Endangered and Threatened Wildlife and Plants; Final Determination of Critical Habitat for the Southwestern Willow Flycatcher

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB97

Endangered and Threatened Wildlife and Plants; Final

Determination of Critical Habitat for the Southwestern Willow

Flycatcher

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) designates

critical habitat for the southwestern willow flycatcher (Empidonax

traillii extimus), a species federally listed as endangered under the

authority of the Endangered Species Act of 1973, as amended (Act). The

Fish and Wildlife Service has identified 18 critical habitat units

totaling 964 river kilometers (km) (599 river miles) in Arizona,

California, and New Mexico. As required by section 4 of the Act, the

Service considered economic and other relevant impacts prior to making

a final decision on the size and configuration of critical habitat.

EFFECTIVE DATE: August 21, 1997.

ADDRESSES: The complete administrative record for this rule is on file

at the U.S. Fish and Wildlife Service, Arizona Ecological Services

Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, Arizona 85021. The

complete file for this rule will be available for public inspection, by

appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. Sam F. Spiller, Field Supervisor,

Arizona Ecological Services Office, U.S. Fish and Wildlife Service, at

the above address (Telephone 602/640-2720).

SUPPLEMENTARY INFORMATION:

Background

Ecological Considerations

The southwestern willow flycatcher (Empidonax traillii extimus) is

a small passerine bird, approximately 15 centimeters (cm) (5.75 inches)

in length. It is one of four subspecies of the willow flycatcher

recognized in North America (Hubbard 1987, Unitt 1987, Browning 1993).

The southwestern willow flycatcher's breeding range includes southern

California, Arizona, New Mexico, western Texas, southwestern Colorado,

southern portions of Nevada and Utah, and extreme northwestern Mexico

(Hubbard 1987, Unitt 1987, Wilbur 1987). During the breeding season,

the species occurs in riparian habitats along rivers, streams, open

water, cienegas, marshy seeps, or saturated soil where dense growths of

willows (Salix sp.), Baccharis, arrowweed (Pluchea sp.), tamarisk

(Tamarix sp.) or other plants are present, sometimes with a scattered

overstory of cottonwood (Populus sp.) (Grinnell and Miller 1944,

Phillips 1948, Zimmerman 1970, Whitmore 1977, Hubbard 1987, Unitt 1987,

Whitfield 1990, Brown and Trosset 1989, Brown 1991, Sogge et al. 1997).

These riparian communities, which tend to be rare and widely separated,

provide nesting, foraging, and migratory habitat for the southwestern

willow flycatcher. Empidonax traillii extimus is an insectivore that

forages within and occasionally above dense riparian vegetation, taking

insects on the wing and gleaning them from foliage (Wheelock 1912, Bent

1960).

Empidonax traillii extimus nests in dense riparian vegetation

approximately 4-7 meters (m) (13-23 feet) tall, often with a high

percentage of canopy cover. Historically, E. t. extimus nested

primarily in willows, with a scattered overstory of cottonwood

(Grinnell and Miller 1944, Phillips 1948, Whitmore 1977, Unitt 1987,

Sogge et al. 1997). In addition to nesting in riparian woodland

vegetation consisting of willows, arrowweed, tamarisk ``or other

species'', southwestern willow flycatchers nest almost exclusively in

coast live oaks (Quercus agrifolia) on the Upper San Luis Rey River in

San Diego County, California, which may be defined as an oak ``riparian

woodland.'' Following modern changes in riparian plant communities in

the southwest, E. t. extimus still nests in willows where available but

is also known to nest in areas dominated by tamarisk and Russian olive

(Zimmerman 1970, Hubbard 1987, Brown 1988). Sedgewick and Knopf (1992)

found that sites selected as song perches by male willow flycatchers

exhibited higher variability in shrub size than did nest sites and

often included large central shrubs. Habitats not selected for either

nesting or singing were narrower riparian zones, with greater distances

between willow patches and individual willow plants.

Large scale losses of southwestern wetlands have occurred,

particularly the cottonwood-willow riparian habitat of the southwestern

willow flycatcher (Phillips et al. 1964, Johnson and Haight 1984,

Katibah 1984, Johnson et al. 1987, Unitt 1987, General Accounting

Office 1988, Dahl 1990, State of Arizona 1990). Changes in the riparian

plant community have reduced, degraded and eliminated nesting habitat

for the willow flycatcher, curtailing its

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distribution and numbers (Serena 1982, Cannon and Knopf 1984, Taylor

and Littlefield 1986, Unitt 1987, Schlorff 1990). Habitat losses and

changes have occurred (and continue to occur) because of urban,

recreational and agricultural development, fires, water diversion and

impoundment, channelization, livestock grazing, and replacement of

native habitats by introduced plant species (see 58 FR 39495 and

Tibbitts et al. 1994 for detailed discussions of threats and impacts).

Brood parasitism by the brown-headed cowbird (Molothrus ater) is

another significant and widespread threat to the southwestern willow

flycatcher (Rowley 1930, Garret and Dunn 1981, Unitt 1987, Sogge 1995a

and 1995b, Whitfield and Strong 1995, Sferra et al. 1997). Although

some host species seem capable of simultaneously raising both cowbirds

and their own chicks, such is not the case with southwestern willow

flycatchers. Of all the nests monitored throughout the southwest

between 1988 and 1996, there are only two cases known where

southwestern willow flycatchers successfully fledged both flycatchers

and cowbirds. In all other cases, parasitism caused complete nest

failure or the successful rearing of only cowbird chicks (Brown 1988,

Whitfield 1990, Whitfield and Strong 1995, Sogge 1995a and 1995b,

Maynard 1995, Sferra et al. 1997).

In a review of historical and contemporary records of Empidonax

traillii extimus throughout its range, Unitt (1987) noted that the

species has ``declined precipitously * * *'' and that ``the population

is clearly much smaller now than 50 years ago.'' He believed the total

was ``well under'' 1000 pairs, more likely 500 (Unitt 1987). Nesting

groups monitored since that time have continued to decline (Whitfield

1990, Brown 1991, Sogge and Tibbitts 1992, Whitfield and Laymon,

unpubl. data). Since 1992, more than 800 historic and new locations

have been surveyed range wide to document the status of the

southwestern willow flycatcher (USFWS, unpubl. data). The current known

population of southwestern willow flycatchers is estimated at between

300 and 500 pairs (Sogge et al. 1997). This indicates a critical

population status, with more than 75 percent of the locations where

flycatchers are found having five or fewer territorial birds and up to

20 percent of the locations having single, unmated individuals. The

distribution of breeding groups is highly fragmented, with groups often

separated by considerable distances (e.g., approximately 88 kilometers

(km) (55 miles) straight-line distance between breeding flycatchers at

Roosevelt Lake, Gila County, Arizona, and the next closest breeding

groups known on either the San Pedro River (Pinal County) or Verde

River (Yavapai County). Additional survey effort, particularly in

southern California, may discover additional small breeding groups.

However, rangewide survey efforts have yielded positive results in

fewer than 10 percent of surveyed locations. Moreover, survey results

reveal a consistent pattern range wide; the southwestern willow

flycatcher population as a whole is comprised of extremely small,

widely-separated breeding groups or unmated flycatchers.

For a thorough discussion of the ecology and life history of the

southwestern willow flycatcher, see Sogge et al. (1997), the proposed

rule to list the southwestern willow flycatcher as endangered with

critical habitat (58 FR 39495) or the final rule listing the

southwestern willow flycatcher as endangered (60 FR 10694).

Previous Federal Actions

On January 25, 1992, a coalition of conservation organizations

petitioned the Service, requesting listing of Empidonax traillii

extimus as an endangered species, under the Act. The petitioners also

appealed for emergency listing, and designation of critical habitat. On

September 1, 1992, the Service published a finding that the petition

presented substantial information indicating that listing may be

warranted and requested public comments and biological data on the

species (57 FR 39664). On July 23, 1993, the Service published a

proposal to list E. t. extimus as endangered with critical habitat (58

FR 39495), and again requested public comments and biological data on

the species. The Service published a final rule to list E. t. extimus

as endangered on February 27, 1995 (60 FR 10694). The Service deferred

the designation of critical habitat for this endangered species until

July 23, 1995, pursuant to 16 U.S.C. Sec. 1533(b)(6)(C), citing issues

raised in public comments, new information, and the lack of the

economic information necessary to perform the required economic

analysis. The Service reopened the comment period on the proposal to

designate critical habitat. During and following the listing moratorium

and a series of rescissions of listing funds imposed by Congress from

April 1995 to April 1996, the Service took no action on the proposal to

designate critical habitat due to resource constraints. On March 20,

1997, the U.S. District Court of Arizona, in response to a suit by the

Southwest Center for Biological Diversity, ordered the Service to

designate critical habitat for the southwestern willow flycatcher

within 120 days. On July 3, 1997, the Court clarified that order,

noting that the 120-day timeframe was provided for the Service to make

a decision as to whether or not to designate critical habitat and not

to make a substantive determination of designation.

The Service has not previously designated critical habitat for the

flycatcher because, as discussed in detail below, critical habitat

designation provides little or no conservation benefit despite the

great cost to put it in place. The Service's conclusion in this regard

is reflected in its Listing Priority Guidance (61 FR 64475), under

which designation of critical habitat is accorded the lowest priority

among the Service's various listing activities. In accordance with the

Listing Priority Guidance, since the lifting of the moratorium the

Service has spent the scarce resources available to it for listing

activities on meeting other requirements of the Act that provide

significantly more conservation benefit. Nonetheless, the Service has

been ordered to make a final determination with regard to critical

habitat in an exceedingly short period of time. This final rule is

issued to comply with that order. The rule meets the technical

requirements of the Act; however, because of the unprecedented time

constraints resulting from the court order, the Service was not able to

provide the level of analysis and completeness that it has in the past

on such rules. The Service is designating critical habitat for the

southwestern willow flycatcher as it was proposed in 1993, with the

deletion of some minor areas that were found to have been proposed in

error because they have little or no potential for flycatcher habitat

(see Issue 4 in Summary of Comments and Recommendations). The Service

concedes that there may be additional areas that could be excluded

because they no longer require special management considerations or

protection due to ongoing management agreements, such as that with

respect to Camp Pendleton. Similarly, the Service has been unable to

consider additional areas for inclusion in this rule in response to the

comments received.

Even promulgating this rule stripped down to its essentials has

placed an enormous burden on the Service. The Service had no option but

to disrupt significant work at the Field Office, Regional, and National

levels in order to provide the resources to generate this

[[Page 39131]]

final rule. The Service intends to further articulate its views

concerning critical habitat, and to provide the public with an

opportunity to comment on those views, in the development of a specific

critical habitat policy in the very near future. However, the below

analysis is provided to elaborate on why the Service has placed

critical habitat designation among the lowest priorities in the Listing

Priority Guidance, and therefore why critical habitat for the

flycatcher was not designated prior to this time.

Critical Habitat

Designation of critical habitat for endangered or threatened

species has been among the most costly and controversial classes of

administrative actions undertaken by the Service in administering the

Act. Over 20 years of experience in designating critical habitat and

applying it as a tool in conserving species leads the Service to

seriously question its utility and the value it provides in comparison

to the monetary, administrative, and other resources it absorbs.

Although the Service is, in this case, designating critical habitat

pursuant to a Court order that requires the Service to make a final

determination, the Service believes that critical habitat is not an

efficient or effective means of securing the conservation of species.

An analysis supporting this conclusion is presented below.

The Designation Process

When the Service lists a species as threatened or endangered, the

Act requires that it specify, ``to the maximum extent prudent and

determinable,'' the species' critical habitat. If critical habitat is

not considered determinable at the time a final rule is adopted to list

a species, it must be designated ``to the maximum extent prudent''

within 1 additional year. Thus the ultimate test in determining whether

or not critical habitat is designated for a species is one of prudence.

The basis for the Court order directing the present designation was the

Service's failure to either designate critical habitat or to find that

its designation would not be prudent within 1 year of the listing of

the southwestern willow flycatcher as an endangered species.

The Act's definitions of ``critical habitat'' and ``conservation''

are central to any interpretation of critical habitat's attributes and

effects. Critical habitat is defined in Section 3(5)(A) of the Act as

``(i) the specific areas within the geographical area occupied by a

species, at the time it is listed in accordance with the Act, on which

are found those physical or biological features (I) essential to the

conservation of the species and (II) that may require special

management considerations or protection; and (ii) specific areas

outside the geographical area occupied by a species at the time it is

listed, upon a determination that such areas are essential for the

conservation of the species.'' The term ``conservation,'' as defined in

section 3(3) of the Act, means ``. . . to use and the use of all

methods and procedures which are necessary to bring any endangered

species or threatened species to the point at which the measures

provided pursuant to this Act are no longer necessary.'' A designation

of critical habitat thus implies not only specific knowledge of the

habitat needs of a species, but also an idea of what would be needed in

the way of habitat protection and management to bring about the

species' recovery.

The Act also requires a consideration of economic and other

consequences as part of the designation process, with the option of

excluding areas from designation if the benefits of such exclusion

outweigh the benefits of designation, and if exclusion would not result

in the extinction of the species. A good understanding of the effects

of designation, both in general and for particular cases, is required

to carry out this analytic requirement and to provide a basis for the

consideration of potential exclusions.

At the time a species is listed, there is generally no detailed

understanding of the management measures that will be required for its

recovery, so that designation at this time can only crudely reflect its

conservation needs. Meanwhile, the required analysis is necessarily

highly speculative in that it must incorporate assumptions regarding

future economic activity that may be difficult to characterize, and it

is aimed at the increment of effect on these activities attributable to

designation over and above those consequent to the species' listing.

Finally, the economic balancing that is the object of the analysis is

only possible to the extent that these two sets of effects can be

differentiated, and the limit on this balancing (i.e., that exclusion

may not cause extinction) is not meaningful if the failure to designate

critical habitat cannot plausibly have this effect.

In determining the extent to which designation of critical habitat

is prudent, Congress directed the Service to consider whether the

designation would be of benefit to the species concerned. In recent

years, the Service has foregone designating critical habitat for most

species it has listed on the basis that it would not provide any net

benefit to their conservation.

Designation by regulation

Critical habitats are designated in the Code of Federal Regulations

and can be altered only through a rulemaking process that commonly

requires over a year from start to finish. In fact, revision is a

sufficiently complex undertaking that the Service has never revised a

critical habitat designation, in spite of it being possible to do so.

The range and habitat use of a species do not necessarily remain

unchanged over time or change so slowly as to be readily tracked by

costly and time-consuming regulatory amendments.

The Consequences of Designation

Section 7 of the Act requires that Federal agencies refrain from

contributing to the destruction or adverse modification of critical

habitat. This requirement is in addition to the prohibition against

jeopardizing the continued existence of a listed species, and it is the

only mandatory legal consequence of a critical habitat designation. An

understanding of the interplay of the ``jeopardy'' and ``adverse

modification'' standards is necessary to the proper evaluation of the

prudence of designation as well as the conduct of consultation under

section 7. Implementing regulations (50 CFR part 402) define

``jeopardize the continued existence of'' and ``destruction or adverse

modification of'' in virtually identical terms. Jeopardize the

continued existence of means to engage in an action ``that reasonably

would be expected * * * to reduce appreciably the likelihood of both

the survival and recovery of a listed species.'' Destruction or adverse

modification means an ``alteration that appreciably diminishes the

value of critical habitat for both the survival and recovery of a

listed species.'' Common to both definitions is an appreciable

detrimental effect on both survival and recovery of a listed species,

in the case of critical habitat by reducing the value of the habitat so

designated. Thus, actions satisfying the standard for adverse

modification are nearly always found to also jeopardize the species

concerned, and the existence of a critical habitat designation does not

materially affect the outcome of consultation. This is in contrast to

the public perception that the adverse modification standard sets a

lower threshold for violation of section 7 than that for jeopardy. In

fact, biological opinions which conclude that a Federal agency action

is likely to adversely

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modify critical habitat but not to jeopardize the species for which it

is designated are extremely rare historically, and none have been

issued in recent years.

Scope of Analysis

Given the difficulty of separating the independent incremental

effects of designation of critical habitat from those associated with

the listing of a species, it should not be surprising that the approach

to economic analysis is problematic. A recent analysis for the

designation of nearly 4 million acres of critical habitat for the

marbled murrelet concluded, in part, that the designation ``is not

likely to restrict the activities of any federal agency'' and that it

``will not cause these agencies (the Forest Service and Bureau of Land

Management) to manage federal lands in a manner that will have

immediate, direct impacts on the flow of goods and services from these

lands.'' Critics have complained that economic analyses of critical

habitat designations greatly underestimate the effects of the ESA on

the economy, or alternatively that environmental benefits are generally

given cursory coverage. Both points of view have elements of validity.

On the one hand, the effects of the ESA on society stem overwhelmingly

from the protection afforded by the listing of species, but the tenuous

effects of critical habitat designation are the only ones subject to

the requirement of economic analysis. On the other hand, the object of

the analysis is an examination of areas for possible exclusion from

critical habitat, leading to a focus on possible deleterious economic

effects that might provide grounds for exclusion, rather than the

benefits society derives from the operation of the ESA.

The Cost of Designation

In a recent declaration filed in a Federal District Court, the

Service's Assistant Director estimated that economic analyses alone for

the designation of critical habitat for the marbled murrelet (quoted

above) and Mexican spotted owl cost in excess of $100,000 each. The

total cost of other recent designations, as those for the desert

tortoise and Colorado River fishes, have been estimated at

approximately $1,000,000 each. The Service currently has on hand

information sufficient to propose nearly 200 candidate species for

listing, and several hundred other species are known to require status

surveys to determine whether they qualify. The resources required to

designate a critical habitat typically are ten times what would be

required to list a backlogged candidate species. On conservation

grounds, the Service cannot justify devoting resources to a critical

habitat designation that would otherwise be available to afford basic

protection to ten or more candidate species. Critical habitat

designations have too little effect on the way land and water is

managed for the conservation of species to justify the drain they

represent on Federal resources.

Public Perception of Designation

Controversy over critical habitat designation arises in substantial

part from public misunderstanding of the effects designation has on

potential resource uses. The common public perception is that critical

habitat is an inviolate preserve within which human activities are

excluded entirely or drastically curtailed. It is not difficult to

understand this misperception given the common-sense meaning of

``critical habitat.'' In fact, the designation of critical habitat may

provide some benefits to a species by identifying areas important to

the species' conservation, particularly until a recovery plan is

adopted, including habitat that is not presently occupied and that may

require restoration efforts to support recovery. However, these

benefits are minor, apply only where there is Federal agency

involvement, and consume considerable funds that could be spent

elsewhere to much greater benefit.

Identification of Critical Habitat for the Southwestern Willow

Flycatcher

Empidonax traillii extimus is endangered by extensive loss of

nesting habitat and is now extirpated across much of its former

breeding range. A neotropical migratory bird, E. t. extimus is present

in its breeding habitat from late April until August or September. It

then migrates to wintering grounds in Mexico, Central America, and

perhaps northern South America (Gorski 1969, McCabe 1991). Little is

known about threats in its wintering grounds. However, even during the

nonbreeding season when the species is not present, nesting habitat and

especially potentially recoverable nesting habitat remain vulnerable.

Conserving and enhancing the constituent elements of current and

potential nesting habitat is necessary to facilitate recovery of the

species. The Service may designate as critical habitat areas outside

the geographical area presently occupied by a species when a

designation limited to its present range would be inadequate to ensure

the conservation of the species (50 CFR 424.12(e)). Such a situation

exists for the southwestern willow flycatcher, for which recovery of

the physical and biological features and constituent elements of

nesting habitat and space for population growth are needed to ensure

the conservation and recovery of the species.

Primary Constituent Elements

The Service is required to base critical habitat determinations on

the best available scientific information (50 CFR 424.12). In

determining what areas to designate as critical habitat, the Service

considers those physical and biological features that are essential to

the conservation of the species and that may require special management

considerations or protection. Such requirements include but are not

limited to the following: (1) Space for individual and population

growth; (2) food, water, air, light, minerals, or other nutritional or

physiological requirements; (3) cover or shelter; (4) sites for

breeding, reproduction, rearing of offspring, germination, or seed

dispersal; and (5) habitats that are protected from disturbance or are

representative of the historic geographical and ecological

distributions of a species. The Service is proposing to designate as

critical habitat areas which provide or with rehabilitation will

provide the above five physical and biological features and primary

constituent elements.

For all areas of critical habitat designated here, these physical

and biological features and primary constituent elements are provided

or will be provided by dense thickets of riparian shrubs and trees

(native and exotic species). This vegetation, by definition, occurs

near rivers, streams, open water, cienegas, marshy seeps, or saturated

soil. Constituent elements of critical habitat include the riparian

ecosystem within the 100-year floodplain, including areas where dense

riparian vegetation is not present, but may become established in the

future. The species composition of vegetation ranges from nearly

monotypic stands (i.e., single species) to stands with multiple species

(see Sogge et al. 1997). Vegetation structure ranges from simple,

single stratum patches as low as 3 meters (9 feet) in height and

lacking a distinct overstory to complex patches with multiple strata

and canopies nearing 18 meters (60 feet) in height. Vegetation patches

may be uniformly dense throughout, or occur as a mosaic of dense

thickets interspersed with small openings, bare soil, open water, or

shorter/sparser vegetation. Riparian patches used by breeding

flycatchers vary in size and shape, and may be relatively dense, linear

contiguous

[[Page 39133]]

stands or irregularly-shaped mosaics of dense vegetation with open

areas. The size of vegetation patches or habitat mosaics used by

southwestern willow flycatchers varies considerably and ranges from as

small as 0.8 hectares (2 acres) to several hundred hectares. However,

narrow linear riparian patches only one to two trees deep that have no

potential (absent limiting factors) to increase in depth are not

considered breeding habitat, although they may be used by southwestern

willow flycatchers during migration.

A total of approximately 964 km (599 miles) of stream and river are

being designated as critical habitat. The areas described were chosen

for critical habitat designation because they contain the remaining

known southwestern willow flycatcher nesting sites, and/or formerly

supported nesting southwestern willow flycatchers, and/or have the

potential to support nesting southwestern willow flycatchers. All areas

contain or with restoration will contain suitable nesting habitat in a

patchy, discontinuous distribution. This distribution is partially the

result of natural regeneration patterns of riparian vegetation (e.g.

cottonwood-willow). The distribution of these habitat patches is

expected to shift over time. Because of this spatial and temporal

distribution of habitat patches, it is important that the entirety of

the proposed river reaches be considered critical habitat. All areas

contain some unoccupied habitat or former (degraded) habitat, needed to

recover ecosystem integrity and support larger southwestern willow

flycatcher numbers during the species' recovery. A number of separate,

protected, healthy populations of southwestern willow flycatchers are

needed to protect the species from extinction by functioning as

population sources (Pulliam 1988). Protection of this proposed critical

habitat should ensure sufficient quantity and quality of habitat to

stabilize and recover this species. The southwestern willow flycatcher

is already extirpated from a significant portion of its former range.

Critical habitat for the southwestern willow flycatcher will

include riparian areas within the 100-year floodplain along streams and

rivers in southern California, Arizona, and New Mexico (Figure 1).

Descriptions and maps of each area are located in this rule under

``Regulation Promulgation.''

BILLING CODE 4310-55-P

[GRAPHIC] [TIFF OMITTED] TR22JY97.010

[[Page 39134]]

Available Conservation Measures

Because Empidonax traillii extimus is a listed species, the Act

provides conservation measures, including recognition, recovery

actions, requirements for Federal protection, and prohibitions against

certain practices. Recognition through listing encourages and results

in conservation actions by Federal, State, and private agencies,

groups, and individuals. The Act provides for possible land acquisition

and cooperation with the States and authorizes recovery plans for all

listed species. The protection required of Federal agencies and the

prohibitions against taking and harm are discussed, in part, below.

Section 7(a) of the Act requires Federal agencies to evaluate their

actions with respect to any species that is proposed or listed as

endangered or threatened and with respect to its critical habitat, if

any is being designated. Regulations implementing this interagency

cooperation provision of the Act are codified in 50 CFR part 402.

Section 7(a)(2) requires Federal agencies to ensure that activities

they authorize, fund, or carry out are not likely to jeopardize the

continued existence of such a species or to destroy or adversely modify

its critical habitat. If a Federal action may affect a listed species

or its critical habitat, the responsible Federal agency must enter into

formal consultation with the Service.

The U.S. Marine Corps and Service have worked together to develop a

comprehensive, ecosystem-oriented wildlife conservation management plan

covering all riparian and coastal wetland habitat areas on the base at

Camp Pendleton. This effort culminated in a mutually agreed upon

conservation strategy and implementation program that was endorsed by

the Secretary of the Interior and Service at a signing ceremony with

the Commanding General in October 1995. The conservation program has

contributed substantially to the protection and recovery of the least

Bell's vireo, southwestern willow flycatcher, and other listed species

(i.e., arroyo toad, tidewater goby, California least tern, and western

snowy plover) found in riparian and coastal wetland habitats along the

Santa Margarita River and Pacific Ocean. Indeed, the Department of

Defense awarded Camp Pendleton the Department's Natural Resources Award

for 1996 largely because of the successful implementation of the

riparian and coastal wetland conservation program. The Service does not

intend the designation of critical habitat to result in the imposition

of any additional restrictions for actions taken at Camp Pendleton

which are consistent with the conservation measures outlined under the

management plan. Thus, for example, if the Marine Corps needed a permit

under the Clean Water Act for an activity which was consistent with the

conservation management plan, the Service would not view such activity

as adversely modifying or destroying critical habitat for the willow

flycatcher.

On other Federal lands, various ongoing activities within riparian

areas may benefit the flycatcher. The Forest Service and Bureau of Land

Management have focused attention on modifying livestock grazing

practices in recent years, particularly as they affect riparian

ecosystems. The Bureau of Land Management's San Pedro National Riparian

Conservation Area in Arizona has excluded livestock for 10 years which

has resulted in significant restoration of riparian habitats and

increased populations of bird species associated with riparian habitat,

including the willow flycatcher. The Forest Service, in cooperation

with others, is monitoring the southwestern willow flycatcher

population on the San Luis Rey River on Forest Service lands, and has

an on-going brown-headed cowbird trapping program on the San Luis Rey

River and other streams within the Cleveland National Forest. As

mitigation for other projects impacting riparian habitats, the Bureau

of Reclamation is engaged in a cowbird management program and riparian

habitat restoration projects in several areas in the range of Empidonax

traillii extimus, including some historical nesting locations. Riparian

habitat rehabilitation is also underway at several National Wildlife

Refuges in the breeding range of E. t. extimus, which are managed by

the Service. Grand Canyon National Park has instituted a seasonal

recreation closure at the remaining site with nesting willow

flycatchers in the Grand Canyon.

In addition to conservation on Federal lands, in 1991, the State of

California established the Natural Communities Conservation Planning

(NCCP) Program to address conservation needs of natural ecosystems

throughout the State. The Multiple Species Conservation Program (MSCP)

in southwestern San Diego County is one of the first subregional plans

under the NCCP to be developed. The MSCP planning area consists of 12

jurisdictions and several water districts, each of which will develop

subarea plans to implement the MSCP within their boundaries. The City

of San Diego has approved the MSCP and finalized their subarea plan.

The remaining jurisdictions and the Otay Water District are expected to

finalize their subarea plans within the near future.

The southwestern willow flycatcher is considered a covered species

under the MSCP based on the proposed level of conservation. The MSCP

will preserve over 9,000 acres or 75 percent of the remaining riparian

habitats within the planning boundary. Impacts to riparian areas

outside of the preserve will be avoided, minimized, and mitigated under

local guidelines and ordinances, and existing State and Federal wetland

regulations. Thus, no net loss of acreage of riparian habitat is

proposed within the MSCP, and no additional restrictions are

anticipated as a result of critical habitat designation.

All of the designated critical habitat for the southwestern willow

flycatcher along the San Dieguito, San Diego, and Tijuana Rivers will

be conserved and managed within the MSCP preserve system. The MSCP

assures permittees that compliance with the Federal policy of ``no net

loss'' of wetland functions and values, the U.S. Environmental

Protection Agency's section 404(b)(1) guidelines, and the requirements

of the MSCP and local subarea plan will constitute the full extent of

mitigation measures directed specifically at the incidental take of

covered species recommended by the Service pursuant to the Act and the

National Environmental Policy Act. In addition, the Service has agreed

that, if the subarea plans for each jurisdiction under the MSCP are

properly functioning, the Service will not require that permittees or

third party beneficiaries commit additional land, additional land

restrictions, or additional financial compensation beyond that provided

in each implementing agreement should critical habitat for a covered

species be designated.

The approved NCCP/Habitat Conservation Plan for the Central and

Coastal Subregions of Orange County, California, provides benefits to

the southwestern willow flycatcher. The plan establishes an

approximately 37,300-acre nature preserve and requires surveys for the

southwestern willow flycatcher to ensure that occupied habitat with

potentially significant long-term conservation value will be conserved.

The adaptive management program for the preserve includes monitoring,

cowbird control, and habitat enhancement measures for the flycatcher.

Again, the Service anticipates that no additional restrictions will

apply to activities undertaken in accordance with the

[[Page 39135]]

approved Orange County NCCP plan as a result of this critical habitat

designation.

The Audubon Society manages one of the largest remaining flycatcher

populations in California, and The Nature Conservancy (TNC) manages

several areas with high recovery potential. TNC maintains a cowbird

trapping program in Orange County that provides indirect benefits to

potential nesting habitat for the southwestern willow flycatcher.

In addition to public and private lands, critical habitat occurs on

land belonging to the Yavapai-Apache Tribe in Arizona and on land

belonging to the Pala Mission Tribe in California. Pursuant to Tribal

sovereignty and the Service's associated responsibilities, as well as

the recent Secretarial Order for American Indian Tribal Rights,

Federal-Tribal Trust Responsibilities and the Endangered Species Act,

the Service has consulted with both tribes prior to completion of this

rule in order to ensure that tribal cultural values, and reserved

hunting, fishing, gathering and other rights were considered in this

designation. The Service will continue to work cooperatively with the

tribes and remain available to assist in development of conservation

plans for the area that meet both the intent of the Act and Tribal

needs.

It is the policy of the Service to identify to the maximum extent

practicable at the time of listing those activities that would or would

not constitute a violation of section 9 of the Act. The intent of this

policy is to increase public awareness of the effect of the listing on

proposed or on-going activities. These activities are listed in the

final rule listing the southwestern willow flycatcher (60 FR 10694).

Likewise, section 4(b)(8) requires, for any proposed or final

regulation that designates critical habitat, a brief description and

evaluation of those activities (public or private) that may adversely

modify such habitat or may be affected by such designation. Such

activities may include:

(1) Removing, thinning or destroying riparian vegetation.

Activities which remove, thin, or destroy riparian vegetation, by

mechanical, chemical (herbicides or burning), or biological (grazing)

means reduce constituent elements for southwestern willow flycatcher

sheltering, feeding, breeding, and migrating.

(2) Surface water diversion or impoundment, groundwater pumping, or

any other activity which may alter the quantity or quality of surface

or subsurface water flow. Activities which alter the quantity or

quality of surface or subsurface water flow may affect riparian

vegetation, food availability, or the general suitability of the site

for nesting or migrating.

(3) Destruction/alteration of the species' habitat by discharge of

fill material, draining, ditching, tiling, pond construction, and

stream channelization (i.e., due to roads, construction of bridges,

impoundments, discharge pipes, stormwater detention basins, etc.).

(4) Overstocking of livestock. Excessive use of riparian areas and

uplands for livestock grazing may affect the volume and composition of

riparian vegetation, may physically disturb nests, may alter floodplain

dynamics such that regeneration of riparian habitat is impaired or

precluded, and may facilitate brood parasitism by brown-headed

cowbirds.

(5) Development of recreational facilities and off-road vehicle

operation. Activities which facilitate recreational activities and off-

road vehicle use may affect riparian vegetation, result in compaction

of soils degrading areas where riparian vegetation is established or

would become established, alter floodplain dynamics such that riparian

regeneration is impaired or precluded, promote fires in riparian

habitats, reduce space for individual and population growth, and

inhibit normal behavior.

In general, activities that do not remove or degrade constituent

elements of habitat for Empidonax traillii extimus are not likely to

destroy or adversely modify critical habitat. Each proposed action will

be examined pursuant to section 7 of the Act in relation to its site-

specific impacts.

The designation of critical habitat does not imply that lands

outside of critical habitat do not play an important role in the

conservation of Empidonax traillii extimus. Federal activities outside

of critical habitat are still subject to review under section 7 if they

may affect E. t. extimus. Prohibitions of Section 9 also continue to

apply both inside and outside of designated critical habitat.

Summary of Comments and Recommendations

In the July 23, 1993, proposed rule to list the Empidonax traillii

extimus as endangered with critical habitat (58 FR 39495), all

interested parties were requested to submit comments or information

that might bear on the listing of or designation of critical habitat

for the southwestern willow flycatcher. The comment period was

originally scheduled to close October 21, 1993, but was extended to

November 30, 1993. Appropriate State agencies, Federal agencies, county

governments, scientific organizations, and other interested parties

were contacted and requested to comment. Newspaper notices inviting

public comment were published in the following newspapers: In

California, the Los Angeles Times, L.A. Watts Times, Kern Valley Sun,

and San Diego Union-Tribune; in Arizona, the Arizona Daily Sun, Arizona

Republic, Tucson Daily Citizen, White Mountain Independent, and Arizona

Daily Star; in New Mexico, the Albuquerque Journal, Albuquerque

Tribune, Santa Fe New Mexican, Carlsbad Current-Argus, Silver City

Daily Press; in Nevada, the Las Vegas Sun; in Colorado, the Durango

Herald; in Utah, the Daily Spectrum; and in Texas, the El Paso Times.

The inclusive dates of publications were August 31 through September

13, 1993, for the initial comment period and October 28 through

November 5, 1993, for the public hearings and extension of public

comment period.

The Service held six public hearings. Three of these were held in

anticipation of interest in the proposed rule, and three additional

were held in response to requests from the public. A notice of the

hearing dates and locations was published in the Federal Register on

October 18, 1993 (58 FR 53702). Approximately 424 people attended the

hearings. Approximately 17 people attended the hearing in Tucson, AZ;

27 in Flagstaff, AZ; 10 in Las Cruces, NM; 12 in Albuquerque, NM; 350

in Lake Isabella, CA; and 8 in San Diego, CA. Transcripts of these

hearings are available for inspection (see ADDRESSES section).

A second public comment period was held from February 27, 1995, to

April 28, 1995, during which comments were solicited on proposed

critical habitat. A total of 3,240 written and oral responses was

received during the two public comment periods. All comments received

were reviewed for substantive issues and new data regarding critical

habitat and the southwestern willow flycatcher. Comments of a similar

nature are grouped into a number of general issues. Ten general issues

were identified relating specifically to proposed critical habitat.

These are addressed in the following summary.

Issue 1: Development of conservation agreements would be more

effective in providing a net benefit to the southwestern willow

flycatcher than designation of critical habitat, and existing

agreements make designation of critical habitat unnecessary in some

areas.

[[Page 39136]]

Service Response: The Service agrees that implementation of

comprehensive conservation agreements could effectively protect and

enhance both occupied and unoccupied habitat for the southwestern

willow flycatcher, and also have the potential to provide for recovery

of the species. Toward this end, the U.S. Marine Corps and the State of

California have both worked with the Service to develop ecosystem-

oriented conservation plans that the Service believes will be highly

effective in providing for the conservation needs of the southwestern

willow flycatcher at Camp Pendleton and in portions of San Diego and

Orange counties. Unfortunately, due to imposed time constraints and

lack of funding, at this time the Service is not able to undertake

further analysis with regard to critical habitat designation although

such analysis might ultimately negate the need for designation in areas

such as these.

Issue 2: Designation of critical habitat would offer no additional

protection above listing; critical habitat can only be designated for

areas on which essential biological and physical features are currently

found.

Service Response: The designation of critical habitat may provide

some benefits to the southwestern willow flycatcher by identifying for

the public areas important to the species' conservation and

highlighting areas important to the species until a recovery plan is

adopted, including habitat that is not presently occupied by

flycatchers and that may require restoration efforts to support

recovery. The areas included in this designation are believed to be

justified as providing biological and physical features essential to

the flycatcher's conservation. Nevertheless, the Service generally

agrees that the protection afforded by the designation of critical

habitat is marginal in comparison to the protective measures provided

by the species' listing. Regardless of the perceived benefit of this

designation, however, the Service is required to comply with the Court

order requiring a final determination on designation within a specified

time limit.

Issue 3: Critical habitat would not improve the status of the

southwestern willow flycatcher because cowbirds, rather than habitat,

are the limiting factor.

Service Response: The Service recognizes that cowbird parasitism is

a major threat to the viability of the southwestern willow flycatcher.

That threat is exacerbated by the small size and highly fragmented

nature of extant riparian habitats. Habitat suitability for cowbirds,

and thus cowbird abundance and rates of parasitism, appear to decrease

as habitat size and extent increases, ostensibly because patches with

higher ratios of interior to edge habitat are more difficult for

cowbirds to penetrate. In addition, larger habitat patches should have

more host species. Thus, increasing the size and extent of riparian

habitat on a local scale should reduce the rate of cowbird parasitism

on southwestern willow flycatchers by decreasing habitat suitability

for the cowbird and by increasing the number of non-flycatcher host

species that can be parasitized. In many of the small riparian stands

inhabited by flycatchers the number of cowbirds may outnumber host

species, including the flycatcher. In those areas cowbird management

programs will be needed to increase flycatcher reproductive success in

the short-term. The Service believes, however, that over the long-term

the most effective strategy to reduce the rate and extent of cowbird

parasitism is to reduce riparian habitat fragmentation on a regional

scale and to vastly increase the size and extent of riparian habitat on

a local scale.

Issue 4: The proposed critical habitat includes areas with little

potential for appropriate habitat and omits areas with known flycatcher

breeding groups or areas with high potential for occupancy by

flycatchers.

Service Response: The Service received many comments from Federal,

State, and private entities recommending deletions and additions to

proposed critical habitat. In response to public comments, some areas

that were included in the proposed rule were found to be proposed in

error because they have little or no potential for flycatcher habitat,

and were omitted from the final designation. These include:

Approximately 5 miles of shoreline at Lake Isabella downstream of the

South Fork Wildlife Area, removed due to a lack of potential for

habitat to develop along the lakeshore (Kern County, CA); Peck's Lake,

removed due to a lack of potential for habitat to develop around

shoreline (Yavapai County, AZ); approximately 5 miles along the upper

portion of Wet Beaver Creek, removed due to lack of potential for

suitable habitat to develop (Yavapai County, AZ); approximately 14

miles along the upper portion of West Clear Creek, removed due to lack

of potential for suitable habitat to develop (Yavapai County, AZ);

approximately 20 miles along the Rio Grande, removed due to lack of

potential for suitable habitat to develop (Bernalillo County, NM).

The Service did not consider omissions for other reasons or

additions to the critical habitat proposed in 1993 because imposed time

constraints and lack of resources made this impracticable. This does,

not, however, preclude the Service from considering further omissions

and additions to critical habitat for this species at some time in the

future as resources allow.

Issue 5: Existing regulatory mechanisms and agency management plans

targeted at listed species provide adequate protection.

Service Response: The Service agrees that some existing regulatory

mechanisms and management plans provide conservation benefits to the

flycatcher. As mentioned in Issue 1, the U.S. Marine Corps and the

State of California have both worked with the Service to develop

ecosystem-oriented conservation plans that the Service believes will be

highly effective in providing for the conservation needs of the

southwestern willow flycatcher at Camp Pendleton and in portions of San

Diego and Orange counties. Although designation of critical habitat

should not impose any additional restrictions on actions consistent

with the management agreements in these areas now or in the future,

they do not cover sufficient area to provide adequate protection for

the species as a whole. Furthermore, the Service is obliged to comply

with a Court order to designate critical habitat for the flycatcher.

Provisions of section 404 of the Clean Water Act do not

specifically protect the southwestern willow flycatcher or its habitat,

but do provide some protection to the aquatic and riparian ecosystems

of which it is a part. Section 404 also provides for mitigation for

destruction of these habitats, although even temporary destruction and

subsequent replacement of important riparian habitat may adversely

affect the southwestern willow flycatcher. Regardless of the possible

conservation benefits of the Clean Water Act, however, this designation

is required by Court order.

Issue 6: The Service is required to comply with the National

Environmental Policy Act in designating critical habitat.

Service Response: An Environmental Assessment (EA) and a draft

Finding of No Significant Impact (FONSI) have been prepared for this

rule in accordance with 40 CFR 1501.3 (see following section entitled

National Environmental Policy Act). The EA and FONSI are available upon

request from the Field Supervisor, Arizona Ecological Services Field

Office (see ADDRESSES above).

[[Page 39137]]

Issue 7: Designation of critical habitat would result in loss of

revenues that local communities derive from use of public lands;

critical habitat will adversely affect State, Municipal, and private

lands.

Service Response: Critical habitat only applies to Federal actions

on Federal lands or Federally-permitted actions on private lands. The

economic analysis provided in this final rule demonstrates that there

will be no adverse economic effects above the effects that would result

from the listing of the species.

Issue 8: Riparian habitats are in a constant state of change,

making any boundaries established under critical habitat also subject

to change; lateral boundaries of critical habitat do not meet

regulatory requirements because they are difficult to interpret and

change seasonally; the constituent elements of critical habitat for the

southwestern willow flycatcher have not been adequately described.

Service Response: The upstream/downstream boundaries established

with this final rule, to a limited extent, incorporated the dynamic

nature of riparian habitats that commentors referred to and that is

discussed under issue number two. The Service agrees, however, that the

lateral boundaries of critical habitat are inadequate and do not

incorporate the dynamic nature of riparian systems. For example,

changes in the distribution of riparian habitats in response to natural

flooding events, or changes in stream flow due to droughts,

impoundments, etc., sometimes leave suitable habitat more than 100

meters from surface water. To alleviate this inadequacy, the lateral

boundaries of critical habitat were established by the 100-year

floodplain, which is delineated on maps available at county offices and

the Federal Emergency Management Agency.

Issue 9: The Service is focusing management efforts for the

southwestern willow flycatcher too narrowly on factors affecting the

species only on its breeding grounds.

Service Response: The Service agrees that factors affecting the

southwestern willow flycatcher during the non-breeding season could be

playing a significant role in the status of this species. To that end

the Service has supported work currently funded by the Bureau of

Reclamation to identify the distribution of the southwestern willow

flycatcher during the non-breeding season. If research demonstrates

adverse effects outside of the United States, the Secretary has the

authority under section 8 of the Act to provide assistance to foreign

governments in developing management programs necessary for the

conservation of the southwestern willow flycatcher. This opportunity,

however, does not eliminate, reduce, or change the obligations of

Federal agencies under sections 7 and 9 of the Act, nor does it change

the obligations of citizens under section 9 of the Act.

Issue 10: The goal of the critical habitat designation is

protection of riparian habitat, not protection of the flycatcher.

Service Response: Section 2(b) of the Act states, ``(t)he purposes

of this Act are to provide a means whereby the ecosystems upon which

endangered species and threatened species depend may be conserved, to

provide a program for the conservation of such endangered species and

threatened species, and to take such steps as may be appropriate to

achieve the purposes of the treaties and conventions set forth in

subsection (a) of this section.'' The purpose established in section

2(b) of the Act explicitly recognizes the critical role of ecosystems

and, therefore, habitat, in the protection of endangered species. In so

far as the southwestern willow flycatcher is a neotropical migratory

bird species that is dependent solely on riparian areas to carry out

the portion of its life cycle devoted to breeding, the Service

acknowledges and supports the concept of protecting habitat in order to

conserve the southwestern willow flycatcher. However, the goal of the

critical habitat designation for the southwestern willow flycatcher is

to protect areas essential to the conservation of this species. Other

riparian areas that were not found to be essential to the conservation

of the flycatcher have been omitted from this final rule.

Paperwork Reduction Act

The Service has examined this regulation under the Paperwork

Reduction Act of 1995 and found it to contain no information collection

requirements.

Economic Effects

Section 4(b)(2) of the Act requires the Service to consider

economic and other impacts of designating a particular area as critical

habitat. The Secretary may exclude areas from critical habitat if the

benefits of exclusion outweigh the benefits of including the area in

critical habitat, unless failure to designate a specific area would

result in extinction of the species. The economic analysis assists in

making that determination by examining how the designation may affect

Federal lands, and any non-Federal activity with some Federal

involvement. Activities on private or State-owned lands that do not

involve Federal permits, funding or other Federal actions are not

restricted by the designation of critical habitat.

Economic effects caused by the listing of the flycatcher as

endangered and by other statutes are the baseline upon which critical

habitat is imposed. The analysis examines the incremental economic and

conservation effects of the critical habitat addition. Economic effects

are measured as changes in National income, and regional jobs and

household income.

Fourteen counties in three States are affected by the designation

of critical habitat: Cochise, Pima, Pinal, Yavapai, Gila, Coconino, and

Apache counties in Arizona; Kern, Riverside, San Bernardino, and San

Diego counties in California; and Catron, Grant, and Hidalgo counties

in New Mexico. In total, nearly 964 river km (599 miles) are being

designated as critical for the southwestern willow flycatcher. The

percent of total length of rivers in each State affected by critical

habitat designation is relatively small: 12.4 percent for Arizona; 0.5

percent for California; and 6.6 percent for New Mexico. A high

percentage of public access to rivers and streams exists in all three

States.

By focusing attention on a certain area, designating critical

habitat may result in minor economic benefits provided directly by the

species and indirectly by its habitat, including aesthetic or scenic

beauty, biodiversity, ecosystem and passive use (existence) values.

Quantitative or monetary values for such benefits are not now possible

due to data limitations.

The Forest Service, Bureau of Land Management, Bureau of

Reclamation, Marine Corps, and Army Corps of Engineers manage areas of

proposed critical habitat for the flycatcher. The Corps of Engineers

and other Federal agencies that may be involved with funding or permits

for projects in the critical habitat areas may also be affected.

Because the Service believes that virtually all ``adverse

modification'' calls would also result in ``jeopardy'' calls under

section 7 of the Act, designation of critical habitat for the

flycatcher is not expected to result in any incremental restrictions on

agency activities. Critical habitat designation will, therefore, result

in no additional protection for the flycatcher nor any additional

economic effects beyond those that may have been caused by listing and

by other statutes. Additionally, all previously completed biological

opinions would not require reinitiation to reconsider any critical

habitat designated in this rulemaking.

[[Page 39138]]

If no Federal agency is involved in management, funding, or by

other means of non-Federal areas with critical habitat for the

flycatcher, they are not subject to the section 7 consultation process

for critical habitat.

Economic effects caused by the listing of the flycatcher as

endangered and by other statutes are the baseline upon which critical

habitat is imposed. The analysis examines the incremental economic and

conservation effects of the critical habitat addition. Economic effects

are measured as changes in national income, and regional jobs and

household income. Of the 14 counties where critical habitat is

proposed, 9 would qualify as small businesses. However, because

critical habitat designation is not expected to cause additional

habitat restrictions in any biological opinions issued under the Act,

there are no incremental economic effects attributable to the

designation. A copy of the economic analysis and description of the

exclusion process with supporting documents are included in the

Service's administrative record and may be obtained by contacting the

Service (see ADDRESSES section).

The Service reviewed the proposal to designate critical habitat for

the flycatcher and the assessment of associated benefits and costs.

Because the economic analysis identified no economic benefits from

excluding any of the areas, the Service has made a determination to

designate all of the 18 areas as critical habitat for the southwestern

willow flycatcher.

In addition, the Service has determined that this rulemaking would

not have a significant effect on a substantial number of small entities

in the area, such as businesses, organizations and governmental

jurisdictions, under the Regulatory Flexibility Act of 1980 (5 U.S.C.

601 et seq.). This rulemaking was reviewed under Executive Order 12866.

Unfunded Mandates

The Service has determined and certifies pursuant to the Unfunded

Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not

impose a cost of $100 million or more in any given year on local or

State governments or private entities.

Civil Justice Reform

The Department has determined that these final regulations meet the

applicable standards provided in Sections 3(a) and 3(b)(2) of Executive

Order 12988.

National Environmental Policy Act Compliance

An Environmental Assessment (EA) and a draft Finding of No

Significant Impact (FONSI) have been prepared for the final rule to

designate critical habitat for the southwestern willow flycatcher

(Empidonax traillii extimus), in accordance with 40 CFR 1501.3. The EA

and FONSI are available upon request from the Field Supervisor, Arizona

Ecological Services Field Office (see ADDRESSES above).

References Cited

A complete list of all references cited herein, as well as others,

is available upon request from the Field Supervisor, Arizona Ecological

Services Field Office (see ADDRESSES above).

Author: The primary author of this final rule is Sam Spiller,

Arizona Ecological Services Office (see ADDRESSES above).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations is amended as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

Sec. 17.11 [Amended]

2. Section 17.11 (h) is amended by revising the ``Critical

habitat'' entry for ``Flycatcher, southwestern willow,'' under Birds,

to read ``17.95(b)'.

3. Section 17.95(b) is amended by adding critical habitat for the

Southwestern willow flycatcher (Empidonax traillii extimus), in the

same alphabetical order as this species occurs in Sec. 17.11(h).

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *

(b) Birds.

* * * * *

[[Page 39139]]

Southwestern Willow Flycatcher (Empidonax traillii extimus)

California: Areas of land and water as follows:

1. Santa Ana River, Riverside and San Bernardino Counties: from

Rio Road (T2S, R5W, no surveyed section but at 34 deg. 59' 00''

North, 117 deg. 25' 15'' West) downstream to Prado Flood Control

Basin Dam (T3S, R7W, Section 20). Approximately 25 km (16 miles).

The boundaries include areas within the 100-year floodplain where

thickets of riparian trees and shrubs occur or may become

established as a result of natural floodplain processes or

rehabilitation.

BILLING CODE 4310-55-P

[GRAPHIC] [TIFF OMITTED] TR22JY97.011

[[Page 39140]]

2. Santa Margarita River, San Diego County: from the unnamed

trail at T8S, R3W, Section 34) downstream to northbound Interstate 5

(T11S, R5W, Section 19). Approximately 33 km (20 miles). The

boundaries include areas within the 100-year floodplain where

thickets of riparian trees and shrubs occur or may become

established as a result of natural floodplain processes or

rehabilitation.

3. San Luis Rey River, San Diego County: from Mission Road (T9S,

R2W, Section 27) downstream to northbound Interstate 5 (T11S, R5W,

Section 22). Approximately 39 km (24 miles). The boundaries include

areas within the 100-year floodplain where thickets of riparian

trees and shrubs occur or may become established as a result of

natural floodplain processes or rehabilitation.

4. San Diegito River, San Diego County: from southbound

Interstate 15 (T13S, R2W, no section surveyed, but at 33 deg. 3'

45'' North, 117 deg. 4' 00'' West) downstream to northbound

Interstate 5 (T14S, R4W, Section 12). Approximately 24 km (15

miles). The boundaries include areas within the 100-year floodplain

where thickets of riparian trees and shrubs occur or may become

established as a result of natural floodplain processes or

rehabilitation.

[GRAPHIC] [TIFF OMITTED] TR22JY97.012

[[Page 39141]]

5. San Diego River, San Diego County: from Carlton Hills

Boulevard (T15S, R1W, no section surveyed, but at 32 deg. 50' 45''

North, 117 deg. 59' 30'' West) downstream to the Second San Diego

Aqueduct T15S, R2W, no section surveyed, but at 32 deg. 49' 30''

North, 117 deg. 3' 45'' West). Approximately 8 km (5.5 miles). The

boundaries include areas within the 100-year floodplain where

thickets of riparian trees and shrubs occur or may become

established as a result of natural floodplain processes or

rehabilitation.

6. Tijuana River, San Diego County: from Larsen Field (T19S,

R2W, Section 1) downstream to the windmill at T19S, R2W, Section 4.

Approximately 5.5 km (3.3 miles). The boundaries include areas

within the 100-year floodplain where thickets of riparian trees and

shrubs occur or may become established as a result of natural

floodplain processes or rehabilitation.

[GRAPHIC] [TIFF OMITTED] TR22JY97.013

[[Page 39142]]

7. South Fork of the Kern River, Kern County: from the

confluence of Canebrake Creek (T25S, R36E, Section 30) downstream to

a line running north-south between Lyme Dyke and Lime Point

encompassing the South Fork Wildlife Area at the eastern end of Lake

Isabella (T26S, R34E, Sections 13 and 14). Approximately 26 km (16

miles). The boundaries include areas within the 100-year floodplain

where thickets of riparian trees and shrubs occur or may become

established as a result of natural floodplain processes or

rehabilitation.

[GRAPHIC] [TIFF OMITTED] TR22JY97.014

Arizona: Areas of land and water as follows:

1. San Pedro River, Cochise County: from the Hereford Bridge

(T23S, R22E, Section 9), downstream to eastbound Interstate 10

bridge at Benson (T17S R20E, Section 11). Approximately 87 km (54

miles). The boundaries include areas within the 100-year floodplain

where thickets of riparian trees and shrubs occur or may become

established as a result of natural floodplain processes or

rehabilitation.

2. San Pedro River, Cochise, Pima and Pinal Counties: from the

Gaging Station near Aguaja Canyon (T12S, R18E, Section 19),

downstream to the confluence with the Gila River (T5S, R15E, Section

23). Approximately 106 km (66 miles). The boundaries include areas

within the 100-year floodplain where thickets of riparian trees and

shrubs occur or may become established as a result of natural

floodplain processes or rehabilitation.

[GRAPHIC] [TIFF OMITTED] TR22JY97.015

[[Page 39143]]

3. Verde River, Yavapai and Gila Counties: from Sob Canyon

(T17N, R3E, Section 29) to its inflow into Horseshoe Reservoir (T8N,

R6E, Section 15), including Tavasci Marsh and Ister Flat.

Approximately 145 km (90 miles). The boundaries include areas within

the 100-year floodplain where thickets of riparian trees and shrubs

occur or may become established as a result of natural floodplain

processes or rehabilitation.

4. Wet Beaver Creek, Yavapai County: from the gauging station

upstream of the Beaver Creek Ranger Station (T15N, R6E, Section 24),

downstream to the confluence of Beaver Creek and the Verde River

(T14N, R5E, Section 30). Approximately 32 km (20 miles). The

boundaries include areas within the 100-year floodplain where

thickets of riparian trees and shrubs occur or may become

established as a result of natural floodplain processes or

rehabilitation.

5. West Clear Creek, Yavapai County: from the section line

dividing sections 18 and 17 in T13N, R6E downstream to the

confluence with the Verde River (T13N, R5E, Section 17).

Approximately 14 km (9 miles). The boundaries include areas within

the 100-year floodplain where thickets of riparian trees and shrubs

occur or may become established as a result of natural floodplain

processes or rehabilitation.

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6. Colorado River, Coconino County: from river mile 39 (T35N,

R5E, Section 16) downstream to river mile 71.5 (T31N, R5E Section

8). (River mile 0 = Lee's Ferry). Approximately 52 km (32 miles).

The boundaries include areas within the 100-year floodplain where

thickets of riparian trees and shrubs occur or may become

established as a result of natural floodplain processes or

rehabilitation.

[GRAPHIC] [TIFF OMITTED] TR22JY97.017

7. Little Colorado River, and the West, East, and South Forks of

the Little Colorado River, Apache County: from the diversion ditch

at T8N, R28E, Section 16, upstream to Forest Road 113 on the West

Fork (T7N, R27E, Section 33), upstream to Forest Road 113 on the

East Fork (T6N, R27E, Section 10), and upstream to Joe Baca Draw on

the South Fork (T8N, R28E, Section 34). Approximately 48 km (30

miles). The boundaries include areas within the 100-year floodplain

where thickets of riparian trees and shrubs occur or may become

established as a result of natural floodplain processes or

rehabilitation.

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New Mexico: Areas of land and water as follows:

1. Gila River and the East and West Forks of the Gila River,

Catron and Grant Counties: from El Rincon on the Gila River (T13S,

R14W, S36) upstream to Hell's Hole Canyon on the West Fork of the

Gila River T12S, R15W, S4), and upstream to the confluence of Taylor

Creek and Beaver Creek on the East Fork of the Gila River (T11S,

R12W, S17). Approximately 63 km (39 miles). The boundaries include

areas within the 100-year floodplain where thickets of riparian

trees and shrubs occur or may become established as a result of

natural floodplain processes or rehabilitation.

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2. Gila River, Grant and Hidalgo Counties: from the confluence

of Hidden Pasture Canyon (T14S, R16W, Section 14) downstream to the

confluence of Steeple Rock Canyon (T18S, R21W, Section 33).

Approximately 90 km (56 miles). The boundaries include areas within

the 100-year floodplain where thickets of riparian trees and shrubs

occur or may become established as a result of natural floodplain

processes or rehabilitation.

[GRAPHIC] [TIFF OMITTED] TR22JY97.020

3. San Francisco River, Catron County: from the confluence of

Trail Canyon (T6S, R20W, Section 4) downstream to San Francisco Hot

Springs, near the confluence with Box Canyon (T12S, R20W, Section

23). Approximately 105 km (65 miles). The boundaries include areas

within the 100-year floodplain where thickets of riparian trees and

shrubs occur or may become established as a result of natural

floodplain processes or rehabilitation.

4. Tularosa River and Apache Creek, Catron County: from the

confluence of the Tularosa and San Francisco Rivers (T7S, R19W,

Section 23) upstream, to the source of the Tularosa River near the

continental divide (T4S, R15W, Section 33), and upstream on Apache

Creek to the confluence with Whiskey Creek (T4S, R18W, Section 25).

Approximately 60 km (37 miles). The boundaries include areas within

the 100-year floodplain where thickets of riparian trees and shrubs

occur or may become established as a result of natural floodplain

processes or rehabilitation.

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[[Page 39147]]

Dated: July 16, 1997.

Joseph E. Doddridge,

Acting Deputy Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 97-19209 Filed 7-21-97; 8:45 am]

BILLING CODE 4310-55-C