions with the Corps since the publication of the 2020 revised proposed designation, we revised the extent of the critical habitat within Unit 64 at Lake Isabella to avoid those areas typically inundated by the lake or areas within the floodplain. Although the western yellow-billed cuckoo may use these areas during periods of drought or other times when the lake is drawn down, these areas are temporary and extremely variable and may not contain the physical or

biological features on a long-term basis. We also identified and excluded portions of the unit under conservation easement under section 4(b)(2) of the Act. Our rationale for excluding certain portions of the unit is outlined below. See Exclusions,
Private or Other Non-Federal Conservation Plans or Agreements and Partnerships, in General.

Comment 5:
The Corps requested exclusion of Unit 4 (AZ-2) and the portion of Unit 31 (AZ-29) for operation and maintenance of Alamo Dam and Lake in Arizona.

Our Response:
We identified the entire Unit 4 (AZ-2) at Alamo Lake and a portion of Unit 31 (AZ-29) upstream of the lake on Big Sandy River for possible exclusion in our proposed rule and have excluded these areas based on the Arizona Game and Fish Department (AGFD) Alamo Lake State Wildlife Area management plan. We also acknowledge the multi-year process underway among the Corps and partners to develop a long-term operation plan for Alamo Dam and Lake that benefits environmental resources while meeting the dam's maintenance needs (USACE 2020, entire). Although the original authority for the Corps' Alamo Dam and Lake was for flood control, the Water Resources Development Act of 1996 (Pub. L. 104-303) authorized the operation of the dam to provide fish and wildlife benefits both upstream and downstream of the dam as long as these actions do not reduce flood control and recreation benefits. The revised operations are designed to improve the currently degraded riparian western yellow-billed cuckoo and southwestern willow flycatcher habitat (
Empidonax traillii extimus
) by providing the magnitude, timing, and duration of flow that encourages regeneration and maintenance of riparian vegetation (USACE 2020, pp. 14-16). Benefits are expected both upstream and downstream of Alamo Dam (see Exclusions,
Private or Other Non-Federal Conservation Plans or Agreements and Partnerships, in General
).

Comment 6:
The USFS reiterated that overgrazing does not occur on most of the 20 units in the Coronado National Forest that were proposed as critical habitat. The USFS requested removal of the statement regarding overgrazing from the final rule.

Our Response:
Our discussion of overgrazing is in reference to the special management and protections that may be required in areas identified as critical habitat. Grazing operations that are properly managed, such as USFS lands under management under the Coronado National Forest Land Management Plan and Allotment Management Plans, may be in compliance with grazing standards but may still result in reduced riparian habitat quality and quantity over time for western yellow-billed cuckoos.

Comment 7:
The Department of Energy (DOE) through the Western Area Power Administration (WAPA) and two local private energy companies requested information on how maintaining rights-of-way for electrical power transmission lines would be treated in areas of critical habitat and requested that these areas be excluded from the designation. The commenters stated that the designation would limit maintenance of the rights-of-way and potentially cause increased risk of wildfires, power outages, or injury to human life and property.

Our Response:
With respect to rights-of-way maintenance activities in areas of critical habitat, Federal agencies that authorize, carry out, or fund actions that may affect listed species or designated critical habitat are required to consult with us to ensure the action is not likely to jeopardize listed species or destroy or adversely modify designated critical habitat. This consultation requirement under section 7 of the Act is not a prohibition of Federal agency actions; rather, it is a means by which they may proceed in a manner that avoids jeopardy or adverse modification. Even in areas absent designated critical habitat, if the Federal agency action may affect a listed species, consultation is still required to ensure the action is not likely to jeopardize the species. Because the areas designated as critical habitat are occupied and consultation will be required to meet the jeopardy standard, the impact of the critical habitat designation should be minimal and administrative in nature. In some instances, we have worked with entities with on-going maintenance requirements such as in rights-of-way to develop programmatic consultations that help to conserve habitat while still meeting an entity's operational responsibilities, and we are willing to meet with DOE and WAPA to discuss potential programmatic consultation activities. In addition, existing consultation processes also allow for emergency actions for wildfire and other risks to human life and property; critical habitat would not prevent the commenters from fulfilling those obligations. Lastly, we note that actions of private entities for which there is no Federal nexus (
i.e.,
undertaken with no Federal agency involvement) do not trigger any requirement for consultation.

In regard to the commenter's request to exclude their rights-of-way areas from the critical habitat designation, the commenters provided general statements of their desire to be excluded but no information or reasoned rationale as described in our preamble discussion in our policy on exclusions (see Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act: 81 FR 7226; February 11, 2016) (Policy on Exclusions) or as described in our 2020 revised proposed rule (85 FR 11502). For the Service to properly evaluate an exclusion request, the commenter must provide information concerning how their rights-of-way maintenance activities would be limited or curtailed by the designation, and hence the need for exclusion. In addition, as noted above, the requirement to consult with us on Federal actions that may affect designated critical habitat is designed to allow actions to proceed while avoiding destruction or adverse modification of critical habitat.

In the Policy on Exclusions, we outline the procedures we undertake when determining if an area should or should not be excluded. In determining whether or not to exclude an area, the Secretary is given a great deal of discretion for undertaking an exclusion analysis or determining to exclude an area. In our review of their request of exclusion, we determined that the effect of having critical habitat designated in their rights-of-way would be to require consultation with us for those Federal agency actions that may affect such designated critical habitat. In addition, we determined that this consultation requirement would not preclude these rights-of-way maintenance activities from occurring, and subsequently would not result in a potential for increased risk of wildfires, power outages, or injury to human life and property.

Comment 8:
The U.S. Bureau of Reclamation (Reclamation) requested that the full pools of Elephant Butte and Caballo Reservoirs be excluded from critical habitat designation based on a precedent set by the Rio Grande silvery minnow (
Hybognathus amarus
) designated critical habitat, a variety of commitments associated with section 7 consultations and their Southwestern Willow Flycatcher and Yellow-billed Cuckoo Management Plan. The full pool of Elephant Butte Reservoir is considered to be River Mile (RM) 62 by Reclamation.

Our Response:
The Service commends Reclamation on their decision to allow for the temporary habitat to develop within Elephant Butte and Caballo Reservoirs and other commitments identified in their Southwestern Willow Flycatcher and Yellow-billed Cuckoo

Management Plan. We have reviewed the information presented by Reclamation for Elephant Butte Reservoir and information on the species use and habitat conditions for the western yellow-billed cuckoo and determined that an exclusion for Elephant Butte Reservoir (Unit 37, NM-6B) to RM 54 is appropriate for exclusion.

We also reviewed Reclamation's request for excluding the two areas associated with Caballo Reservoir (Unit 39, NM-8A and NM-8B) and determined that exclusion of these areas is appropriate. See Exclusions (
Federal Lands
) for our description and analysis for excluding Elephant Butte and Caballo Reservoirs under section 4(b)(2) of the Act from the final designation.

Comment 9:
Reclamation is concerned that critical habitat could impose unnecessary burdens on water storage and delivery operations in Arizona for Reclamation and its partners. The areas of concern include: Habitat downstream of Horseshoe Dam (Unit 11, AZ-9A); the eastern part of Unit 17 (AZ-15) on the Lower San Pedro and Gila Rivers upstream of Dripping Springs Wash to San Carlos Reservoir on the Gila River because this reach cuts through a narrow canyon, is devoid of vegetation, and surveys have not detected western yellow-billed cuckoos; the 2020 proposed Unit 11 (AZ-9B Horseshoe Dam) extension from the south end of Horseshoe Reservoir to below Horseshoe Dam because the additional area downstream to Sheep Creek is canyon-bound with narrow stringers of trees and does not currently support suitable breeding or foraging habitat and because the lower segment occurs within the Bartlett Reservoir operating space that precludes establishment and persistence of suitable nesting and foraging habitat.

Our Response:
Habitat for many species, including the western yellow-billed cuckoo, along rivers, dams, and reservoirs fluctuates over time as habitat transitions due to natural or human-induced succession. At any given time across the range, habitat may be regenerating, growing into suitability, growing out of suitability, desiccated from drought, or killed from scouring floods or fire. These processes are expected to occur over time in critical habitat. We agree that proposed critical habitat should not have been identified in the steeper and narrower portions of Unit 17 (AZ-15) on the Gila River and have removed these areas from the final designation. Although some breeding and foraging habitat exists in this upper reach, it is of lesser quality than habitat farther downstream. We also agree that the southern boundary of the additional Unit 11 (AZ-9B Horseshoe Dam) segment where PBFs are lacking does not constitute critical habitat. The southern terminus of this extension is now the same as the terminus of the critical habitat for the southwestern willow flycatcher. In the revised proposed rule, we identified portions of Unit 11 (AZ-9A and AZ-9B) for consideration to be excluded under the Salt River Project's (SRP's) Horseshoe and Bartlett Reservoir HCP and excluded these areas from the final designation (see
Private or Other Non-Federal Conservation Plans Related to Permits Under Section 10 of the Act
).

Comment 10:
Reclamation requested a correction to our description of how western yellow-billed cuckoo habitat is maintained in Unit 1 (CA/AZ-1) and Unit 2 (CA/AZ-2) as a result of the LCR MSCP. Reclamation points out the inaccuracy of the statement that the hydrologic processes needed to regenerate and maintain breeding habitat occur within these units but depends on river flows and flood timing. The majority of the western yellow-billed cuckoo breeding that occurs on the mainstem of the Lower Colorado River, including habitat at Palo Verde Ecological Preserve, Cibola Valley Conservation Area, Cibola National Wildlife Refuge Unit #1 Conservation Area, and the `Ahakhav Tribal Preserve, has been created through tree plantings and can be maintained only through active irrigation as the habitat is disconnected from the river channel on the upland side of the levees.

Our Response:
We have reviewed the information and have revised the information regarding Unit 1 and Unit 2 in this final rule to clarify that most of the western yellow-billed cuckoos breeding along the Lower Colorado River are breeding in revegetation sites created by the LCR MSCP. Because these units have been excluded (see Exclusions) from the final designation, we removed the Unit 1 and 2 descriptions and provide them in our supporting documentation (Service 2020b, entire).

Comment 11:
The U.S. Customs and Border Protection under the Department of Homeland Security (DHS/CBP) requested that the Roosevelt Reservation portion of critical habitat in Units 1, 16, 20, 21, 44, 45, 52, and 61 along the U.S./Mexico border be considered for exclusion under section 4(b)(2) of the Act for national security reasons and for being exempt from environmental regulations (DHS 2020, entire). The Roosevelt Reservation is a 60-ft (18-m) wide strip of land owned by the Federal Government along the United States side of the U.S./Mexico border in California, Arizona, and New Mexico.

Our Response:
We have reviewed DHS/CBP's request and have excluded the 60-ft (18-m) area of the Roosevelt Reservation from the final designation. Please see Exclusions (
Exclusions Based on Impacts on National Security and Homeland Security
) for our analysis of the DHS/CBP request for exclusion for border units within the Roosevelt Reservation.

Comment 12:
The U.S. International Boundary and Water Commission (IBWC), expressed concern that the designation of critical habitat along the Rio Grande and other areas (Units 1, 2, 37, 39, and 41) would hinder the implementation of the 1906 Convention with Mexico or the requirements to deliver water under the Rio Grande Compact. Therefore they requested exclusion of their lands from these units. IBWC also requested an exclusion of Unit 20 (AZ-18 Santa Cruz River) to ensure its permit requirements and operation of the Nogales International Wastewater Treatment Plant are not impacted.

Our Response:
Several of the areas identified by the IBWC have already been excluded entirely or in part from the final designation based on conservation and management of the areas by other entities and thus are not addressed further here. These areas include Unit 1 and 2 along the lower Colorado River, portions of Unit 37 on the Rio Grande, Unit 39 at the Caballo Reservoir, and Unit 41 at Seldon Canyon and Radium Springs (see Exclusions,
Private or Other Non-Federal Conservation Plans or Agreements and Partnerships, in General Private or Other Non-Federal Conservation Plans or Agreements and Partnerships, in General
) for a full discussion of our exclusion analyses). We note that IBWC would still need to consult for actions which may affect the species under section 7 of the Act to ensure they do not jeopardize the species. The only area remaining within the designation is a portion of Unit 37 (NM-6B) at Elephant Butte Reservoir.

With respect to the remaining area within Unit 37 (NM-6B), we have no information indicating that designation of these areas as critical habitat would prevent IBWC from implementing the treaty or meeting their water delivery commitments, or would otherwise disrupt water management actions. For example, our economic analysis did not identify water delivery or other water management actions as incurring significant costs as a result of designating these areas, nor did it anticipate that water operations would

be significantly affected. Moreover, the IBWC did not specify whether it was requesting exclusion based upon national-security or homeland-security reasons, nor explain how treaty implementation would fit within these possible exclusions. IBWC did not provide any other information or a reasonably specific justification showing an incremental impact to national security or homeland security from designation, as described in our preamble discussion in our Policy on Exclusions (81 FR at 7231). Nor did the IBWC provide any reasoned explanation of how treaty implementation would be affected by a designation, and thus we have no basis to exclude this area based on treaty commitments. Additionally, our 2020 revised proposed rule designating critical habitat for the western yellow-billed cuckoo requested information on how properties for which exclusions were requested are managed and protected, noting that without this information, we could not weigh the benefits of a potential exclusion in comparison to inclusion (85 FR 11458, 11502 (February 27, 2020)). Having received no information, we have no basis to exclude the requested portions of Unit 37.

In regard to the IBWC's request to exclude areas in Unit 20 due to potential impacts to waste water treatment facilities, we have no information indicating that such impacts are likely. Due to the arid nature of the Southwest and lack of consistent water flows, waste water treatment facilities often assist in maintaining river flows and may benefit riparian habitat (Luthy
et al.
2015, entire). As a result, we do not anticipate significant changes, if any, for the operation of waste water treatment facilities due to the designation of critical habitat. Moreover, the IBWC again did not provide any supporting information, as described above according to our Policy on Exclusions (81 FR at 7231), or our request for information in the 2020 revised proposed rule designating critical habitat (85 FR at 11502). As a result, we could not initiate a review of information for a potential exclusion and did not exclude areas along the Santa Cruz River from Unit 20.

Comment 13:
The IBWC provided two comments regarding the units designated along the U.S./Mexico border. First, they concurred with the DHS/CBP's request for the exclusion of the 60-ft (18-m) Roosevelt Reservation in California, Arizona, and New Mexico, stating they coordinate with DHS/CBP on vegetation clearing within the 60-ft (18-m) Roosevelt Reservation. Second, IBWC recommended an additional exclusion so that the exclusion would extend to 150-ft (46-m) from the U.S./Mexican border for national security and access reasons. IBWC deferred to the National Park Service (NPS) for critical habitat designated along the border in Texas (Unit 72, TX-1).

Our Response:
We have excluded the 60-ft (18-m) Roosevelt Reservation from this final designation based on DHS/CBP's request in support of their national-security mission (see
Comment 11
and Exclusions,
Exclusions Based on Impacts on National Security and Homeland Security
). We are not aware of any reason why this 60-ft (18-m) exclusion would be insufficient to provide security and access, or why extending the exclusion out to 150-ft (46-m) along the border with Mexico would be necessary for ensuring security and access. The IBWC provided general statements of their desire to be excluded but no such information or reasoned rationale that the critical habitat designation would impact their activities as described in our preamble discussion in our Policy on Exclusions (81 FR at 7231), or as requested in our 2020 revised proposed rule (85 FR at 11502). Moreover, the IBWC did not provide information showing how designating areas beyond the 60-foot exclusion would harm national-security or homeland-security interests. In the preamble to the Policy on Exclusions, we made clear that a Federal agency's reference to national-security concerns does not in itself require an exclusion. Rather, the Federal agency must “provide a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat” (81 FR at 7231). In light of the absence of information on, or reasonably specific justification of, how designating these areas could raise national-security concerns, we do not consider this request to meet the initial burden described in our policy that the agency requesting a national security exclusion must provide a reasonably specific justification (81 FR at 7231). We reiterated this requirement to support a request for exclusion based on national security reasons in our 2020 revised proposed rule designating critical habitat for the western yellow billed cuckoo (85 FR at 11503).

State Comments

Comment 14:
The New Mexico Interstate Stream Commission requested that Unit 37 (NM-6A and NM-6B, Middle Rio Grande) be excluded in entirety based on the efforts of the Middle Rio Grande Endangered Species Collaborative Program (Program) and that this Program should be treated similarly to that of the LCR MSCP and others.

Our Response:
In our analysis for exclusions for Unit 37, we decided to exclude the entire NM-6A (7,238 ac (2,929 ha)) and portions of NM-6B (11,367 ac (4,600 ha)). Exclusion of Unit 37 (NM-6A) was based on Tribal management and partnerships through the Santa Ana Pueblo, the Santa Domingo Tribe, Cochiti Pueblo, and the San Felipe Pueblo (see Exclusions,
Tribal Lands
). Because the area identified in Unit 37, NM-6B is part of Elephant Butte Reservoir managed by Reclamation, exclusion of portions of that unit were based on management of the area (see
Comment 8
above and Exclusions,
Federal Lands
).

In response to the Commission's request that the two units be excluded in their entirety based on the Middle Rio Grande Endangered Species Collaborative Program (Program), we have determined that the exclusion would not be appropriate for several reasons. Although we commend the Program for investing time, effort, and funding for conservation on the Middle Rio Grande, the habitat conservation efforts to date that have been implemented are focused on instream restoration for the Rio Grande silvery minnow, and conservation efforts for the western yellow-billed cuckoo have been mostly associated with surveying, monitoring, and non-habitat related efforts (MRGESCP 2003, entire). In identifying critical habitat for the western yellow-billed cuckoo, we identified those areas that meet the definition of critical habitat at section 3(5)(A) of the Act. Although management actions for one listed species may overlap other species' habitat or be mutually beneficial to multiple listed species, the physical and biological features in occupied habitat for yellow-billed cuckoo differ from the physical and biological features identified for the Rio Grande silvery minnow. We reviewed the habitat restoration efforts conducted by the Middle Rio Grande Endangered Fish Recovery Program and found that the vast majority of habitat management actions were focused on instream water management and fish habitat and not western yellow-billed cuckoo habitat. Instream habitats do not contain the physical or biological features essential to the conservation of the western yellow-billed cuckoo and therefore are not considered critical habitat. As a result, excluding these areas based on management for listed fish species does not meet our criteria for exclusion.

Comment 15:
We received comments from the Arizona Game and Fish Department (AGFD) on the proposed and revised proposed rule. In 2014, the AGFD suggested removing areas from the proposal based on the areas being in poor condition or not supporting breeding western yellow-billed cuckoos. In 2020, the AGFD expressed that the revised proposed rule was inconsistent, did not clearly define essential habitat, incorrectly identified western yellow-billed cuckoos as a habitat generalist, inappropriately included migration and stop-over habitat that inflates areas needed, did not provide a location where separation of rangewide breeding habitat and southwest breeding occurs, and places regulatory burdens on the State. AGFD also stated that the Service defines all habitats where the species breeds, feeds, migrates, and stops over as critical habitat, thus inappropriately imposing Federal regulatory restrictions on all landowners which will require both Federal and State resources to manage. AGFD commented that time would be more appropriately spent on other conservation programs to benefit listed species. AGFD claimed that the revised designation violates 16 U.S.C. 1532 (5)(C), which states that critical habitat “shall not include the entire geographical area which can be occupied by the threatened or endangered species” and that the Service has arbitrarily chosen to propose an inappropriate designation of critical habitat, and ignore the true intent of the purpose of critical habitat in the revised proposed rule. The AGFD questioned the validity of designating critical habitat for the western yellow-billed cuckoo, if there is not a specific habitat type that can be determined as critical. The proposed rule described a variety of habitat types (
i.e.,
mesquite bosques, tamarisk stands, xeroriparian areas, cottonwood-willow galleries, desert scrub and grassland drainages, etc.) as important breeding habitat. If these habitats are all important breeding habitats, as described, AGFD stated that the species should be considered a habitat generalist and no critical habitat should be designated (
e.g.,
similar to the bald eagle). If this is not the situation, AGFD stated that the revised proposed rule needs to be rescinded and redrafted to remove habitat that is used intermittently or occasionally for breeding from the designation of critical habitat. AGFD also stated that there are several factual inconsistencies in the proposed rule that require the proposed rule be rescinded. These inconsistencies include: An over-inflation of the importance of tamarisk as breeding habitat; unverified breeding pair information; and arbitrary and unsupported estimation of pairs. The AGFD recommended removing unverified units and excluding certain State lands under conservation management and that the Service should assist the States with funds for monitoring western yellow-billed cuckoo populations and allow partners to explore additional methods to restore habitat to benefit the western yellow-billed cuckoo. The AGFD expressed concern that the economic analysis does not fully capture economic impacts to State agencies. The commenter noted that many State agencies receive Federal funds to conduct projects, including wildlife conservation projects. Because of that potential Federal nexus, the commenter suggested that State agencies could incur incremental impacts. Lastly, the AGFD stated that the Service should finalize its determination on the petition to delist the species prior to finalizing critical habitat.

Our Response:
Part of our reasoning for revising our 2014 proposed critical habitat was in response to comments from the AGFD on the description of the physical and biological features needed by the western yellow-billed cuckoo and to remove areas of degraded habitat or not used by the species. As a result of AGFD's and other comments and information received, we removed or reduced a number of areas from the revised proposed designation. We revised the description of the habitat used by the species, including a description of the geographic area where southwest breeding habitat PBFs are found. We are not required to delineate or map a specific boundary line between the identified PBFs as requested by the AGFD.

The Service did not include all habitats where the species breeds, feeds, migrates, and stops over as critical habitat. Our designation of critical habitat focuses on selected areas used for breeding by the western yellow-billed cuckoo, and as a result purposefully does not include all breeding areas used by the species.

We do not consider the western yellow-billed cuckoo to be a habitat generalist. As explained in our revised proposed rule, western yellow-billed cuckoos in ephemeral drainages in the southwestern United States are found in drainages with sparse, patchy, or dense tree cover, high humidity, and increased insect availability. Our description of habitat and inclusion of additional PBFs for the species is due to greater specificity as to the types of habitat used by the western yellow-billed cuckoo and not an abandonment or reclassification of habitat historically described for the species. Ephemeral drainages associated with monsoon events are relatively small and within a specific geographic area in southeastern Arizona.

In response to AGFD's questions regarding our methodology for determining occupancy, we followed the Act's requirement that we determine occupancy based on areas that are occupied at the time of listing. We revised our language within the unit descriptions to more accurately describe occupancy status of the areas. We agree that survey information in Arizona identified by Corman and Magill (2000) cannot provide definitive occupancy or breeding information due to the survey methodology used in the study. We also agree that statewide protocol surveys would provide additional information on western yellow-billed cuckoo distribution and breeding. We used numerous sources to make our determination of occupancy and breeding status for the areas identified as critical habitat; we determined that these sources viewed in combination constitute the best scientific and commercial information available.

Under the Act, we are required to designate critical habitat as long as we find that the designation is prudent and determinable as we did for the western yellow-billed cuckoo. Given that the western yellow-billed cuckoo in Arizona occupies a variety of riparian habitats and its range overlaps with several other listed species, designating critical habitat would potentially provide additional funding through section 6 of the Act and support the State's other conservation programs.

Tamarisk can provide habitat for the western yellow-billed cuckoo, especially in areas where altered river flows have caused the native vegetation to become degraded. We compiled the currently known information for western yellow-billed cuckoo's use of tamarisk and included information in the rule. Western yellow-billed cuckoos breed in tamarisk, especially if mixed with other native habitat.

Regarding economic costs to State agencies, exhibit 3 of the economic analysis presents the unit incremental administrative costs of section 7 consultation used in the economic analysis. The total unit cost presented in that exhibit includes costs to the Service, other Federal agencies, and third parties. State agencies receiving Federal funds to conduct projects would be considered third parties in consultation and thus are represented in the cost estimates produced by the economic analysis. The analysis estimates that the incremental costs

incurred by third parties during the consultation process would range from $510 to $880 per consultation. In addition, the analysis forecasts the likely number of section 7 consultations based on consultations that have occurred since the listing of the western yellow-billed cuckoo in 2014, which have included third parties, such as State agencies. Thus, State agency consultation activity is captured in both the projection of the number of consultations and the unit cost of these consultations.

We completed our status review and published our not warranted 12-month finding in the
Federal Register
on September 16, 2020 (85 FR 57816). We are under a court-ordered deadline to have a final designation submitted to the
Federal Register
by February 5, 2021.

AGFD recommended exclusion of some AGFD properties under HCPs or conservation management. In our evaluation of areas to be excluded from the final designation, we identified the Upper Verde Wildlife Area, the Alamo Lake Wildlife Area, and State lands covered under the LCR MSCP (see Exclusions).

Comment 16:
The California Department of Fish and Wildlife (CDFW) provided additional observation information for the Sacramento Valley (Butte Creek) and for areas adjacent to the Owens River in California (Hogback Creek and Baker Creek) and requested additional areas be considered as critical habitat.

Our Response:
In determining those areas we consider essential to the conservation of the species as critical habitat, we developed a conservation strategy for the western yellow-billed cuckoo that focuses on core areas where the western yellow-billed cuckoo breeds consistently in relatively high numbers or is breeding in areas which are unique. Although the western yellow-billed cuckoo may be found in additional areas throughout its range, not all areas meet our definition of essential as outlined in our conservation strategy. Of the three sites requested by the CDFW to include, only the Butte Creek site has shown to include sufficient numbers of presumably breeding western yellow-billed cuckoos, with the Hogback and Baker Creek sites showing few individuals with only intermittent use. We did not consider the Butte Creek site to meet our designation criteria because the area is not part of the core breeding area. Another nearby site that has been more consistently occupied (Unit 63, CA-1, Sacramento River) and has already been identified as critical habitat meets our conservation goals for this geographic area.

Comment 17:
The California Department of Water Resources (DWR) stated that the designation in Unit 63 (CA-1) along the Sacramento River would cause conflicts with flood management requirements under the Central Valley Flood Protection Act of 2008 (CVFPA). The DWR stated that they have developed the Central Valley Flood Protection Plan (CVFPP) to comply with the CVFPA to improve public safety, environmental stewardship, and long-term economic stability in its management of this critical water resource infrastructure. The DWR requested exclusion of the area based on public safety, economic concerns, and existing management.

Our Response:
We fully support the DWR's mission of water resource management and stream flows and emergency actions necessary to protect the public. As described above, both our Policy on Exclusions and our revised proposed rule indicated that entities requesting exclusion must provide a reasoned rationale in support of the exclusion in order for the Service to conduct a full exclusion analysis. Here, DWR provided general statements of their desire to be excluded but did not provide information or a reasoned rationale on the impact of the designation to its activities for us to initiate an analysis or support an exclusion. As a result, we have determined that the designation of critical habitat would not disrupt their activities for flood management or water delivery because the habitat along the Sacramento River is in areas of natural stream conditions without flood control or water delivery structures managed by the DWR.

Comment 18:
The California Central Valley Flood Protection Board (CVFPB), along with numerous other local water agencies, expressed concern that flood control infrastructure and facilities were within the critical habitat boundary and that the designation would limit the agencies' ability to operate and maintain as well as improve and alter these flood control facilities. The CVFPB identified flood protection features such as levees, weirs, bypasses, water control gates, bridges, pipelines, conduits, irrigation pumps, buildings, structures, and underground and overhead utilities as being those types of flood control features of particular concern.

Our Response:
Critical habitat is defined by the existence of specific physical or biological features for a species that are essential to the conservation of the species and which may require special management considerations or protection. The facilities and features described by the CVFPB do not contain the physical or biological features essential to the conservation of the western yellow-billed cuckoo and thus are not critical habitat. In our description of the physical or biological features, we specifically state that critical habitat does not include humanmade structures (such as buildings, aqueducts, runways, roads, bridges, and other paved or hardened areas as a result of development) and the land on which they are located existing within the legal boundaries of the critical habitat units designated for the species on the effective date of this rule. Due to the scale on which the critical habitat boundaries are developed, some areas within the units' legal boundaries may not contain the physical or biological features and therefore are not considered critical habitat.

Comment 19:
Colorado Department of Natural Resources, Colorado Riverfront Commission, Town of Palisade, Delta County Commissioners, Montrose Board of County Commissioners, City of Montrose, Gunnison County, Grand Valley Water Users Association/Orchard Mesa Irrigation District/Ute Water Conservancy District, Associated Governments of Northwest Colorado, and Club 20 asserted that designating critical habitat in Colorado is not appropriate due to being on the fringe of the DPS' range. They stated that areas where western yellow-billed cuckoo are routinely detected are limited and most detections are sporadic, representing single or very small numbers of individuals with limited documentation of recent breeding in western Colorado; therefore, these units will not make a significant contribution towards conservation of the species.

Our Response:
Although limited breeding is known to occur in Colorado, western yellow-billed cuckoo consistently use the areas identified in Units 68 and 69 (CO-1 and CO-2). These areas fall into category 3 of our conservation strategy as they are large river systems outside of the Southwest that occur in different ecological settings that are consistently being used as breeding areas, thus contributing to the ecological representation and redundancy of the species. Maintaining breeding areas throughout the range of the species allows year-to-year movements to take advantage of any spatial and temporal changes in habitat resources and food abundance. These areas are occupied and contain the PBFs essential to the conservation of the species and which may require special management.

Comment 20:
The Colorado Department of Natural Resources, Mesa County Commissioners, Grand Valley Water Users Association/Orchard Mesa Irrigation District/Ute Water Conservancy District, and Club 20 strongly concur with the proposed exclusion of the Walter Walker State Wildlife Area (SWA), Colorado River Wildlife Management Area, and James M. Robb State Park from critical habitat. They additionally request exclusion of the Leatha Jean Stassen SWA (near the Walter Walker SWA) and Tilman Bishop SWA on eastern edge of Unit 68.

Our Response:
Based on our consideration of proposed exclusions and land management information received from Colorado Parks and Wildlife and Colorado Department of Natural Resources, we found that the James M. Robb Colorado River Sate Park (CRSP), and the Leatha Jean Stassen, Walter Walker, and Tilman Bishop SWAs are all managed in ways that promote cottonwood and willow growth while minimizing nonnative plants and noxious weeds, beneficial to western yellow-billed cuckoo. Additionally, the exclusion of these areas is likely to be beneficial in maintaining a working partnership with CPW. As a result of our exclusion/inclusion benefits analysis, the Secretary has determined it appropriate to exclude these areas from the designation. See Exclusions,
Private or Other Non-Federal Conservation Plans or Agreements and Partnerships, in General.

Comment 21:
Colorado Department of Natural Resources (along with other commenters) stated that rivers in Colorado and Utah are already managed to benefit western yellow-billed cuckoo due to the existing recovery program and designated critical habitat for listed fish (Colorado pikeminnow (
Ptychocheilus Lucius
), razorback sucker (
Xyrauchen texanus
), bonytail (
Gila elegans
), and humpback chub (
Gila cypha
)), such that critical habitat does not need to be designated. Several commenters stated that the Upper Colorado River Endangered Fish Recovery Program and San Juan River Basin Recovery Implementation Program were not cited in the proposed rule as providing protections for western yellow-billed cuckoo and that areas identified as critical habitat for the western yellow-billed cuckoo should be excluded based on implementation of the recovery program.

Our Response:
Areas along the San Juan River were not included in the 2020 revised proposed designation and are not included in this final designation. In identifying critical habitat for the western yellow-billed cuckoo, we identified those areas occupied by the species at the time of listing, identified the physical and biological features essential to conservation of the species, and then determined which of these features within identified areas may require special management considerations or protections. Although management actions for one listed species may overlap habitat or be mutually beneficial to multiple listed species, we identified the specific physical and biological features and geographic locations for yellow-billed cuckoo for this designation. The physical and biological features and occupied habitat for yellow-billed cuckoo differ from the physical and biological features identified for the four listed fish. We reviewed the habitat restoration efforts conducted by the Upper Colorado River Endangered Fish Recovery Program and found that the vast majority of habitat management actions were focused on instream water management and fish habitat and not western yellow-billed cuckoo habitat. As a result, excluding these areas based on management for listed fish species does not meet our criteria for exclusion.

Comment 22:
Colorado Department of Natural Resources requested further consideration of Colorado conservation efforts that focus on private lands, stating that critical habitat designation may reduce landowner's willingness to work voluntarily to benefit a species. The Department provided a list of conservation projects that have been implemented in partnership by numerous Federal and private entities that have helped to conserve western yellow-billed cuckoo and its habitat.

Our Response:
The list of wetland and riparian habitat projects from Partners for Fish and Wildlife, Natural Resources Conservation Service (NRCS) and other local environmental groups and private landowners shows eight projects since the listing of western yellow-billed cuckoo, two of which are in Mesa County, Colorado. Because the programs have been working in partnership and implementing and coordinating such conservation efforts that are partly coordinated by the Service and NRCS, we do not expect private landowner participation in future conservation efforts will be curtailed as a result of designating critical habitat. As shown by the implementation of the various projects, the program has been successful in getting private and non-Federal partners to conserve sensitive species and their habitat.

Comment 23:
The Colorado Department of Natural Resources and Club 20 recommend exclusions of critical habitat Unit 37 (NM-6B) because the area has already been analyzed for effects to yellow-billed cuckoo in a 2016 biological opinion for Reclamation operations at Elephant Butte Reservoir, New Mexico. Additionally, an existing management plan (2012) is working effectively. These commenters also recommended exclusion of critical habitat Unit 39 (NM-8A and NM-8B) and that Reclamation extends their 2012 management plan to cover this area.

Our Response:
The proposed critical habitat within Unit 37, NM-6B (Elephant Butte Reservoir) will be excluded from critical habitat due to Reclamation's management plan to benefit western yellow-billed cuckoo. Tribal lands within Unit 37 (NM-6A) will also be excluded due to Tribal management for western yellow-billed cuckoo and existing partnerships with the Service. We are also excluding Unit 39 from critical habitat due to existing management. See Exclusions (
Federal Lands
and
Tribal lands
).

Comment 24:
The State of Idaho's Office of Species Conservation (OSC) (and other private water users) commented in 2014 and again in 2020. The commenters provided modifications and corrections to the acreages identified in the proposed rule. They stated that protections afforded the western yellow-billed cuckoo as a threatened species and other current on-the-ground measures render the critical habitat designation unnecessary; areas in Idaho are not essential to the conservation of the species; the Service's current information on the status and occupancy of western yellow-billed cuckoo in Idaho is severely lacking; and a recovery plan should be developed before critical habitat is determined. They further stated that they have concerns that the designation would change water management, agricultural, and irrigation activities along the Snake River or its tributaries and that the American Falls Dam and Reservoir's operations and associated transmission lines, humanmade structures and rights-of-way would be affected by the designation. The commenters stated that special management is not necessary as measures are already in place and that it is essential to preserve the 2004 Snake River Agreement.

The OSC stated that the Service should leverage existing collaborative efforts and implement landscape-scale partnerships and incentivize ecologically-based cooperative water management practices to conserve riparian and western yellow-billed cuckoo habitats while providing

balanced management of agricultural irrigation, managed aquifer recharge, municipal uses, and flood control. The OSC commented that if areas are designated, the Service should expand the boundaries of the critical habitat to correspond to Federal lands and only include non-Federal lands with landowner discretion.

Our Response:
We have revised the final rule to reflect information provided by the OSC regarding acreages and land ownership. We do not agree with the commenters' assessment that areas in Idaho are not essential to the conservation of the species and should not be designated as critical habitat. We developed a conservation strategy to assist in determining areas essential to the conservation of the species and determined that the areas in Idaho are occupied, contain the PBFs essential to the conservation of the species, meet the goals of the conservation strategy, and follow our criteria for designation. These areas in Idaho fall into category 3 of our conservation strategy as they are large river systems outside of the Southwest that occur in different ecological settings that are consistently being used as breeding areas, thus contributing to the ecological representation and redundancy of the species. Maintaining breeding areas throughout the range of the species allows year-to-year movements to take advantage of any spatial and temporal changes in habitat resources and food abundance. We based our occupancy and use of the areas in Idaho on State natural heritage data and published articles and survey reports including Reynolds and Hinckley (2005, entire) and Idaho Department of Fish and Game (2013-2014, entire), as the best available data that have documented consistent use of the areas designated as critical habitat in Idaho. In the proposed and this final rule we have defined our position and consideration of occupancy (see
Selection Criteria and Methodology Used to Determine Critical Habitat
).

The designation of critical habitat requires Federal agencies to consult with the Service on activities they conduct, permit, or fund. Because the areas being designated are occupied, the Federal agencies managing water storage and delivery infrastructures already must ensure that their operations do not jeopardize western yellow-billed cuckoo due to the threatened status of the species. Our economic analysis did not identify significant additional costs associated with the designation of critical habitat as the measures that may be required would likely be the same as those necessary under the jeopardy analysis other than administrative analysis of any adverse modification review for the agencies' actions.

Collaborative multi-stakeholder cooperative partnerships can be important to long-term conservation of sensitive species and their habitats while still allowing for the interests of stakeholders and needs of the public to continue. However, we are required to designate critical habitat for threatened and endangered species where we find the designation to be both prudent and determinable as is the case with the western yellow-billed cuckoo. In our development of critical habitat, we consider designating those areas with the PBFs essential to the conservation of the species and not based on land ownership, unless limiting the designation to just Federal lands provides for the conservation of the species. In our proposed rule, we solicited the public for information regarding potential exclusion of areas based on management plans or other conservation efforts including partnerships and we engaged with our partners regarding excluding private lands within the units identified in Idaho. We received a request to only include private lands with landowner consent from OSC; however, we received no information from private landowners to exclude their specific lands in Idaho.

We do not agree that specific areas and essential features within critical habitat do not require special management considerations or protection because adequate protections are already in place. In
Center for Biological Diversity
v.
Norton,
240 F. Supp. 2d 1090 (D. Ariz. 2003), the court held that the Act does not direct us to designate critical habitat only in those areas where “additional” special management considerations or protection is needed. If any area provides the physical or biological features essential to the conservation of the species, even if that area is already well managed or protected, that area still qualifies as critical habitat under the statutory definition if special management is needed. The final rule explicitly states that manmade features such as irrigation structures and facilities are excluded from the designated critical habitat. However, rights-of-way are agreements that impose a status on the use of lands rather than describing the condition of the land as human-made structures. As such, rights-of-way are not excluded from designated critical habitat.

Comment 25:
The New Mexico Department of Agriculture, Middle Rio Grande Conservancy District, New Mexico Interstate Steam Commission, and the Rio Grande Compact Commission had comments on the revised proposed Unit 37 (NM-6A and NM-6B). They stated that in many cases the designation would not produce any additional benefits for the western yellow-billed cuckoo than already resulting from issuance and implementation of the Service's 2016 biological opinion (Service 2016a, entire) for water operations and river maintenance issued to Reclamation. These entities have also been pursuing other conservation actions in the proposed area through the Middle Rio Grande Endangered Species Collaborative Program. They would like the Service to consider the exclusion of the Elephant Butte Reservoir operating pool from designation as critical habitat. The commenters also requested that the draft NEPA and draft economic analysis developed for the revised proposed designation be made available for review.

Our Response:
Partly as a result of the 2014 comments, we revised the previously identified Unit 52 (NM-8) (2014) (Unit 37 (2020)) to remove a segment of the river near Albuquerque, NM, as not constituting critical habitat where there is a significant break in the habitat for the western yellow-billed cuckoo. Though this area has had incidental detections of western yellow-billed cuckoos, breeding activity has not been confirmed by formal surveys since the species was listed. This area was removed from proposed critical habitat, which resulted in splitting the critical habitat into two units (NM-6A and NM-6B). We conducted an exclusion weighing analysis and found that the benefits of exclusion outweigh the benefits of inclusion and excluded the majority of Elephant Butte Reservoir as well as areas within Tribal lands from this final designation (see
Comment 8
and Exclusions,
Tribal Lands
and
Federal Lands
). The draft economic analysis (IEc 2019 and IEc 2020 entire) and draft NEPA analysis (Service 2019d) were posted online at
http://www.regulations.gov
at Docket No. FWS-R8-ES-2013-0011 under supporting documents or on the Sacramento Fish and Wildlife Office's website at
http://www.fws.gov/sacramento.

Comment 26:
In 2014, the New Mexico Interstate Stream Commission and New Mexico Department of Game and Fish (NMDGF) questioned the source of western yellow-billed cuckoo occupancy data for the Gila, San Francisco, Mimbres and San Juan Units. The New Mexico Interstate Stream Commission also requested additional

information as to how State estimates for western New Mexico were established. On the Rio Grande, the Commission also noted discrepancies in 1986 study results by Howe (1986), when compared to the limited survey effort completed by Reclamation from 2006-2010, and stated that the western yellow-billed cuckoo population is larger than estimated. The NMDGF also recommended removing the areas along the San Juan River (2014 Unit 46, NM-1) and Mimbres River (2014 Unit 49, NM-6) (now identified as Unit 34, NM-3A) from the designation due to low frequency of western yellow-billed cuckoo detections.

Our Response:
Occupancy data for New Mexico was based on a variety of sources. These include formal surveys conducted by permitted biologists, incidental detection data collected and verified by online data from the Cornell Lab of Ornithology (2020), and information submitted to the Service from the State Heritage Program. State estimates for western New Mexico are based on the observations from the sources above. In this final critical habitat designation, we have updated our estimated numbers for the State, which is a larger population than originally estimated in 2014, after several years of increased survey effort. After reevaluation and prioritizing units of greatest conservation value, we agree that the low frequency of western yellow-billed cuckoo observations on the San Juan River lead us not to consider the area as critical habitat due to our conservation strategy and criteria for determining areas essential to the conservation of the species. The Mimbres River area was also reevaluated and had recent formal or incidental observations of western yellow-billed cuckoos within the area identified in 2014 as well as additional locations outside the unit. As a result, the areas we are designating along the Mimbres River now include the two areas identified in the revised proposed rule (Unit 34, NM-3A and NM-3B).

Comment 27:
The New Mexico Department of Agriculture (NMDA) requested that the Service clearly define what criteria it uses to differentiate between “grazing” and “overgrazing.” NMDA also requests the scientific and peer-reviewed sources of data that has led the Service to conclude that “overgrazing” may be a threat to potential critical habitat.

Our Response:
As stated in the 2014 final listing rule determining threatened status for the western yellow-billed cuckoo (79 FR 59992, October 3, 2014), well-controlled grazing activity can be compatible within riparian zones and in western yellow-billed cuckoo habitat depending on the measures implemented for the grazing activity. The amount of management depends on the sensitivity of the habitat at any given location and would most likely need to be managed on a site-by-site basis. For example, a grazing regime used on Audubon California's Kern River Preserve in the South Fork Kern River Valley limits grazing to outside the growing season (October to March). This time restriction allows for regeneration of willows and cottonwoods and precludes the tree browsing and high-lining that often accompanies heavy summer (growing season) grazing. Given that “grazing” versus “overgrazing” may vary on a site-by-site basis, there is no clear definition, but generally, if an area with grazing activity degrades riparian habitat attributes and prevents long-term health and persistence of these systems, it is considered overgrazing.

Comment 28:
In 2014, the NMDGF stated that the Service should further describe vague habitat descriptions in the Physical and Biological Features section and within the unit descriptions themselves.

Our Response:
In our 2020 revised proposed rule (85 FR 11458, February 27, 2020) and this final rule, we further refined the PBFs for western yellow-billed cuckoo and information regarding habitat within the unit descriptions.

Comment 29:
The NMDGF requested that all State lands be excluded based on their State Wildlife Action Plan (Action Plan or SWAP) and the NMDA supports the exclusion of all lands in New Mexico from the final critical habitat designation. The NMDGF identified areas within the Bernardo WMA that do not have the PBFs and should not be considered as critical habitat. The NMDA stated that State lands are often involved in collaborative restoration projects involving funding from Federal agencies. Designating State lands as critical habitat could complicate interagency cooperation and hinder the implementation of restoration projects that would benefit the western yellow-billed cuckoo.

Our Response:
We re-evaluated the critical habitat boundary in the Bernardo WMA within Unit 37 (NM-6B) and agree with the State's assessment that a portion of the unit at the southernmost extent of Bernardo WMA does not contain the PBFs for the western yellow-billed cuckoo; therefore, some areas within Bernardo WMA were removed from the designation.

In this final rule, we excluded State lands that have management measures in place to protect habitat for the western yellow-billed cuckoo (see Exclusions, Private or Other Non-Federal Conservation Plans or Agreements and Partnerships, in General). We value our partnership with New Mexico State agencies and appreciate the conservation efforts associated with the NMDGF State Wildlife Action Plan and coordination with the Service on endangered and threatened wildlife conservation measures and commitments through the consultation process. State Wildlife Action Plans, including the NMDGF State Wildlife Action Plan (NMDGF SWAP 2016, entire), are planning documents that provide a high level overview of the status of species and habitats within each State and are not a plan which specifically implements conservation measures, provides management direction, or ensures specific project or species funding. In some cases, these conservation efforts identified in State Wildlife Action Plans may aid in general riparian health, which in some cases, indirectly benefit western yellow-billed cuckoos. However, the NMDGF and the NMDA did not provide a reasoned explanation that the benefits of exclusion outweigh the benefits of inclusion in support of a request for exclusion. As a result, we did not conduct an exclusion analysis specific to New Mexico State lands. In addition, State agencies receiving Federal funds to conduct projects would be considered third parties in consultation and thus are represented in the cost estimates produced by the economic analysis. The economic analysis found that the incremental economic costs associated with critical habitat to third parties such as States would be minimal.

Tribal Comments

In accordance with our requirements to coordinate with Tribes on a government-to-government basis, we solicited information from and met with members of the Fort Mojave Indian Tribe; Colorado River Indian Reservation; Fort Yuma Indian Reservation; Cocopah Tribe; Yavapai-Apache Nation; Hualapai Indian Tribe; San Carlos Reservation; Navajo Nation; Santa Clara, Ohkay Owingeh and San Ildefonso Pueblos; Cochiti, Santo Domingo, San Felipe, Sandia, Santa Ana and Isleta Pueblos; Shoshone-Bannock, Fort Hall Reservation; the Cachil DeHe Band of Wintun Indians; and the Ute Tribe of the Uinta and Ouray Reservations regarding the designation of critical habitat for the western yellow-billed cuckoo. The comments we received from the Tribes included revisions to Tribal ownership and requests to be excluded from the

designation based on their management and conservation of western yellow-billed cuckoo habitat, that the designation would infringe on Tribal sovereignty and directly interfere with Tribal self-government, and that it would have a disproportionate economic impact on Tribes.

We have reviewed their requests and excluded all the Tribal lands from the final designation under section 4(b)(2) of the Act. See Exclusions (
Tribal Lands
) for those areas we excluded under section 4(b)(2) of the Act from the final designation. Individual Tribal comments requesting exclusion from the final designation under Section 4(b)(2) of the Act are addressed below in the Exclusions (Tribal Lands) section and are not addressed further here.

Comment 30:
The Gila River Indian Community (GRIC) and others expressed concern about whether critical habitat would impact water availability and management or prevent future water exchanges for Tribal communities. The GRIC was specifically concerned with the Salt River Reservoir systems identified in the Salt River Project (SRP) and if existing agreements allow for “storage credits” to be managed according to water delivery needs and existing water operations. The GRIC also provided comments regarding the economic impact of potential curtailment of water delivery should critical habitat be designated outside Tribal lands.

Our Response:
Because all Tribal lands have been excluded from the final critical habitat designation, any conservation activities on Tribal Lands that would be required are based on the listing of the western yellow-billed cuckoo. For critical habitat off Tribal lands, we do not anticipate water operations or water delivery to Tribes to be significantly impacted by the designation of critical habitat. Section 3 of the economic analysis outlines the substantial baseline protections currently afforded the western yellow-billed cuckoo throughout the proposed designation and has determined that the impacts of critical habitat would be minimal. In addition, of the reservoirs within the SRP, we are excluding the areas identified near Roosevelt Lake through SRP's Roosevelt Lake HCP (2002) and areas around and downstream of Horseshoe Reservoir through SRP's Horseshoe and Bartlett Reservoirs HCP (SRP 2008, entire). Horse Mesa Dam, Mormon Flat Dam, and Stewart Mountain Dam are not within cuckoo critical habitat on the Salt River. Other areas within the SRP were not identified as critical habitat. Because the areas identified within the SRP area are no longer critical habitat, we would not expect future water delivery or exchanges to be impacted by the designation. See Exclusions,
Private or Other Non-Federal Conservation Plans Related to Permits Under Section 10 of the Act
and Exclusions (
Tribal Lands
).

Comment 31:
In 2014, the Sandia Pueblo requested the exclusion of critical habitat within their lands based on the mandate established in Secretarial Order 3206, their history of restoration efforts, the Pueblo of Sandia's Bosque Management Plan, and section 4(b)(2) of the Act.

Our
Response:
In 2020, we revised the critical habitat boundary of Unit 37 (NM-6B) near Albuquerque, New Mexico, which included the Sandia Pueblo. Because the area contained a significant break in the type of occupied habitat due to the area being near development and not meeting our criteria for designation, the area that contained Sandia Pueblo lands was not included in the 2020 revised proposed designation. Although this area has had a limited number of detections of western yellow-billed cuckoos, breeding activity has not been confirmed by formal surveys since the species has been listed. This assessment has been further supported by the Sandia Pueblo's historical and multi-year survey effort.

Comment 32:
One commenter noted that the Ute Indian Tribe relies on revenues from oil and gas development as the primary source of funding for its governmental services. This commenter stated that, if the listing and critical habitat designation prevent the Tribe from developing its oil and gas resources, the Tribe could lose $2.3 million per well annually.

Our Response:
All Ute Indian Tribe lands were excluded from the final designation. The commenter also refers to costs of listing for the yellow-billed cuckoo. Section 4 of the Act prohibits the consideration of economic impacts in decisions about whether to list a species as endangered or threatened. The listing decision made in 2014, was based solely on best scientific and commercial data available on the status of the species, after taking into account efforts by States or foreign nations to protect the species (section 4(b)(1) of the Act). Thus, the economic analysis does not quantify the likely economic effects of our previous decision to list the western yellow-billed cuckoo as a threatened species.

For activities that have a Federal nexus on the Ute Reservation, the consultation history for impacts to the species has been minimal. The economic analysis estimated that the annual rate of expected consultations for the entire Unit 70 would be less than one per year (0.8) (IEc 2020, Exhibit A-2). As result of excluding the Tribal lands, we would expect even fewer consultations for the area.

Public Comments

Comment 33:
Several commenters stated the Service should not rely on the PBF of having an adequate prey base to designate critical habitat because the Service does not adequately address how management practices might affect the prey base.

Our Response:
In determining critical habitat, we are required to identify the physical or biological features essential to conservation of the species. Prey availability is an important component western yellow-billed cuckoos use to select areas for breeding. However, we did not identify and select areas as critical habitat based on this feature alone; in selecting areas as critical habitat we relied on our conservation strategy which focused on breeding areas with appropriate habitat structure. This PBF is designed to ensure that project proponents consider effects to the prey base in any considerations of how their actions might affect the function of the critical habitat in supporting western yellow-billed cuckoos. As such, we conclude that it is informative and appropriate to include as a PBF in the final designation.

Comment 34:
Multiple commenters expressed concern for designating critical habitat in areas where the species has not been recently documented and which we could not be certain were occupied.

Our Response:
We based our designation on the best scientific and commercial information available using specific criteria for determining areas to designate as critical habitat. We have determined that all units being designated are occupied by the western yellow-billed cuckoo. In determining occupancy of breeding areas and critical habitat for the western yellow-billed cuckoo, we obtained occurrence information from surveys, reports, State Heritage data, published literature and online information (Cornell Lab of Ornithology). For the 2014 proposed rule, we reviewed information between 1998 and 2014 to determine whether the area was occupied at the time of listing. For the 2020 revised proposed rule, based on new data we received through 2017, we proposed additional units we consider to have been occupied at the time of listing using new data received through the 2017 breeding season. To further support designation of these

units, we used additional occupancy or breeding data up until the 2020 breeding season. See Criteria Used To Identify Critical Habitat for a discussion of the information and criteria we used on determining occupancy.

Comment 35:
Multiple commenters requested exclusions for various publicly managed lands. One of these requests was to exclude Black Draw, part of San Bernardino National Wildlife Refuge in Arizona. Private landowners also requested exclusion for their own lands, claiming that they are already managing lands that maintain the species' habitat but did not provide information regarding their management or specific land ownership information.

Our Response:
For exclusion of an area from critical habitat designation based on management, we look to our Policy on Exclusions that outlines measures we consider when excluding and areas from critical habitat (81 FR 7226). Black Draw, a part of the San Bernardino National Wildlife Refuge, provides important habitat for the western yellow-billed cuckoo. In order for us to consider and conduct an exclusion analysis, stakeholders should provide information or a reasoned rationale to support their request. Without this information, we did not conduct a weighing analysis to determine whether the benefits of exclusion outweigh the benefits of inclusion. For those Federal, State, Tribal and public lands where we had such information, we conducted an exclusion analysis Please see the Exclusions section for areas we are excluding from the final designation.

Comment 36:
Some commenters stated that areas identified as critical habitat did not contain the physical or biological features (PBFs) and therefore are not essential and should not be part of the final designation.

Our Response:
In our revised proposed rule, we reevaluated the areas proposed as critical habitat to focus on areas that contain the PBFs and are consistently occupied during the breeding season. We used the best scientific or commercial information available to determine habitat for and use by the western yellow-billed cuckoo. During our process of analyzing the PBFs, care was taken to consider the areas chosen using as consistent an approach as possible, despite the differences in habitat and the timing of when areas are used by the species. In some instances, several areas of habitat if in near proximity to each other were grouped together as a single area. Within the boundaries of critical habitat, areas that do not contain the PBFs are not considered critical habitat, even if they are within the boundary.

Comment 37:
One commenter stated that the LCR MSCP maps in the revised proposed rule do not include some important revegetation sites occupied by western yellow-billed cuckoos. The commenter provided the total additional area of the revegetation sites within the LCR MSCP planning area.

Our Response:
The proposed rule and revised proposed rule were based on the most current information we had on boundaries of areas for the LCR MSCP and may not have included more recent revegetation sites. As a result of reviewing whether we should exclude the areas being managed under the LCR MSCP, we took into consideration the additional restored sites as part of our benefits of exclusion analysis. We have determined to exclude the entire area being managed under the LCR MSCP. See Exclusions,
Private or Other Non-Federal Conservation Plans Related to Permits Under Section 10 of the Act.

Comment 38:
One commenter claims the inclusion of critical habitat for the western yellow-billed cuckoo in Unit 19 (AZ-17, Upper Cienega Creek), Unit 24 (AZ-22, Lower Cienega Creek), or Unit 58 (AZ-46, Gardner Canyon) will result in an economic burden for their activities. They also reasons the Service has already analyzed the effects of the Rosemont Project on the western yellow-billed cuckoo habitat in the project area during a section 7 consultation completed in 2016, and that because the habitat is already protected under the jeopardy standard, the area should not be included. The commenter also stated that the critical habitat within and in the vicinity of the Rosemont Project cannot be essential to the conservation of the species. Other commenters expressed concern about the development of Rosemont Copper Mine and that the critical habitat in the area is important for western yellow-billed cuckoos and other species.

Our Response:
As we discussed in our draft economic information in our revised proposed rule (IEc 2019, entire; IEc 2020, entire) and our Incremental Effects Memo (Service 2019c, entire), we do not expect significant economic impacts associated with the designation of critical habitat above those associated with listing of the species as threatened, due to the areas being occupied by the species. Our review of the comments and claims raised do not change our position that the incremental economic impacts associated with critical habitat would be limited to administrative costs associated with completing adverse modification analyses for Federal actions (activities, permitting, funding) occurring in critical habitat. In general, conservation measures resulting from the species' listing status under the Act are expected to sufficiently avoid potential destruction or adverse modification of critical habitat.

In 2016, we issued a biological opinion to the USFS for Rosemont Copper's proposed activities (Service 2016b, entire). We subsequently received notification from the USFS that they had suspended all activities under the Rosemont Project Mine Plan of Operations due to litigation and court ruling to halt the project (Dewberry 2019, entire; Helminger 2019). In 2019, we suspended our 2016 biological opinion and its accompanying incidental take statement (Service 2019b, entire). On February 10, 2020, we received an adverse ruling on our biological opinion (Case 4:17-cv-00475-JAS Document 291). The USFS and Corps did not request an appeal of this decision. As a result of these court rulings, Rosemont's claim (James 2020, entire) that impacts to critical habitat have already been analyzed under the jeopardy standard is not correct. In addition, review of critical habitat is not reviewed under the jeopardy standard but rather under the different adverse modification standard. Should Rosemont Copper wish to resume seeking Federal permits for their activities, the Federal agencies would need to consult with the Service and obtain a new biological opinion for incidental take and adverse modification review.

In reviewing areas to designate critical habitat, we used the best scientific and commercial information available to determine those areas that are occupied and contain the physical or biological features essential to the conservation of the species. Western yellow-billed cuckoo use of the area during the breeding season is well documented and the area meets our criteria and conservation strategy for designation.

Comment 39:
Permittees and others associated with the Service-approved section 10 Pima County Multi-Species Conservation Plan (MSCP), requested that the critical habitat within the HCPs planning area be designated as critical habitat.

The commenters expressed their confidence in the ability to deliver conservation benefit to the western yellow-billed cuckoo by way of the mitigation, management, and monitoring strategies in the MSCP. However, the commenters did state that large-scale Federal actions outside of Pima County's control could have significant negative impacts on species and lands under their management. The

commenters continued, stating that the designation of critical habitat would require Federal agencies to use an additional standard of review when conducting section 7 consultations with the Service for federally permitted activities (such as mines and transmission lines) not controlled by Pima County. The commenters stated that keeping the area as critical habitat would further serve to benefit the conservation of species and its habitat (Huckelberry 2014, entire). The commenters opined that maintaining the western yellow-billed cuckoo critical habitat on Pima County or Pima County Regional Flood Control District managed lands would not impact their section 10(a)(1)(B) permit or their partners. The commenters therefore requested that critical habitat for the western yellow-billed cuckoo be maintained on County- and District-owned and leased properties and on the Federal lands within Las Cienegas National Conservation Area.

Our Response:
In proposing revised critical habitat in 2020 for the western yellow-billed cuckoo, we identified approximately 9,191 ac (3,719 ha) of land within the Pima County MSCP that occurred in numerous proposed units. We are honoring the commenters' requests not to exclude these areas from the final designation.

Comment 40:
We received many comments on Unit 16 (AZ-14, Upper San Pedro River), which includes a portion of the San Pedro Riparian National Conservation Area (SPRNCA) managed by the Bureau of Land Management (BLM), ranging from support for inclusion, exclusion, exemption, or removal. One commenter provided support of inclusion in part because it has western yellow-billed cuckoo conservation goals within this unit as part of its Sonoran Desert Multi-species Conservation Plan (Huckelberry 2014, entire). Private individuals and environmental organizations also supported inclusion. Multiple commenters requested exclusion or removal of part or all of this Unit for various reasons, such as the area already having Federal protection, that it was not essential, and not wanting critical habitat on or near their private lands.

Our Response:
As noted above, consideration of possible exclusions from critical habitat are in the Service's discretion and generally follow our Policy on Exclusions (81 FR 7226). With respect to Unit 16, we determine that the requesters have not presented information or reasoned rationale that supports a conclusion that the benefits of exclusion outweigh the benefits of inclusion. Breeding western yellow-billed cuckoos have long occupied the area within Unit 16. This area supports the largest population of breeding western yellow-billed cuckoos along and adjacent to a free-flowing river in Arizona and has a high conservation value. Areas such as this were specifically identified as part of our conservation strategy for designating critical habitat. Western yellow-billed cuckoos have been documented as breeding along the cottonwood-willow riparian woodland corridor and in the adjacent mesquite and desert scrub woodland that expands laterally into the broad floodplain. Threats to the physical or biological features in this Unit are ongoing and require constant management to protect from actions that affect the species and its habitat. The Service has engaged in many consultations for proposed actions within and outside of San Pedro Riparian National Conservation Area (SPRNCA) in the San Pedro River Basin that affect cuckoos and habitat within SPRNCA. Designation of critical habitat in this Unit ensures that effects of proposed Federal actions to western yellow-billed cuckoo habitat are considered and fully evaluated for potential impacts. The designation of critical habitat may also help increase agency and private land stewardship through partnerships and curtail unauthorized activities that degrade habitat such as trespass grazing and off-highway vehicle incursions. See
Exclusions Based on Impacts on National Security and Homeland Security
for discussion of Fort Huachuca.

Comment 41:
Multiple commenters stated that the geography of the species does not warrant labeling the western yellow-billed cuckoo as a distinct population segment, therefore delisting is warranted, and it is not necessary to designate critical habitat.

Our Response:
On September 16, 2020, we published in the
Federal Register
a not warranted 12-month finding on the petition to delist the western yellow-billed cuckoo (85 FR 57816). In that finding, we reaffirmed our previous determination that the western yellow-billed cuckoo constitutes a valid distinct population segment. Thus, we are required to designate critical habitat for all threatened or endangered species as long as we find the designation to be prudent and determinable, as is the case for the western yellow-billed cuckoo. We further note that we are under court order to finalize critical habitat for the western yellow-billed cuckoo critical habitat and do not have the discretion not to do so.

Comment 42:
Several commenters stated that the western yellow-billed cuckoo is a habitat generalist or the designation of desert scrub, grasslands, mesquite, mesquite bosques, and cottonwood galleries as “critical” is wrong.

Our Response:
The western yellow-billed cuckoo uses a variety of riparian and xeroriparian habitat within its range, but they are not habitat generalists. All the vegetation types are habitats with an overstory and understory component that occur in drainages. Based on comments regarding the PBFs in the 2014 proposed rule, we sought to better define the habitat used by the species. Western yellow-billed cuckoo breeding habitat is restricted to riparian woodlands along riparian drainages rangewide and, in the southwestern United States and northwestern Mexico, they also breed in more arid and sometimes narrower or patchier tree-lined drainages. In southeastern Arizona, they breed in tree-lined habitat in ephemeral drainages where humidity is higher than in other parts of the Southwest.

Comment 43:
A few commenters stated that the proposed rule does not provide a solid justification for why areas proposed for critical habitat are essential. One commenter also stated there was insufficient justification for why areas were removed from the 2014 proposed critical habitat and why areas previously considered essential were eliminated.

Our Response:
Revisions from the 2014 proposal are in part based on comments received and development of our conservation strategy for determining critical habitat. In our revised proposed and this final rule, we describe our rationale on why we consider the areas identified as essential to the conservation of the species. The conservation strategy takes into consideration numerous conservation biology practices and approaches for conserving sensitive species and their habitat. The areas identified contain the PBFs we considered essential to the conservation of the species under section 3(5)(A)(i) of the Act. In the strategy, we focused our designation on breeding areas that showed consistent occupancy and have records of numerous breeding pairs over time. Areas with limited, low, and inconsistent breeding information or degraded habitat were removed as not meeting the definition of critical habitat. For example, some areas on the Verde, Salt, and Gila Rivers that are no longer considered as critical habitat contained some or all of the PBFs, but the habitat is degraded, declining, and disjunct.

There were also no recent records (within the last 5 years) that confirm occupancy throughout the breeding season, although yellow-billed cuckoos migrate through these areas. Some other drainages in Arizona and throughout the range were removed either because: (1) The PBFs no longer occur, (2) our information regarding PBFs was in error, (3) surveys conducted since 2014 have not confirmed occupancy during the breeding season, (4) surveys have not been conducted, or (5) the area had detections but occupancy was otherwise uncertain; these areas were removed from the designation as not meeting the definition of critical habitat.

Comment 44:
One commenter stated that the Service failed to inform private landowners that their property is proposed for designation.

Our Response:
We made every effort to provide the public notification of our proposed and revised proposed critical habitat, including through direct notification, publications in newspapers, and social media outlets. Due to the large scope of the proposed designation, it was not possible to individually contact each individual landowner within the proposed designation.

Comment 45:
Several commenters stated that there is no evidence that critical habitat units were occupied at the time of listing. Commenters disagreed that using data collected over a 20-year span is proof that the area is occupied habitat at the time of listing in 2014. Commenters also disputed that documentation of a few individuals is proof that the species is breeding or that the habitat they occupy is essential. Other commenters held the opposite point of view and found our parameters for occupancy to be too narrow, and recommended that the consideration of occupancy should be expanded temporally and spatially.

Our Response:
In development of the proposed rules and this final rule designating critical habitat, we used the best scientific and commercial information available. We have determined based on our analysis of the information available that western yellow-billed cuckoo surveys and occupancy reports conducted in many sites over multiple years indicate continued use. Therefore, it is reasonable to conclude that data collected from 1998 to the present can be used to determine occupancy. We acknowledge the difficulty in identifying every individual occupying or breeding occurrence for an area because of the remote nature of the sites, reclusive nature of the species, the variable nature of resource availability, the extent of the species range, and limited personnel and funding to conduct rangewide protocol surveys. In certain instances we used the best scientific and commercial information to inform our decisions and professional judgment on determining occupancy for an area or including or not including it as critical habitat. In our proposed rule and this final rule, we outline our rationale for determining occupancy and identifying areas as critical habitat. See
Selection Criteria and Methodology Used to Determine Critical Habitat.

Comment 46:
Several commenters were concerned about water depletion (both surface water and groundwater) and its continued threat to western yellow-billed cuckoos into the future. Some were interested in creating more water availability and flow through a balanced approach to water use interests (including municipal, agricultural, recreational, and environmental interests) and implementing more habitat restoration in areas proposed for critical habitat.

Our Response:
Water availability and depletion can have a significant impact to western yellow-billed cuckoo and its habitat and were part of our reasoning for listing the DPS as threatened. We expect water depletion to continue due to a variety of causes including actions such as climate change, drought, mining effects, groundwater pumping, and water diversion. We will continue to consult on this issue as it arises as well as work with Federal, State, Tribal, and private landowners on species recovery actions.

Comment 47:
Several commenters pointed out potential inconsistencies in application of criteria for designation, in particular where large habitat blocks are absent or where there are gaps greater than 0.25 mi (0.40 km). One commenter is concerned about the gaps in suitable habitat and inclusion of small patches along the Big Sandy River. Another commenter stated that there is no evidence that Pinto Creek contains substantial blocks of riparian habitat.

Our Response:
Because of the dynamic aspects of western yellow-billed cuckoo habitat as a result of potential flooding, changing river locations, and land uses, we used the active floodplain to identify where riparian habitat occurs and immediately adjacent suitable woodland habitat to determine the critical habitat boundaries. Blocks of habitat often contain openings that change over time in dynamic riverine systems. Suitable habitat in perennial and intermittent riparian systems consists of a variety of configurations that include small patches of woodland interspersed with openings, large expanses of woodland, narrow woodland, or a combination of different configurations within the same drainage at any given time. Riparian corridors in drainages, especially in the Southwest, can be very narrow or a patchwork of vegetated and nonvegetated areas. Naturally occurring gaps in habitat following flooding and scouring are part of succession in riparian systems. In time, trees will regenerate and fill these openings. Western yellow-billed cuckoos often nest and forage near the edges and openings that are part of the matrix of suitable habitat. We included breaks in habitat to combine one or more areas if we determined that: (1) The gap in vegetation was within minor variances of the 0.25-mi (0.40-km) distance; (2) the habitat on the other side of the gap was a continuation of similar or better suitable habitat and included breeding occupancy as identified above; or (3) the gap in vegetation was determined to be a consequence of natural stream dynamics essential to the continuing function of the hydrologic processes of the occupied areas. By providing breaks in habitat and combining areas, we allow for regeneration of vegetation in these areas, which is often more productive and provides additional food resources for the species and allows for appropriate habitat conditions for use when dispersing to other breeding locations.

Comment 48:
Several commenters claimed a need for western yellow-billed cuckoo critical habitat to be protected from livestock grazing.

Our Response:
We consider livestock grazing, if conducted and managed appropriately, to be a management tool compatible with western yellow-billed cuckoo and its habitat depending on the location and intensity of the grazing operation. We evaluate effects of grazing on western yellow-billed cuckoos and habitat through section 7 consultation for any proposed project with a Federal nexus. Livestock grazing in riparian areas can be a concern, and the Southwestern Willow Flycatcher Recovery Plan (Service 2002, entire) provides grazing guidance that is also relevant for western yellow-billed cuckoos. We identified overgrazing in riparian (including xeroriparian) habitat as an ongoing threat to western yellow-billed cuckoo habitat that may require special management. Well-managed, low-intensity, appropriately timed grazing in areas with multiple options for water access to livestock can be compatible with western yellow-billed cuckoos in some parts of the range. However, where water is limited and recruitment events are infrequent,

grazing at any level can impact riparian habitat.

Comment 49:
Several commenters indicated that the 2020 revised proposed critical habitat rule conflicts with the description of western yellow-billed cuckoo habitat in the 2014 listing rule and 2014 proposed critical habitat rule.

Our Response:
Since the publication of the 2014 proposed critical habitat rule, we have learned more about western yellow-billed cuckoos and their habitat use through information identified in published research, survey efforts, and field studies. This new understanding is included as the best available science at the time of publishing the 2020 revised proposed rule. New information includes the species' use of ephemeral drainages with relatively high humidity for breeding, in addition to the known use of riparian woodlands.

Comment 50:
Several commenters are concerned about the expansion of identified critical habitat in certain areas of Arizona, such as in the upper reaches of the Big Sandy River and that the additional areas (used as stop-over, dispersal, or breeding habitat) are not needed for critical habitat. They also state that the rule fails to show how many of these areas will require special management. Other commenters expressed concerns that the apparent expansion in Arizona is only due to increased survey effort and that Arizona is disproportionately represented in the 2020 revised proposed critical habitat.

Our Response:
The reduction in riparian habitat (including mesquite bosques) in Arizona has been well documented and western yellow-billed cuckoos are no longer found in areas where riparian habitat no longer exists. Yet, remaining habitat within Arizona remains an important stronghold for breeding western yellow-billed cuckoos. As part of the core of the DPS, habitat in Arizona needs to be conserved to enable western yellow-billed cuckoos to produce young that may eventually disperse to other parts of the DPS's range. The Big Sandy River was included because it contains breeding habitat as outlined in our conservation strategy. Although critical habitat areas may be used as migration corridors, dispersal habitat and stop-over sites, that is not why these areas were designated. These areas were identified as critical habitat as they are breeding areas that are used consistently by the western yellow-billed cuckoo and provide for population maintenance and growth as outlined in our conservation strategy. As mentioned in the rule, riparian habitat (including xeroriparian) is used by the western yellow-billed cuckoo; however, not all riparian habitat has been designated. An increase in a species' detection information often occurs as a result of a species being listed as a threatened or endangered species, due to consultation requirements under section 7 as well as recovery actions or State coordination efforts under section 6 of the Act. Additional occupancy information is also sometimes obtained as a result of academic research on a species. Since 2014, we estimate that the number of detections has not increased significantly and this information has not lead to widespread areas being found to be occupied outside those areas known since before listing, which identified the majority of occupancy and population numbers occurring in Arizona and New Mexico. The only areas considered to be “new” but most likely occupied at the time of listing are those occurring in the ephemeral habitats in southeastern Arizona associated with monsoonal events.

Comment 51:
Several commenters expressed concern about designating critical habitat in areas that contain the nonnative tamarisk and were concerned whether it provided usable habitat and whether critical habitat locations with tamarisk would interfere, delay, or discourage removing tamarisk for long-term restoration efforts. One commenter stated that the nonnative tamarisk plant should not be identified as a physical or biological feature and listed as a riparian plant species used by the western yellow-billed cuckoo, as it will impede removal of the nonnative plant species and delay or discourage future habitat restoration efforts.

Our Response:
As stated in our revised proposed rule (see
Tamarisk
), the nonnative tamarisk is often characterized as being poor habitat for wildlife. However, it can be a valuable habitat substitute where the hydrology of a stream or river has been altered to the extent that native woodland or riparian habitat can no longer exist. Western yellow-billed cuckoo use areas containing tamarisk for breeding and foraging, especially when mixed with some native vegetation. In Arizona and New Mexico, it can provide cover, temperature amelioration, food, and nesting habitat. Actions such as clearing vegetation, modifying physical site conditions, altering natural river processes, and disrupting biotic interactions have facilitated tamarisk dispersal to new locales, and created opportunities for its establishment. Because tamarisk is so widespread in existing western yellow-billed cuckoo habitat and used for breeding and foraging, it constitutes habitat for the species, and any Federal actions taken within these areas would most likely be subject to consultation under section 7 due to occupation by the listed species regardless of the area being designated as critical habitat. The value of tamarisk for the western yellow-billed cuckoo depends on geographic and site-specific conditions. Tamarisk can contribute to suitable western yellow-billed cuckoo habitat where mixed with native habitat or adjacent to native habitat, especially in Arizona and New Mexico. Tamarisk is the result of altered hydrology, and removal alone will not create a rebound in native, riparian habitat. However, tamarisk removal combined with native tree replacement may benefit western yellow-billed cuckoos where sufficient water is available and long-term management and funding ensures tree survival. Because all the areas we identified as critical habitat are occupied, the section 7 consultation requirements for protecting the listed species would still apply.

Comment 52:
A couple of commenters raised issues pertaining to wildfire. One expressed concerns about how critical habitat could lead to causing an overgrowth of vegetation and potentially leave areas more vulnerable to catastrophic wildfires, while the other acknowledged the need for critical habitat to balance the increased risk of wildfire due to climate change.

Our Response:
We acknowledge that wildfire risk exists within all habitat to varying degrees across the range of the DPS. The designation of critical habitat does not mean that management for reduction of wildfire cannot occur. In fact, the identification of critical habitat as an educational tool may focus such wildfire management actions to help conserve the habitat. We will continue to work with Federal, State, and Tribal governments and private landowners within the designation to implement appropriate wildfire management actions within and outside any critical habitat designation.

Comment 53:
Several commenters stated that the description of the revised proposed critical habitat conflicts with the breeding and foraging habitat description in the 2014 proposed critical habitat and final listing rule.

Our Response:
We have learned more about western yellow-billed cuckoo foraging and breeding habitat since publication of the 2014 proposed critical habitat and final rule for listing. The revised proposed rule and this final rule include revised information on habitat features, foraging behavior, and breeding areas.

Comment 54:
Numerous commenters stated they have concerns with western yellow-billed survey information (such as interpretation, biases, and inconsistencies), a lack of comprehensive statewide surveys, and the likely existence of unsurveyed areas where western yellow-billed cuckoo could be found.

Our Response:
We recognize the lack of recent statewide survey information and that not all areas within the range of the DPS have been adequately surveyed. However, in development of critical habitat, we are required to use the best scientific and commercial information available to identify those areas essential to the conservation of the species. We used a combination of data collected using the standardized survey protocol (Halterman
et al.
2016, entire), data from species specific studies, and other credible detection data. Although we cannot always guarantee complete accuracy in the survey information provided to us, as of the 2014 listing, the persons conducting protocol

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2021-07402. Public record. Not legal advice.