60706 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17

RIN 1018–AI49

Endangered and Threatened Wildlife 

and Plants; Proposed Designation of 

Critical Habitat for Southwestern 

Willow Flycatcher (Empidonax traillii 

extimus)

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for the 

federally endangered southwestern 

willow flycatcher (Empidonax trailli 

extimus) pursuant to the Endangered 

Species Act of 1973, as amended (Act). 

In developing this proposal, we 

evaluated those lands determined to be 

essential to the conservation of the 

southwestern willow flycatcher to 

ascertain if any specific areas are 

appropriate for exclusion from critical 

habitat pursuant to section 4(b)(2) of the 

Act. On the basis of our evaluation, we 

have determined that the benefits of 

excluding certain approved and pending 

Habitat Conservation Plans (HCPs) and 

lands owned and managed by the 

Department of Defense from critical 

habitat for the southwestern willow 

flycatcher outweighs the benefits of 

their inclusion, and have subsequently 

excluded those lands from this 

proposed designation of critical habitat 

for this species pursuant to section 

4(b)(2) of the Act. As such, we propose 

to designate 376,095 acres (ac) (152,124 

hectares (ha)) [including approximately 

1,556 stream miles (2,508 stream 

kilometers)] of critical habitat which 

includes various stream segments and 

their associated riparian areas, not 

exceeding the 100-year floodplain or 

flood prone area, on a combination of 

Federal, State, Tribal, and private lands 

in southern California (CA), southern 

Nevada (NV), southwestern Utah (UT), 

south-central Colorado (CO), Arizona 

(AZ), and New Mexico (NM). 

We hereby solicit data and comments 

from the public on all aspects of this 

proposal, including data on economic 

and other potential impacts of the 

designation. We are also specifically 

soliciting public comments on the 

appropriateness of excluding lands 

covered by certain approved and 

pending HCPs and Department of 

Defense lands pursuant to section 

4(b)(2) of the Act from this designation. 

In the development of our final 

designation, we will incorporate or 

address any new information received 

during the public comment periods, or 

from our evaluation of the potential 

economic impacts of this proposal. As 

such, we may revise this proposal to 

address new information and/or to 

either exclude additional areas that may 

warrant exclusion pursuant to section 

4(b)(2) or to add in those areas 

determined to be essential to the species 

but excluded from this proposal.

DATES: We will accept comments until 

December 13, 2004. Public hearing 

requests must be received by November 

26, 2004.

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials concerning this proposal by 

any one of several methods: 

1. You may submit written comments 

and information to the Steve Spangle, 

Field Supervisor, U.S. Fish and Wildlife 

Service, AZ Ecological Services Office, 

2321 West Royal Palm Road, Suite 103, 

Phoenix, AZ, 85021. 

2. You may hand-deliver written 

comments and information to our AZ 

Ecological Services Office, or fax your 

comments to 602/242–2513. 

3. You may send your comments by 

electronic mail (e-mail) to 

wiflcomments@fws.gov. For directions 

on how to submit electronic filing of 

comments, see the ‘‘Public Comments 

Solicited’’ section. 

All comments and materials received, 

as well as supporting documentation 

used in preparation of this proposed 

rule, will be available for public 

inspection, by appointment, during 

normal business hours at the above 

address.

FOR FURTHER INFORMATION CONTACT:

Steve Spangle, Field Supervisor, AZ 

Ecological Services Office (telephone 

602/242–0210; facsimile 602/242–2513).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited 

Some of the lands we have identified 

as essential for the conservation of the 

southwestern willow flycatcher are not 

being proposed as critical habitat. The 

following areas essential to the 

conservation of the southwestern 

willow flycatcher are not being 

proposed as critical habitat: ‘‘missioncritical’’ training areas on Marine Corps 

Base, Camp Pendleton (Camp 

Pendleton), and Seal Beach Naval 

Weapons Station, Fallbrook 

Detachment; areas within San Diego 

Multiple Species Conservation Program 

(MSCP); areas in the Draft Western 

Riverside Multiple Species Habitat 

Conservation Plan (MSHCP); and areas 

within the Draft City of Carlsbad Habitat 

Management Plan (MHCP). These areas 

have been excluded because we believe 

the benefit of excluding these areas from 

critical habitat outweighs the benefit of 

including them. We are also proposing 

to exclude areas covered under the 

Roosevelt Lake Habitat Conservation 

Plan from the final designation of 

critical habitat. We specifically solicit 

comment on the inclusion or exclusion 

of such areas and: (a) Whether these 

areas are essential; (b) whether these 

areas warrant exclusion; and (c) the 

basis for not designating these areas as 

critical habitat (section 4(b)(2) of the 

Act);

It is our intent that any final action 

resulting from this proposal will be as 

accurate as possible. Therefore, we 

solicit comments or suggestions from 

the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule. Maps of proposed critical 

habitat are available for viewing by 

appointment during regular business 

hours at the AZ Ecological Services 

Office (see ADDRESSES section) or on the 

Internet at http://arizonaes.fws.gov. On 

the basis of public comment, during the 

development of the final rule we may 

find that areas proposed are not 

essential, are appropriate for exclusion 

under section 4(b)(2), or not appropriate 

for exclusion, and in all of these cases, 

this information would be incorporated 

into the final designation. Final 

management plans that address the 

conservation of the southwestern 

willow flycatcher must be submitted to 

us during the public comment period so 

that we can take them into 

consideration when making our final 

critical habitat determination. We 

particularly seek comments concerning: 

(1) The reasons why any areas should 

or should not be determined to be 

critical habitat as provided by section 4 

of the Act, including whether the 

benefits of designation will outweigh 

the benefits of excluding areas from the 

designation; 

(2) Specific information on the 

distribution and abundance of 

southwestern willow flycatchers and 

their habitat, and which habitat or 

habitat components are essential to the 

conservation of this species and why; 

(3) Comments or information as to 

whether further clarity or specificity of 

the Primary Constituent Elements is 

necessary; 

(4) Land-use designations and current 

or planned activities in or adjacent to 

the areas proposed and their possible 

impacts on proposed critical habitat; 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60707

(5) Any foreseeable economic or other 

potential impacts resulting from the 

proposed designation, including, any 

impacts on small entities; 

(6) Some of the lands we have 

identified as essential for the 

conservation of the southwestern 

willow flycatcher are being considered 

for exclusion from the final designation 

of critical habitat or are not included in 

this proposed designation. We 

specifically solicit comment on the 

possible inclusion or exclusion of such 

areas and: 

(a) Whether these areas are essential; 

(b) whether these, or other areas 

proposed but not specifically addressed 

in this proposal, warrant exclusion; and 

(c) relevant factors that should be 

considered by us when evaluating the 

basis for not designating these areas as 

critical habitat under section 4(b)(2) of 

the Act); and 

(7) This rule proposes to designate 

only lands currently occupied by the 

southwestern willow flycatcher; are 

there unoccupied lands that should be 

included and if so, the basis for such an 

inclusion; 

(8) Table 10 of the Southwestern 

Willow Flycatcher Recovery Plan 

(Chapter IV, page 86) provides a list of 

specific river reaches that the Technical 

Subgroup identified as having 

substantial recovery value and where 

recovery efforts should be focused. Are 

there river reaches identified within this 

list, not being proposed, but that should 

be considered for inclusion in the final 

designation of critical habitat and if so, 

the basis for such an inclusion; 

(9) The focus of our proposal is to 

protect existing occupied habitat. We 

seek comment on the essential nature of 

also designating critical habitat in areas 

that are in proximity to existing 

breeding sites and the basis for such 

inclusion; and 

(10) Whether our approach to 

designate critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments. 

If you wish to comment, you may 

submit your comments and materials 

concerning this proposal by any one of 

several methods. Please submit 

electronic comments in ASCII file 

format and avoid the use of special 

characters or any form of encryption. 

Please also include ‘‘Attn: RIN 1018–

AI–49’’ in your e-mail subject header 

and your name and return address in 

the body of your message. If you do not 

receive a confirmation from the system 

that we have received your Internet 

message, contact us directly by calling 

our AZ Ecological Services at 602/242–

0210. Please note that the e-mail 

address, wiflcomments@fws.gov, will be 

closed at the termination of the public 

comment period. 

Our practice is to make comments, 

including names and addresses of 

respondents, available for public review 

during regular business hours. 

Individual respondents may request that 

we withhold their home addresses from 

the rulemaking record, which we will 

honor to the extent allowable by law. 

There also may be circumstances in 

which we would withhold from the 

rulemaking record a respondent’s 

identity, as allowable by law. If you 

wish us to withhold your name and/or 

address, you must state this 

prominently at the beginning of your 

comments. However, we will not 

consider anonymous comments. We 

will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Comments and materials received will 

be available for public inspection, by 

appointment, during normal business 

hours at the above address. 

Designation Of Critical Habitat 

Provides Little Additional Protection To 

Species 

In 30 years of implementing the ESA, 

the Service has found that the 

designation of statutory critical habitat 

provides little additional protection to 

most listed species, while consuming 

significant amounts of conservation 

resources. The Service’s present system 

for designating critical habitat is driven 

by litigation rather than biology, limits 

our ability to fully evaluate the science 

involved, consumes enormous agency 

resources, and imposes huge social and 

economic costs. The Service believes 

that additional agency discretion would 

allow our focus to return to those 

actions that provide the greatest benefit 

to the species most in need of 

protection. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

While attention to and protection of 

habitat is paramount to successful 

conservation actions, we have 

consistently found that, in most 

circumstances, the designation of 

critical habitat is of little additional 

value for most listed species, yet it 

consumes large amounts of conservation 

resources. Sidle (1987) stated, ‘‘Because 

the ESA can protect species with and 

without critical habitat designation, 

critical habitat designation may be 

redundant to the other consultation 

requirements of section 7.’’

Currently, only 445 species, or 36 

percent, of the 1,244 listed species in 

the (United States) U.S. under the 

jurisdiction of the Service have 

designated critical habitat. We address 

the habitat needs of all 1,244 listed 

species through conservation 

mechanisms such as listing, section 7 

consultations, the section 4 recovery 

planning process, the section 9 

protective prohibitions of unauthorized 

take, section 6 funding to the States, and 

the section 10 incidental take permit 

process. The Service believes that it is 

these measures that may make the 

difference between extinction and 

survival for many species.

We note, however, that a recent 9th 

Circuit judicial opinion, Gifford Pinchot 

Task Force v. United State Fish and 

Wildlife Service, has invalidated the 

Service’s regulation defining destruction 

or adverse modification of critical 

habitat. We are currently reviewing the 

decision to determine what effect it may 

have on the outcome of consultations 

pursuant to section 7 of the Act. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits regarding critical habitat 

designation, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits and to comply with the 

growing number of adverse court orders. 

As a result, the Service’s own proposals 

to undertake conservation actions based 

on biological priorities are significantly 

delayed. 

The accelerated schedules of court 

ordered designations have left the 

Service with almost no ability to 

provide for meaningful additional 

public participation beyond those 

minimally required by the 

Administrative Procedures Act (APA), 

the Act, and the Service’s implementing 

regulations, or to take additional time 

for review of comments and information 

to ensure the rule has addressed all the 

60708 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

pertinent issues before making decisions 

on listing and critical habitat proposals, 

due to the risks associated with 

noncompliance with judicially imposed 

deadlines. This in turn fosters a second 

round of litigation in which those who 

will suffer adverse impacts from these 

decisions challenge them. The cycle of 

litigation appears endless, is very 

expensive, and in the final analysis 

provides little additional protection to 

listed species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA); all 

are part of the cost of critical habitat 

designation. These costs result in 

minimal benefits to the species that are 

not already afforded by the protections 

of the Act enumerated earlier, and they 

directly reduce the funds available for 

direct and tangible conservation actions. 

Status and Distribution 

The southwestern willow flycatcher 

(Empidonax traillii extimus) is a small 

passerine bird, approximately 15 

centimeters (5.75 inches) in length. The 

southwestern willow flycatcher is one of 

four subspecies of the willow flycatcher 

currently recognized (Hubbard 1987; 

Unitt 1987), though Browning (1993) 

suggests a possible fifth subspecies (E. t. 

campestris) in the central and 

midwestern U.S. The willow flycatcher 

subspecies are distinguished primarily 

by subtle differences in color and 

morphology, and by habitat use. Phillips 

(1948) described the southwestern 

subspecies E. t. extimus, and most 

authors have accepted its taxonomic 

status (Aldrich 1951; Bailey and 

Niedrach 1965; Behle and Higgins 1959; 

Hubbard 1987, Phillips et al. 1964; 

Oberholser 1974; Monson and Phillips 

1981; Unitt 1987; Schlorff 1990; 

Browning 1993; USFWS 1995). Recent 

research (Paxton 2000) concluded that 

E. t. extimus is genetically distinct from 

the other willow flycatcher subspecies. 

The southwestern willow flycatcher is 

generally paler than other willow 

flycatcher subspecies, and also differs in 

morphology (e.g., wing formula, bill 

length, and wing/tail ratio) (Unitt 1987 

and 1997; Browning 1993). The willow 

flycatcher is an insectivore generalist 

(USFWS 2002: 26; Drost et al. 2003) 

taking a wide range of invertebrate prey 

including flying, and ground-, and 

vegetation-dwelling insect species of 

terrestrial and aquatic origins (Drost et 

al. 2003). 

The historical breeding range of the 

southwestern willow flycatcher 

included southern CA, southern NV, 

southern UT, AZ, NM, western Texas, 

southwestern CO, and extreme 

northwestern Mexico (Hubbard 1987; 

Unitt 1987; Browning 1993). The 

flycatcher’s current range is similar to 

the historical range, but the quantity of 

suitable habitat within that range is 

much reduced from historical levels 

(USFWS 2002: 7–10). At the end of 

2002, 1,153 southwestern willow 

flycatcher territories were detected 

throughout southern CA, southern NV, 

southern UT, southern CO, AZ, and NM 

(Sogge et al. 2003). Rangewide totals do 

not exist yet for 2003, but the 

information that does exist from AZ 

(Smith et al. 2004) and NM (S.O. 

Williams, NMGFD, e-mail 2004) 

indicates that rangewide numbers have 

not changed much in distribution or 

abundance. Since 2002, the 

southwestern willow flycatcher has not 

been recently detected breeding in 

western Texas (USFWS 2002: 9). Recent 

genetic work by Paxton (2000) verified 

southwestern willow flycatcher genetic 

stock in south-central CO (i.e., San Luis 

Valley) and southwestern UT (e.g., 

Virgin River). The significance of this is 

that it confirms the northern extent of 

the range as E. t. extimus. Overall, 

Paxton (2000) showed that the northern 

boundary for southwestern willow 

flycatcher was generally consistent with 

that proposed by Unitt (1987) and 

Browning (1993). The current range 

described in the Recovery Plan (USFWS 

2002: 8) adopts a range boundary that 

reflects these results. 

The southwestern willow flycatcher is 

a neotropical migrant, spending time 

migrating and breeding in the U.S. from 

April into September. The flycatcher’s 

wintering range includes southern 

Mexico, Central America, and probably 

South America (Stiles and Skutch 1989; 

Howell and Webb 1995; Ridgely and 

Gwynne 1989; Unitt 1997; 

Koronkiewicz et al. 1998; Unitt 1999). 

For an even more thorough discussion 

of the ecology, life history, and 

historical records of the southwestern 

willow flycatcher and most recent 

rangewide population estimates, see 

Chapter II of the Recovery Plan USFWS 

(2002) and Sogge et al. (2003). 

The southwestern willow flycatcher 

currently breeds in relatively dense 

riparian habitats in all or parts of six 

southwestern states, from near sea level 

to over 2000 meters (m) (6100 feet (ft)) 

(USFWS 2002: D–1). The southwestern 

willow flycatcher breeds in riparian 

habitats along rivers, streams, or other 

wetlands, where relatively dense 

growths of trees and shrubs are 

established, near or adjacent to surface 

water or underlain by saturated soil. 

Habitat characteristics such as dominant 

plant species, size and shape of habitat 

patch, canopy structure, vegetation 

height, and vegetation density vary 

widely among sites. Southwestern 

willow flycatchers nest in thickets of 

trees and shrubs ranging in height from 

2 m to 30 m (6 to 98 ft). Lower-stature 

thickets (2–4 m or 6–13 ft tall) tend to 

be found at higher elevation sites, with 

tall-stature habitats at middle and lower 

elevation riparian forests. Nest sites 

typically have dense foliage at least 

from the ground level up to 

approximately 4 m (13 ft) above ground, 

although dense foliage may exist only at 

the shrub level, or as a low dense 

canopy. Nest sites typically have a 

dense canopy. Some of the more 

common tree and shrub species 

currently known to comprise nesting 

habitat include Goodings willow (Salix 

gooddingii), coyote willow (Salix 

exigua) Geyers willow (Salix geyerana), 

arroyo willow (Salix lasiolepis), red 

willow (Salix laevigata), yewleaf willow 

(Salix taxifolia), boxelder (Acer 

negundo), tamarisk (aka saltcedar, 

Tamarix ramosissima), and Russian 

olive (Eleagnus angustifolia) (USFWS 

2002: D–2). Generally, you would not 

find southwestern willow flycatchers 

nesting in an area without willows or 

tamarisk. A more detailed description of 

historical records by state and habitat 

characteristics (plant species, 

composition, structure, biotic vegetation 

classification, patch size and shape, 

water and hydrological conditions, 

importance of the different stages of 

flycatcher habitat, etc.) can be found in 

the Recovery Plan (USFWS 2002: 7–19). 

The Recovery Plan is available on our 

website at http://arizonaes.fws.gov or by 

contacting the AZ Ecological Services 

Office (see ADDRESSES section).

Southwestern willow flycatchers are 

believed to exist and interact as groups 

of metapopulations (Noon and 

Farnsworth 2000; Lamberson et al.

2000; and USFWS 2002: 72). A 

metapopulation is a group of spatially 

disjunct local willow flycatcher 

populations connected to each other by 

immigration and emigration (USFWS 

2002: 72). The distribution of the 

southwestern willow flycatcher varies 

geographically and is most stable where 

many connected sites and/or large 

populations exist (Coastal CA, Gila, Rio 

Grande Recovery Units) (Lamberson et 

al. 2000 and USFWS 2002: 72). A site 

may encompass a discrete breeding 

location, or several (USFWS 2002: 72). 

A territory is defined as a territorial or 

singing male detected during field 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60709

surveys and generally equates to an area 

where both a male and female are 

present (Sogge et al. 1977). For more 

specific information on southwestern 

willow flycatcher presence/absence 

survey protocol, please see Sogge et al.

(1997) and any subsequent updates at 

http://arizonaes.fws.gov or http://

www.usgs.nau.edu/swwf.

Metapopulation persistence or stability 

is more likely to increase by adding 

more sites rather than adding more 

territories to existing sites (Lamberson et 

al. 2000; USFWS 2002: 72; and USFWS 

2003). This strategy distributes birds 

across a greater geographical range, 

minimizes risk of simultaneous 

catastrophic loss, and avoids genetic 

isolation (USFWS 2002: 72). In 

consideration of habitat that is dynamic 

and widely distributed, flycatcher 

metapopulation stability, population 

connectivity, and gene flow can be 

achieved through: Distributing birds 

throughout its range; having birds close 

enough to each other to allow for 

interaction; having large populations; 

having a matrix of smaller sites with 

high connectivity; and establishing 

habitat close to existing breeding sites, 

thereby increasing the chance of 

colonization (USFWS 2002: 75). As the 

population of a site increases, the 

potential to disperse and colonize 

increases; and an increase/decrease in 

one population affects other populations 

because populations are affected by the 

proximity, abundance, and reproductive 

productivity of neighboring populations 

(USFWS 2002: 75). 

The breeding site and patch (a 

‘‘patch’’ is defined as a discrete piece of 

southwestern willow flycatcher habitat) 

fidelity of adult, nestling, breeding, and 

non-breeding southwestern willow 

flycatchers are just beginning to be 

understood (Kenwood and Paxton 2001; 

Koronkiewicz and Sogge 2001; USFWS 

2002: 17). In central AZ at Roosevelt 

Lake (made up of a collection of 

‘‘sites’’), from 1997 through 2000, 66 to 

78 percent of southwestern willow 

flycatchers known to have survived 

from one breeding season to the next 

returned to the same breeding site; 

conversely, 22 to 34 percent of returning 

birds moved to different sites (Luff et al.

2000). A large percentage (75 percent) of 

known surviving 2000 adults returned 

in 2001 to their same breeding site 

(Kenwood and Paxton 2001). All, but 

three surviving birds out of 28, that 

were banded at Roosevelt Lake returned 

to Roosevelt Lake (Kenwood and Paxton 

2001). 

Southwestern willow flycatchers have 

higher site fidelity than nest fidelity and 

can move among sites within drainages 

and between drainages (Kenwood and 

Paxton 2001). Within-drainage 

movements are more common than 

between-drainage movements (Kenwood 

and Paxton 2001). From nearly 300 band 

recoveries, within-drainage movements 

generally ranged from 1.6 to 29 

kilometer (km) (1 to 18 miles (mi), but 

were as long as 40 km (25 mi) (E. 

Paxton, USGS, e-mail). Movements of 

birds between drainages are more rare, 

and the distances are more varied. 

Banding studies have recorded 25 

between-drainage movements ranging 

from 40 km (25 mi) to a single 

movement of 443 km (275 mi) (average 

= 130 km or 81 mi) (E. Paxton, USGS, 

e-mail). Movements have occurred from 

the Basin and Mohave Recovery Unit to 

the Lower Colorado Recovery Unit and 

from the Lower Colorado Recovery Unit 

to the Gila Recovery Unit. 

As a neotropical migrant, migration 

stopover areas for the southwestern 

willow flycatcher, even though not used 

for breeding, may be critically 

important, (i.e., essential) resources 

affecting productivity and survival 

(Sogge et al. 1997b; Yong and Finch 

1997; Johnson and O’Brien 1998; 

McKernan and Braden 1999; and 

USFWS 2002: E–3 and 19). Use of 

riparian habitats along major drainages 

in the Southwest during migration has 

been documented (Sogge et al. 1997; 

Yong and Finch 1997; Johnson and 

O’Brien 1998; McKernan and Braden 

1999; Koronkiewicz et al. 2003). Many 

of the willow flycatchers found 

migrating through riparian areas are 

detected in riparian habitats or patches 

that would be unsuitable for breeding 

(e.g., the vegetation structure is too short 

or sparse, or the patch is too small). On 

these drainages, migrating flycatchers 

use a variety of riparian habitats, 

including ones dominated by native or 

exotic plant species, or mixtures of both 

(USFWS 2002: E–3). Willow flycatchers, 

like most small passerine birds, require 

food-rich stopover areas in order to 

replenish energy reserves and continue 

their northward or southward migration 

(Finch et al. 2000; USFWS 2002: E–3 

and 42). 

The Recovery Plan for the 

southwestern willow flycatcher 

(USFWS 2002) was completed in 2002 

and provides reasonable actions 

believed to be required to recover and 

protect the bird. The Recovery Plan 

(USFWS 2002: 105 to 136) provides the 

strategy for recovering the bird to 

threatened status and to the point where 

delisting is warranted. The Recovery 

Plan states that either one of two criteria 

can be met in order to downlist the 

species to threatened (USFWS 2002: 77–

78). The first relies on reaching a total 

population of 1,500 territories 

strategically distributed among all 

Recovery Units and maintained for three 

years with habitat protections (USFWS 

2002: 77–78). Habitat protections 

include a variety of options such as 

Habitat Conservation Plans, 

conservation easements, and Safe 

Harbor Agreements. The second 

criterion calls for reaching a population 

of 1,950 territories also strategically 

distributed among all Recovery and 

Management Units for five years 

without additional habitat protection 

(USFWS 2002: 77–78). For delisting, the 

Recovery Plan recommends a minimum 

of 1,950 territories must be strategically 

distributed among all Recovery and 

Management Units, and these habitats 

must be protected from threats and 

create/secure sufficient habitat to assure 

maintenance of these populations and/

or habitat for the foreseeable future 

through development and 

implementation of conservation 

management agreements (USFWS 2002: 

79–80). All of the delisting criteria must 

be accomplished and demonstrated 

their effectiveness for a period of 5 years 

(USFWS 2002: 79–80). 

Threats 

The reasons for the decline of the 

southwestern willow flycatcher and 

current threats it faces are numerous, 

complex, and interrelated (USFWS 1995 

and 2002: 33; Marshall and Stoleson 

2000). However, these factors vary in 

severity over the landscape, and at any 

given locale, several are likely present, 

with cumulative and combined effects 

(USFWS 2002: 33).

The primary cause of the flycatcher’s 

decline is loss and modification of 

habitat (USFWS 2002: 33). Historically, 

these habitats have always been 

dynamic (i.e. habitat size and location 

evolve over time), due to natural 

disturbance and regeneration events 

such as floods, fire, and drought 

(USFWS 2002: 33–34). With increasing 

human populations and the related 

industrial, agricultural, and urban 

developments, these habitats have been 

further modified, reduced, and 

destroyed by various mechanisms 

(USFWS 2002: 34). Riparian ecosystems 

have declined from reductions in water 

flow, interruptions in natural 

hydrological events and cycles, physical 

modifications to streams, modification 

of native plant communities by invasion 

of exotic species, and direct removal of 

riparian vegetation (USFWS 2002: 34). 

The major mechanisms causing loss 

and modification of riparian 

ecosystems, increases in exotic plant 

species, and quality of riparian habitat, 

are water-management and land-use 

practices such as dam operations, water 

60710 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

diversion and groundwater pumping, 

river channelization and bank 

stabilization, control of phreatophytes 

(plants whose roots are associated with 

the water table), livestock grazing, 

recreation, fire, agricultural 

development, urbanization, and changes 

in the riparian plant communities. 

(USFWS 2002: 33–42). Wintering 

habitat has also been lost and modified 

for this and other neotropical migratory 

birds (Finch 1991; Sherry and Holmes 

1993) due to heavy agriculture uses and 

a decrease in lowland forest and wet 

areas (habitats in which southwestern 

willow flycatchers overwinter) 

(Koronkiewiez et al. 1998). A more 

detailed discussion of these threats can 

be found in the Recovery Plan (USFWS 

2002: 33–42). 

In a review of historical and 

contemporary records and survey data 

of southwestern willow flycatchers 

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’’ 1,000 pairs, more likely 

500 (Unitt 1987). When the 

southwestern willow flycatcher was 

listed as endangered in 1995, 

approximately 350 territories were 

known to exist (Sogge et al. 2001). At 

the end of the 2002 breeding season, the 

minimum known number of 

southwestern willow flycatcher 

territories was 1,153 (455 in AZ, 238 in 

CA, 60 in CO, 344 in NM, 51 in NV, and 

5 in UT) (Sogge et al. 2003). This 

number reflects the results of the most 

recent survey data. This also does not 

include flycatchers likely to occur on 

some Tribal and private lands. Though 

much suitable habitat remains to be 

surveyed, the rate of discovery of new 

nesting pairs at new locations has 

leveled off (Sogge et al. 2001). Unitt 

(1987) estimated that the total flycatcher 

population may be 500 to 1000 pairs; 

thus, nearly a decade of intense survey 

efforts have found little more than 

slightly above the upper end of Unitt’s 

1987 estimate (USFWS 2002: 29). 

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 

(74 percent of the breeding sites have 

five or fewer territories) (Sogge et al.

2003).

The 1,153 southwestern willow 

flycatcher territories are distributed in a 

large number of very small breeding 

groups, and only a small number of 

relatively large breeding groups 

(USFWS 2002: 41). These isolated 

breeding groups are vulnerable to local 

extirpation from floods, fire, severe 

weather, disease, and shifts in birth/

death rates and sex ratios (USFWS 2002: 

41). Marshall and Stoleson (2000) noted, 

‘‘Even moderate variation in stochastic 

(random) factors (such as floods or fires) 

that might be sustained by larger 

populations can reduce a small 

population below a threshold level from 

which it cannot recover. The persistence 

of small populations depends in part on 

immigration from nearby populations, at 

least in some years (Stacey and Taper 

1992). The small, isolated nature of 

current southwestern willow flycatcher 

populations exacerbates the risk of local 

extirpation by reducing the likelihood of 

immigration among populations.’’ The 

vulnerability of the few relatively large 

populations makes the above threats 

particularly acute (USFWS 2002: 41). 

Previous Federal Actions 

On January 25, 1992, a coalition of 

conservation organizations petitioned 

the Service, requesting listing of the 

southwestern willow flycatcher (E t. 

extimus) as an endangered species, 

under the Act. The petitioners also 

appealed for emergency listing, and 

designation of critical habitat. On 

September 1, 1992, we 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, we published a proposal to list 

southwestern willow flycatcher as 

endangered with critical habitat (58 FR 

39495), and again requested public 

comments and biological data on the 

species. We published a final rule to list 

southwestern willow flycatcher as 

endangered on February 27, 1995 (60 FR 

10694). We deferred the final 

designation of critical habitat for this 

endangered species until July 23, 1995, 

pursuant to 16 U.S.C. 1533(b)(6)(C), 

citing issues identified in public 

comments, new information, and the 

lack of the economic information 

necessary to perform an economic 

analysis. 

Following the final listing, we took no 

immediate action on the proposal to 

designate critical habitat due to a listing 

moratorium and a series of rescissions 

of listing funds imposed by Congress 

from April 1995 to April 1996. On 

March 20, 1997, the U.S. District Court 

of Arizona, in response to a suit by the 

(Southwest) Center for Biological 

Diversity, ordered us to designate 

critical habitat for the southwestern 

willow flycatcher within 120 days. On 

July 22, 1997, we published a final 

critical habitat designation for 

southwestern willow flycatcher along 

964 river km (599 river mi) in AZ, CA, 

and NM (62 FR 39129) (USFWS 1997a). 

We published a correction notice on 

August 20, 1997, on the lateral extent of 

critical habitat (62 FR 44228) (USFWS 

1997b). 

As a result of a suit from the New 

Mexico Cattlegrower’s Association 

initiated in March 1998, on May 11, 

2001, the 10th Circuit Court of Appeals 

vacated (i.e., set aside) critical habitat, 

citing a faulty economic analysis, and 

instructed us to issue a new critical 

habitat designation. On September 30, 

2003, in a complaint brought by the 

Center for Biological Diversity, the U.S. 

District Court of New Mexico instructed 

us to propose critical habitat by 

September 30, 2004, and publish a final 

rule by September 30, 2005. On January 

21, 2004, we published a Notice of 

Intent to prepare an Environmental 

Assessment pursuant to NEPA and 

announced scoping meetings (69 FR 

2940). We requested public comments 

on information about the flycatcher, 

management plans, and the scope of the 

environmental analysis, including 

alternatives that should be analyzed. We 

also held eight public scoping meetings 

in January and February, 2004, in 

Phoenix, AZ; Silver City and 

Albuquerque, NM; Alamosa, CO; Las 

Vegas, NV; and Lake Isabella, Chino, 

and Escondido, CA. 

Critical Habitat 

Section 3(5)(A) of the Act defines 

critical habitat as (i) the specific areas 

within the geographic 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 geographic area occupied by 

a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. ‘‘Conservation’’ means the use 

of all methods and procedures that are 

necessary to bring an endangered or a 

threatened species to the point at which 

listing under the Act is no longer 

necessary. 

The designation of critical habitat 

does not affect land ownership or 

establish a refuge, wilderness, reserve, 

preserve, or other conservation area. It 

does not allow government or public 

access to private lands. Under section 7 

of the Act, Federal agencies must 

consult with the Service on activities 

they undertake, fund, or permit that 

may affect critical habitat and lead to its 

destruction or adverse modification. 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60711

However, the Act prohibits 

unauthorized take of listed species and 

requires consultation for activities that 

may affect them, including habitat 

alterations, regardless of whether 

critical habitat has been designated. 

To be included in a critical habitat 

designation, habitat must be either a 

specific area within the geographic area 

occupied by the species on which are 

found those physical or biological 

features essential to the conservation of 

the species (primary constituent 

elements, as defined at 50 CFR 

424.12(b)) and which may require 

special management considerations or 

protection, or be specific areas outside 

of the geographic area occupied by the 

species which are determined to be 

essential to the conservation of the 

species. Section 3(5)(c) of the Act states 

that not all areas that can be occupied 

by a species should be designated as 

critical habitat unless the Secretary 

determines that all such areas are 

essential to the conservation of the 

species. Our regulations (50 CFR 

424.12(e)) also state that, ‘‘The Secretary 

shall designate as critical habitat areas 

outside the geographic area presently 

occupied by the species only when a 

designation limited to its present range 

would be inadequate to ensure the 

conservation of the species.’’

Regulations at 50 CFR 424.02(j) define 

special management considerations or 

protection to mean any methods or 

procedures useful in protecting the 

physical and biological features of the 

environment for the conservation of 

listed species. When we designate 

critical habitat, we may not have the 

information necessary to identify all 

areas that are essential for the 

conservation of the species. 

Nevertheless, we are required to 

designate those areas we consider to be 

essential, using the best information 

available to us. Accordingly, we do not 

designate critical habitat in areas 

outside the geographic area occupied by 

the species unless the best available 

scientific and commercial data 

demonstrate that unoccupied areas are 

essential for the conservation needs of 

the species. 

Section 4(b)(2) of the Act requires that 

we take into consideration the economic 

impact, effects to national security, and 

any other relevant impact, of specifying 

any particular area as critical habitat. 

We may exclude areas from critical 

habitat designation when the benefits of 

exclusion outweigh the benefits of 

including the areas within critical 

habitat, provided the exclusion will not 

result in extinction of the species. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions we 

make represent the best scientific and 

commercial data available. They require 

our biologists, to the extent consistent 

with the Act and with the use of the best 

scientific and commercial data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, information may be 

obtained from the listing package, 

recovery plans, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties or other entities 

that develop HCPs, scientific status 

surveys and studies, and biological 

assessments. In the absence of 

published data unpublished materials 

and expert opinion or personal 

knowledge is used. 

Areas that support populations, but 

are outside the critical habitat 

designation, are still important to the 

species. Because of that they will 

continue to be subject to conservation 

actions implemented under section 

7(a)(1) of the Act and to the regulatory 

protections afforded by the section 

7(a)(2) jeopardy standard, as determined 

on the basis of the best available 

information at the time of the action. 

Federally funded or permitted projects 

affecting listed species outside their 

designated critical habitat areas may 

still result in jeopardy findings in some 

cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for different approaches. 

Methods 

In determining areas that are essential 

to conserve the southwestern willow 

flycatcher, we used the best scientific 

and commercial data available. We have 

reviewed the overall approach to the 

conservation of the southwestern 

willow flycatcher compiled in the 

Recovery Plan (USFWS 2002) and 

undertaken by local, State, Federal, and 

Tribal agencies, and private and nongovernmental organizations operating 

within the species’ range since its listing 

in 1993. 

We have also reviewed available 

information that pertains to the habitat 

requirements of this species. The 

material included data in reports 

submitted during section 7 

consultations and by biologists holding 

section 10(a)(1)(A) recovery permits; 

research published in peer-reviewed 

articles, agency reports, and databases; 

and regional Geographic Information 

System (GIS) coverages and habitat 

models. 

A variety of sources were used to 

determine territory site information and 

locations. The Recovery Plan (USFWS 

2002), the U.S. Geological Survey 

(USGS 2003) southwestern willow 

flycatcher rangewide database, and 2002 

rangewide status report of the flycatcher 

(Sogge et al. 2003) were the most 

authoritative and complete sources of 

information. The database maintained 

by USGS, Colorado Plateau Research 

Station, Flagstaff, AZ (2003), compiles 

the results of surveys conducted 

throughout the bird’s range. We had 

compiled 2003 data from AZ (Smith et 

al. 2004) and NM (S.O. Williams, 

NMGFD, e-mail). AZ Game and Fish 

Department’s Nongame Branch, in 

Phoenix, AZ, and SWCA, Inc. 

(Koronkiewicz et al. 2003; L. Dickerson, 

SWCA, Inc., e-mail) generated migration 

data for AZ. A summary of known 

historical breeding records can be found 

in the Recovery Plan (USFWS 2002: 8 to 

10). For more detailed information 

regarding the threats to the 

southwestern willow flycatcher and its 

habitat see the Recovery Plan (USFWS 

2002: 33 to 42) and the listing rule 

(February 27, 1995; 60 FR 10694). 

In the development of the proposal of 

critical habitat for the southwestern 

willow flycatcher, we determined which 

lands are essential to the conservation of 

the species by defining the physical and 

biological features essential to the 

species’ conservation and delineating 

the specific areas defined by them. We 

then evaluated those lands determined 

to be essential to ascertain if any 

specific areas are appropriate for 

exclusion from critical habitat pursuant 

to section 4(b)(2) of the Act. On the 

basis of our evaluation, we have 

determined that the benefits of 

excluding certain approved and pending 

HCPs and lands owned and managed by 

the Department of Defense from critical 

habitat for the southwestern willow 

flycatcher outweighs the benefits of 

their inclusion, and have subsequently 

excluded those lands from this 

proposed designation of critical habitat 

for this subspecies pursuant to section 

4(b)(2) of the Act (refer to ‘‘Exclusions 

60712 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

under Section 4(b)(2) of the Act’’ section 

below). The resulting proposal includes 

a subset of lands essential to the 

conservation of the southwestern 

willow flycatcher. 

Maps included with this proposal 

illustrate lands essential to the 

conservation of the southwestern 

willow flycatcher, with lands proposed 

as critical habitat and lands excluded 

from this proposal delineated 

separately. More detailed maps show 

lands determined to be essential to the 

species, which are color coded to clearly 

show those lands proposed and those 

excluded from this proposal, and are 

available from the AZ Ecological 

Services Office (see ADDRESSES section) 

or from the Internet at http://

arizonaes.fws.gov.

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

propose as critical habitat, we consider 

those physical and biological features 

(primary constituent elements) that are 

essential to the conservation of the 

species and that may require special 

management considerations or 

protection. These features include but 

are not limited to: Space for individual 

and population growth and for normal 

behavior; food, water, air, light, 

minerals or other nutritional or 

physiological requirements; cover or 

shelter; sites for germination or seed 

dispersal; and habitats that are protected 

from disturbance or are representative of 

the historical, geographical, and 

ecological distributions of a species. 

The areas proposed for designation as 

critical habitat are designed to provide 

sufficient riparian habitat for breeding, 

non-breeding, territorial, dispersing, and 

migrating, southwestern willow 

flycatchers and to sustain southwestern 

willow flycatchers across their range. 

Although no areas are being proposed as 

critical habitat solely because they serve 

as a migration corridor, rather areas 

proposed serve a variety of functions 

that may include use by southwestern 

willow flycatchers as migration habitat. 

The habitat components essential for 

conservation of the species were 

determined from studies of 

southwestern willow flycatcher 

behavior and habitat use throughout the 

birds range (see ‘‘Background’’ section 

above). Due to the natural history of this 

neotropical migrant and the dynamic 

nature of the riparian environments in 

which they are found (USFWS 2002: 

Chapter II), one or more of the primary 

constituent elements described below 

are found throughout each of the units 

that are being proposed as critical 

habitat. 

In general, all the constituent 

elements of critical habitat for the 

southwestern willow flycatcher are 

found in the riparian ecosystem within 

the 100-year floodplain or flood prone 

area. Southwestern willow flycatchers 

use riparian habitat for feeding, 

sheltering, and cover while breeding 

and migrating. Because riparian 

vegetation is prone to periodic 

disturbance (e.g. flooding), flycatcher 

habitat is ephemeral and its distribution 

is dynamic in nature (USFWS 2002: 17). 

Flycatcher habitat may become 

unsuitable for breeding through 

maturation or disturbance, but suitable 

for migration or foraging (though this 

may be only temporary, and patches 

may cycle back into suitability for 

breeding) (USFWS 2002: 17). Therefore, 

it is not realistic to assume that any 

given breeding habitat patch will remain 

suitable over the long-term, or persist in 

the same location (USFWS 2002: 17). 

Over a five-year period, southwestern 

willow flycatcher habitat can, in 

optimum conditions, germinate, be used 

for migration or foraging, continue to 

grow, and eventually be used for 

nesting. Thus, habitat that is not 

currently suitable for nesting at a 

specific time, but useful for foraging 

and/or migration can be essential to the 

conservation of the flycatcher. Feeding 

sites and migration stopover areas are 

essential components of the flycatcher’s 

survival, productivity, and health, and 

they can also be areas where new 

breeding habitat develops as nesting 

sites are lost or degraded (USFWS 2002: 

42). 

Based on our current knowledge of 

the life history and ecology of the 

southwestern willow flycatcher and the 

relationship of its essential life history 

functions to its habitat, as summarized 

in the ‘‘Status and Threats’’ sections 

above and in more detail in the 

Recovery Plan (USFWS 2002: Chapter 

II), it is important to recognize the 

combined nature of the primary 

constituent elements. Specifically, the 

relationships between river function, 

hydrology, floodplains, aquifers, and 

plant growth, form the environment 

essential to the conservation of the 

southwestern willow flycatcher. 

The natural hydrologic regime and 

supply of (and interaction between) 

surface and subsurface water will be a 

driving factor in the maintenance, 

growth, recycling, and regeneration of 

southwestern willow flycatcher habitat 

(USFWS 2002: 16). As streams reach the 

lowlands, their gradients typically 

flatten and surrounding terrain open 

into broader floodplains (USFWS 2002: 

32). Combine this setting with the 

integrity of stream flow frequency, 

magnitude, duration, and timing (Poff et 

al. 1997), and conditions will occur that 

provide for proper river channel 

configuration, sediment deposition, 

periodic inundation, recharged aquifers, 

lateral channel movement, and elevated 

groundwater tables throughout the 

floodplain that develop flycatcher 

habitat (USFWS 2002: 16). Maintaining 

existing river access to the floodplain 

when overbank flooding occurs is 

integral to allow deposition of fine 

moist soils, water, nutrients, and seeds 

that provide essential material for plant 

germination and growth. An abundance 

and distribution of fine sediments 

extending farther laterally across the 

floodplain and deeper underneath the 

surface retains much more subsurface 

water, which in turn supplies water for 

the development of flycatcher habitat 

and micro-habitat conditions (USFWS 

2002: 16). The interconnected 

interaction between groundwater and 

surface water contributes to the quality 

of riparian community (structure and 

plant species), and will influence the 

germination, density, vigor, 

composition, and ability to regenerate 

and maintain itself (AZ Department of 

Water Resources 1994). 

The specific biological and physical 

features, otherwise referred to as the 

primary constituent elements, essential 

to the conservation of the southwestern 

willow flycatcher are: 

(1) Nesting habitat with trees and 

shrubs that include, but are not limited 

to, willow species and boxelder; 

(2) Dense riparian vegetation with 

thickets of trees and shrubs ranging in 

height from 2 m to 30 m (6 to 98 ft) with 

lower-stature thickets of (2–4 m or 6–13 

ft tall) found at higher elevation riparian 

forests and tall-stature thickets at found 

at middle- and lower-elevation riparian 

forests; 

(3) Areas of dense riparian foliage at 

least from the ground level up to 

approximately 4 m (13 ft) above ground 

or dense foliage only at the shrub level, 

or as a low, dense tree canopy; 

(4) Sites for nesting that contain a 

dense tree and/or shrub canopy (the 

amount of cover provided by tree and 

shrub branches measured from the 

ground) (i.e. a tree or shrub canopy with 

densities ranging from 50 percent to 100 

percent);

(5) Dense patches of riparian forests 

that are interspersed with small 

openings of open water or marsh or 

shorter/sparser vegetation, that creates a 

mosaic that is not uniformly dense. 

Patch size may be as small as 0.1 ha 

(0.25 ac) or as large as 70 ha (175 ac); 

and 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60713

(6) A variety of insect prey 

populations, including but not limited 

to, wasps and bees (Hymenoptera); flies 

(Diptera); beetles (Coleoptera); 

butterflies/moths and caterpillars 

(Lepidoptera); and spittlebugs 

(Homoptera). 

A description of the essential 

environment as it relates to the specific 

primary constituent elements required 

of the southwestern willow flycatcher is 

described below. 

Space for Individual and Population 

Growth and Normal Behavior 

Streams of lower gradient and/or 

more open valleys with a wide/broad 

floodplain are the geological settings 

that support willow flycatcher breeding 

habitat from near sea level to over 2000 

m (6100 ft) in southern CA, southern 

NV, southern UT, southern CO, AZ, and 

NM (USFWS 2002: 7). Lands with moist 

conditions which support riparian plant 

communities are areas that provide 

habitat for the southwestern willow 

flycatcher. Conditions like these 

develop in lower floodplains as well as 

where streams enter impoundments, 

either natural (e.g., beaver ponds) or 

human-made (reservoirs). Low-gradient 

stream conditions may also occur high 

in watersheds, as in the marshy 

mountain meadows supporting 

flycatchers in the headwaters of the 

Little Colorado River near Greer, AZ, or 

the flat-gradient portions of the upper 

Rio Grande in south-central CO and 

northern NM (USFWS 2002: 32). 

Sometimes, the low-gradient wider 

floodplain exists only at the habitat 

patch itself, on streams that are 

generally steeper when viewed on the 

large scale (e.g., percent gradient over 

kilometers or miles) (USFWS 2002). 

Relatively steep, confined streams can 

also support flycatcher habitats (USFWS 

2002: D–13). The San Luis Rey River in 

CA supports a substantial flycatcher 

population, and stands out among 

flycatcher habitats as having a relatively 

high gradient and being confined in a 

fairly narrow, steep-sided valley 

(USFWS 2002: D–13). It is important to 

note that even a steep, confined canyon 

or mountain stream may present local 

conditions where just a portion of an 

acre (ac) or hectare (ha) of flycatcher 

habitat may develop (USFWS 2002; D–

13). Such sites are important 

individually, and in aggregate (USFWS 

2002: D–13). Flycatchers are known to 

occupy very small, isolated habitat 

patches, and may occur in fairly high 

densities within those patches. 

Water 

Flycatcher nesting habitat is largely 

associated with perennial or persistent 

stream flow that can support the 

expanse of vegetation characteristics 

needed by the flycatcher, but can persist 

on intermittent or ephemeral streams 

that retain local conditions favorable to 

riparian vegetation (USFWS 2002: D–

12). The range and variety of stream 

flow conditions (frequency, magnitude, 

duration, and timing) (Poff et al. 1997) 

that will establish and maintain 

flycatcher habitat can arise in different 

types of both regulated and unregulated 

flow regimes throughout its range 

(USFWS 2002: D–12). Also, flow 

conditions that will establish and 

maintain flycatcher habitat can be 

achieved in regulated streams, 

depending on scale of operation and the 

interaction of the primary physical 

characteristics of the landscape (USFWS 

2002: D–12). 

In the southwest, natural hydrological 

conditions at a flycatcher breeding site 

can vary remarkably within a season 

and between years (USFWS 2002: D–

12). At some locations, particularly 

during drier years, water or saturated 

soil is only present early in the breeding 

season (i.e., May and part of June) 

(USFWS 2002: D–12). At other sites, 

vegetation may be immersed in standing 

water during a wet year, but be 

hundreds of meters from surface water 

in dry years (USFWS 2002: D–12). This 

is particularly true of reservoir sites 

such as the Kern River at Lake Isabella, 

CA, Tonto Creek and Salt River at 

Roosevelt Lake, AZ, and the Rio Grande 

near Elephant Butte Reservoir, NM 

(USFWS 2002: D–12). Similarly, where 

a river channel has changed naturally 

(Sferra et al. 1997), there may be a total 

absence of water or visibly saturated soil 

for several years. In such cases, the 

riparian vegetation and any flycatchers 

breeding within it may persist for 

several years (USFWS 2002: D–12). 

In some areas, natural or managed 

hydrologic cycles can create temporary 

flycatcher habitat, but may not be able 

to support it for an extended amount of 

time, or may support varying amounts 

of habitat at different points in the 

cycle. Some dam operations create 

varied situations that allow different 

plant species to thrive when water is 

released below a dam, held in a lake, or 

removed from a lakebed, and 

consequently, varying degrees of 

flycatcher habitat are available as a 

result of dam operations (USFWS 2002: 

33).

The riparian vegetation that 

constitutes southwestern willow 

flycatcher breeding habitat requires 

substantial water (USFWS 2002: D–12). 

Because southwestern willow flycatcher 

breeding habitat is often where there is 

slow moving or still water we speculate 

these slow and still water conditions 

may also be important in influencing 

the production of insect prey base for 

flycatcher food (USFWS 2002: D–12) 

Sites for Germination or Seed Dispersal 

Subsurface hydrologic conditions 

may, in some places (particularly at the 

more arid locations of the southwest), be 

equally important to surface water 

conditions in determining riparian 

vegetation patterns (Lichivar and 

Wakely 2004). Where groundwater 

levels are elevated to the point that 

riparian forest plants can directly access 

those waters it can be an area essential 

for nesting, foraging, migrating, 

nonbreeding, dispersing, or unmated 

southwestern willow flycatchers, and 

we speculate that these elevated 

groundwaters help create moist soil 

conditions believed to be important for 

micro-habitat nesting conditions and 

prey populations (USFWS 2002: 11). 

Depth to groundwater plays an 

important part in the distribution of 

riparian vegetation (AZ Department of 

Water Resources 1994) and 

consequently, southwestern willow 

flycatcher habitat. The greater the depth 

to groundwater below the land surface, 

the less abundant the riparian 

vegetation (AZ Department of Water 

Resources 1994). Localized perched 

aquifers (i.e. a saturated area that sits 

above the main water table) can and do 

support some riparian habitat, but these 

systems are not extensive (AZ 

Department of Water Resources 1994). 

The abundance and distribution of 

fine sediment deposited on floodplains 

is critical for the development, 

abundance, distribution, maintenance, 

and germination of flycatcher habitat, 

and possibly conditions for successful 

breeding (USFWS 2002: 16). In almost 

all cases, moist or saturated soil is 

present at or near breeding sites during 

wet or non-drought years (USFWS 2002: 

11). Thus, fine sediments provide seeds 

beds for flycatcher habitat. The 

saturated soil and adjacent surface water 

may be present early in the breeding 

season, but only damp soil is present by 

late June or early July (Muiznieks et al.

1994; USFWS 2002: D–3). Microhabitat 

features such as temperature and 

humidity, facilitated by moist/saturated 

soil, are believed to play an important 

role where flycatchers are detected and 

nest, their breeding success, and 

availability/abundance of food resources 

(USFWS 2002). However, as in all 

natural systems the amount and 

duration of flooding is dependent on 

natural cycles. 

60714 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

Reproduction and Rearing of Offspring 

Southwestern willow flycatchers nest 

in thickets of trees and shrubs ranging 

in height from 2 m to 30 m (6 to 98 ft) 

(USFWS 2002: D–3). Lower-stature 

thickets (2–4 m or 6–13 ft tall) tend to 

be found at higher elevation sites, with 

tall-stature habitats at middle- and 

lower-elevation riparian forests (USFWS 

2002: D–2). Nest sites typically have 

dense foliage at least from the ground 

level up to approximately 4 m (13 ft) 

above ground, although dense foliage 

may exist only at the shrub level, or as 

a low, dense tree canopy (USFWS 2002: 

D–3). 

Riparian habitat characteristics such 

as dominant plant species, size and 

shape of habitat patches, tree canopy 

structure, vegetation height, and 

vegetation density vary widely among 

sites, but are essential qualities of 

southwestern willow flycatcher 

breeding habitat (USFWS 2002: D–1). 

The accumulating knowledge of 

flycatcher breeding sites reveals 

important areas of similarity which 

constitute the basic concept of what is 

suitable breeding habitat (USFWS 2002: 

D–2). These habitat features are 

generally discussed below. 

Regardless of the plant species 

composition or height, occupied 

breeding sites usually consist of dense 

vegetation in the patch interior, or an 

aggregate of dense patches interspersed 

with openings (USFWS 2002: 11). In 

most cases this dense vegetation occurs 

within the first 3–4 m (10–13 ft) above 

ground (USFWS 2002: 11). These dense 

patches are often interspersed with 

small openings, open water or marsh, or 

shorter/sparser vegetation, creating a 

mosaic that is not uniformly dense 

(USFWS 2002: 11). 

Common tree and shrub species 

currently known to comprise nesting 

habitat include willow species, 

boxelder, tamarisk, and Russian olive 

(USFWS 2002: D–2, 11). Other plant 

species used for nesting have been 

buttonbush (Cephalanthus 

occidentalis), cottonwood, stinging 

nettle (Urtica dioica), alder (Alnus 

rhombifolia, Alnus oblongifolia, Alnus 

tenuifolia), velvet ash (Fraxinus 

velutina), poison hemlock (Conium 

maculatum), blackberry (Rubus 

ursinus), seep willow (Baccharis 

salicifolia, Baccharis glutinosa), oak 

(Quercus agrifolia, Quercus 

chrysolepis), rose (Rosa californica, 

Rosa arizonica, Rosa multiflora), 

sycamore (Platinus wrightii), giant reed 

(Arundo donax), false indigo (Amorpha 

californica), Pacific poison ivy 

(Toxicodendron diversilobum), grape 

(Vitus arizonica), Virginia creeper 

(Parthenocissus quinquefolia), Siberian 

elm (Ulmus pumila), and walnut 

(Juglans hindsii) (USFWS 2002: D–3, 5, 

and 9). Other species used by nesting 

southwestern willow flycatchers may 

become known over time as more 

studies and surveys occur. 

Nest sites typically have a dense tree 

and/or shrub canopy (USFWS 2002: D–

3). Canopy density (the amount of cover 

provided by tree and shrub branches 

measured from the ground) at various 

nest sites ranged from 50 percent to 100 

percent. 

Southwestern willow flycatcher 

breeding habitat can be generally 

organized into three broad habitat 

types—those dominated by native 

vegetation, by exotic vegetation, and 

those with mixed native and exotic 

plants. These broad habitat descriptors 

reflect the fact that southwestern willow 

flycatchers now inhabit riparian habitats 

dominated by both native and nonnative plant species.

The riparian patches used by breeding 

flycatchers vary in size and shape 

(USFWS 2002: D–2). They may be 

relatively dense, linear, contiguous 

stands or irregularly-shaped mosaics of 

dense vegetation with open areas 

(USFWS 2002: D–2 and 11). 

Southwestern willow flycatchers have 

been recorded nesting in patches as 

small as 0.1 ha (0.25 ac) along the Rio 

Grande (Cooper 1997), and as large as 70 

ha (175 ac) in the upper Gila River in 

NM (Cooper 1997). The mean reported 

size of flycatcher breeding patches was 

8.6 ha (21.2 ac). The majority of sites 

were toward the smaller end, as 

evidenced by a median patch size of 1.8 

ha (4.4 ac) (USFWS 2002: 17). Mean 

patch size of breeding sites supporting 

10 or more flycatcher territories was 

24.9 ha (62.2 ac). Aggregations of 

occupied patches within a breeding site 

may create a riparian mosaic as large as 

200 ha (494 ac) or more, such as at the 

Kern River (Whitfield 2002), Roosevelt 

Lake (Paradzick et al. 1999) and Lake 

Mead (McKernan 1997). Based on the 

number of flycatcher territories reported 

in each patch, it required an average of 

1.1 ha (2.7 ac) of dense riparian habitat 

for each territory in the patch (USFWS 

2002: 81, D–11). Because breeding 

patches include areas that are not 

actively defended as territories, this 

does not equate to an average territory 

size. 

Flycatchers often cluster their 

territories into small portions of riparian 

sites (Whitfield and Enos 1996; Paxton 

et al. 1997; Sferra et al. 1997; Sogge et 

al. 1997), and major portions of the site 

may be occupied irregularly or not at 

all. Recent habitat modeling based on 

remote sensing and GIS data has found 

that breeding site occupancy at reservoir 

sites in AZ is influenced by vegetation 

characteristics of habitat adjacent to the 

actual occupied portion of a breeding 

site (Hatten and Paradzick 2003); 

therefore, areas adjacent to breeding 

sites can be an important component of 

a breeding site. How size and shape of 

riparian patches relate to factors such as 

flycatcher site selection and fidelity, 

reproductive success, predation, and 

brood parasitism is unknown (USFWS 

2002: D–11). 

Flycatchers are generally not found 

nesting in confined floodplains (i.e.

those bound within a canyon) (Hatten 

and Paradzick 2003) or where only a 

single narrow strip of riparian 

vegetation less than approximately 10 m 

(33 ft) wide develops (USFWS 2002: D–

11). While riparian vegetation too 

mature, immature, or of lesser quality in 

abundance and breadth may not be used 

for nesting, it can be used by breeders 

for foraging (especially if it extends out 

from larger patches) or during migration 

for foraging, cover, and shelter (Sogge 

and Tibbitts 1994; Sogge and Marshall 

2000). 

Food 

We speculate that willow flycatcher 

food availability may be largely 

influenced by the density and species of 

vegetation, proximity to and presence of 

water, saturated soil levels, and 

microclimate features such as 

temperature and humidity (USFWS 

2002). Flycatchers forage within and 

above the canopy, along the patch edge, 

in openings within the territory, over 

water, and from tall trees as well as 

herbaceous ground cover (Bent 1960; 

McCabe 1991). Willow flycatchers 

employ a ‘‘sit and wait’’ foraging tactic, 

with foraging bouts interspersed with 

longer periods of perching (Prescott and 

Middleton 1988). The willow flycatcher 

is somewhat of an insect generalist 

(USFWS 2002: 26), taking a wide range 

of invertebrate prey including flying, 

and ground-, and vegetation-dwelling 

species of terrestrial and aquatic origins 

(Drost et al. 2003). Wasps and bees 

(Hymenoptera) are common food items, 

as are flies (Diptera), beetles 

(Coleoptera), butterflies/moths and 

caterpillars (Lepidoptera), and 

spittlebugs (Homoptera) (Beal 1912; 

McCabe 1991). Plant foods such as small 

fruits have been reported (Beal 1912; 

Roberts 1932; Imhof 1962), but are not 

a significant food during the breeding 

season (McCabe 1991). Diet studies of 

adult southwestern willow flycatchers 

(Drost et al. 1997; DeLay et al. 1999) 

found a wide range of prey taken. Major 

prey items were small (flying ants) to 

large (dragonflies) flying insects, with 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60715

Hymenoptera, Diptera, and Hemiptera 

(true bugs) comprising half of the prey 

items. Willow flycatchers also took nonflying species, particularly Lepidoptera 

larvae. From an analysis of 

southwestern willow flycatcher diet 

along the South Fork of the Kern River, 

CA (Drost et al. 2003), flycatchers 

consumed a variety of prey from 12 

different insect groups. Willow 

flycatchers have been identified 

targeting seasonal hatchings of aquatic 

insects along the Salt River arm of 

Roosevelt Lake, AZ (E. Paxton, USGS, email). 

Primary Constituent Elements Summary

The discussion above outlines those 

physical and biological features 

essential to the southwestern willow 

flycatcher and presents our rationale as 

to why those features were selected. The 

primary constituent elements described 

above include the essential features of 

the dynamic riverine environment that 

germinates, develops, maintains, and 

regenerates the necessary riparian forest 

and provides food for nesting, foraging, 

non-breeding, unmated, and migrating 

southwestern willow flycatchers. These 

habitat features are essential for the 

flycatcher to maintain metapopulation 

stability, connectivity, gene flow, and 

protect against catastrophic loss for 

disjunct populations distributed across 

a large geographic and elevational range. 

All areas proposed as critical habitat for 

southwestern willow flycatcher are 

within the geographical area occupied 

by the species and contain enough of 

the primary constituent elements to 

allow for the biological functions that 

are essential for its conservation. 

Criteria for Defining Essential Habitat 

Restoring an endangered or 

threatened species to the point where it 

is recovered is a primary goal of our 

Endangered Species Program. To help 

guide the recovery effort, we are 

required to prepare and implement 

recovery plans for all of the listed 

species native to the United States. 

Recovery plans describe actions 

considered necessary for conservation of 

the species, establish criteria for 

downlisting or delisting them, and 

estimate time and cost for implementing 

the recovery measures needed. A final 

recovery plan formalizes the recovery 

strategy for a species, but is not a 

regulatory document (i.e., recovery 

plans are advisory documents because 

there are no specific protections, 

prohibitions, or requirements afforded 

to a species based solely on a recovery 

plan). Critical habitat contributes to the 

overall recovery strategy for listed 

species, but does not by itself achieve 

recovery plan goals. 

To identify areas that are essential to 

the conservation of the southwestern 

willow flycatcher, we first considered 

the Recovery Plan’s strategy, rationale, 

and science behind the conservation of 

the flycatcher and removing the threat 

of extinction (USFWS 2002: 61–95). 

Because of the wide distribution of this 

bird and the dynamic nature of its 

habitat, we considered the southwestern 

willow flycatcher population assuming 

a metapopulation model, gene flow, 

ecological connectivity among disjunct 

populations, and prevention of 

catastrophic losses. In addition, 

information provided during the 

comment periods for this proposed rule 

and the draft economic and draft NEPA 

analyses will be evaluated and 

considered in the development of the 

final designation for southwestern 

willow flycatcher. 

The Recovery Plan identifies 

important factors to consider in 

minimizing the likelihood of extinction: 

(1) The territory is the unit of measure; 

(2) populations should be distributed 

throughout the bird’s range; (3) 

populations should be distributed close 

enough to each other to allow for 

movement among them; (4) large 

populations contribute most to 

metapopulation stability; smaller 

populations can contribute to 

metapopulation stability when arrayed 

in a matrix with high connectivity; (5) 

as the population of a site increases, the 

potential to disperse and colonize 

increases; (6) increase/decrease in one 

population affects other populations; (7) 

some Recovery/Management Units have 

stable metapopulations, others do not; 

(8) maintaining/augmenting existing 

populations is a greater priority than 

establishing new populations; and (9) 

establishing habitat close to existing 

breeding sites increases the chance of 

colonization. 

The Recovery Plan (USFWS 2002) 

outlined a recommended recovery 

strategy for the southwestern willow 

flycatcher. We reviewed and considered 

the pertinent information contained in 

the Recovery Plan (USFWS 2002) in 

developing this proposed critical habitat 

designation because it represents a 

compilation of the best scientific data 

available to us. We are required to base 

listing and critical habitat decisions on 

the best scientific and commercial data 

available (16 U.S.C. 1533(b)(1)(A)). We 

may not delay making our 

determinations until more information 

is available, nor can we be required to 

gather more information before making 

our determination (Southwest Center for 

Biological Diversity v. Babbitt, 215 F. 3d 

58 (D.C. Cir. 2000)). This proposed 

critical habitat designation focuses on 

those Recovery Plan recommendations 

that we believe are important in 

determining areas that are essential to 

the conservation of the species. 

The focus of our proposal is on a 

conservation strategy of protecting large 

populations as well as small 

populations with high connectivity 

(USFWS 2002: 74 to 75). Large 

populations, centrally located, 

contribute the most to metapopulation 

stability, especially if other breeding 

populations are nearby (USFWS 2002: 

74). Large populations persist longer 

than small ones, and produce more 

dispersers capable of emigrating to other 

populations or colonizing new areas 

(USFWS 2002: 74). Smaller populations 

in high connectivity can provide as 

much or more stability than a single 

isolated population with the same 

number of territories because of the 

potential to disperse colonizers 

throughout the network of sites (USFWS 

2002: 75). The approach used to define 

critical habitat areas also supports other 

key central strategies tied to flycatcher 

conservation identified in the Recovery 

Plan (USFWS 2002: 74 to 76) such as: 

(1) Populations should be distributed 

close enough to each other to allow for 

movement, (2) maintaining/augmenting 

existing populations is a greater priority 

than establishing new populations, and 

(3) a population’s increase improves the 

potential to disperse and colonize. 

Because large populations, as well as 

small populations with high 

connectivity, contribute the most to 

metapopulation stability (USFWS 2002: 

74), we identified these areas to help 

guide the delineation of areas essential 

to the conservation of the southwestern 

willow flycatcher, i.e., critical habitat. 

This rule defines a large population as 

a single site or collection of smaller 

connected sites that support 10 or more 

territories. We chose the baseline survey 

period as the time from 1993 to 2003 

(USFWS 2002: 23; Sogge et al. 2003; 

Smith et al. 2004; S.O. Williams, 

NMGFD, e-mail 2004; U.S. Geological 

Survey 2003). This includes all known 

reliable survey information that is 

available to us. We chose 10 or more 

territories to identify a large population 

area because the population viability 

analysis indicates a breeding site 

exhibits greatest long-term stability with 

at least 10 territories (Lamberson et al.

2000; USFWS 2002: 72).

We propose to designate stream 

‘‘segments’’ (which in some places 

include exposed reservoir bottoms) as 

critical habitat for the southwestern 

willow flycatcher. The reaches 

designated provide sufficient critical 

60716 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

habitat to accommodate expected 

flycatcher habitat (nesting, foraging, 

migrating, regenerating, etc.) changes in 

locations or conditions from those that 

exist presently. . The actual riparian 

habitat in these areas is expected to 

expand, contract, or change as a result 

of flooding, drought, inundation, and 

changes in floodplains and river 

channels (USFWS 2002: 18, D–13 to 15) 

that result from current flow 

management practices and priorities. 

Stream segments include breeding sites 

in high connectivity and other essential 

flycatcher habitat components needed to 

conserve the subspecies. Those other 

essential components of flycatcher 

habitat (foraging habitat, habitat for nonbreeding flycatchers, migratory habitat, 

regenerating habitat, streams, elevated 

groundwater tables, moist soils, flying 

insects, and other alluvial floodplain 

habitats, etc.) adjacent to or between 

sites, along with the dynamic process of 

riparian vegetation succession and river 

hydrology, provide current and future 

habitat for the flycatcher which is 

dependent upon vegetation succession. 

As a result, these segments represent the 

boundaries within which flycatcher 

habitat of all types is expected to persist 

over time. We used expert opinion, 

location of territories, habitat models, 

existing dam and river operations, and 

the physical and biological features 

essential to flycatcher conservation to 

determine the boundaries of each river 

segment that would be proposed as 

critical habitat for the subspecies. 

In order to determine the degree of 

connectivity to assign populations, we 

examined the known between-year 

within-drainage movements of 

southwestern willow flycatchers (Luff et 

al. 2000; Kenwood and Paxton 2001; E. 

Paxton, USGS, e-mail). Through 

banding studies since 1997 in central 

AZ and the lower Colorado River in AZ, 

CA, and NV, scientists have re-sighted 

almost 300 banded southwestern willow 

flycatchers that, between years, moved 

within the same drainage (Luff et al.

2000; Kenwood and Paxton 2001; E. 

Paxton, USGS, e-mail). Most recorded 

between-year movements occurred 

within the same drainage from 1.6 to 29 

km (1 and 18 mi), but movements as far 

as 40 km (25 mi) were recorded (Luff et 

al. 2000; Kenwood and Paxton 2001; E. 

Paxton, USGS, e-mail). However, we 

also recognize that birds move between 

drainages (USFWS 2002: 22). Therefore, 

as a result of the known movements of 

banded southwestern willow flycatchers 

and the ability of birds to move long 

distances between drainages, we chose 

a 29 km (18 mi) radius as the distance 

to identify where flycatcher territories 

and their essential habitat is found. As 

a result of defining the degree of 

connectivity to assign populations, we 

identified territories (with a minimum 

of 10 territories) and their essential 

habitat within a 29 km (18 mi) radius of 

each other to include as proposed 

critical habitat. 

However, large populations or small 

populations with high connectivity did 

not exist throughout the entire range of 

the bird (USFWS 2002: 30–33; 84 (Table 

9)). For example, in the Amargosa, Santa 

Cruz, Hassayampa/Agua Fria, San Juan, 

Lower Rio Grande, and Powell 

Flycatcher Management units there are 

no large sites with 10 or more territories, 

nor are any known territories in these 

Units in high connectivity (<40 km/25 

mi) with a large population (≥10 

territories). We are not proposing to 

designate these areas as critical habitat 

because the areas do not meet the 

criteria that we established for being 

essential to the conservation of the 

subspecies.

Therefore, we believe our criteria for 

determining what is essential to the 

conservation of the southwestern 

willow flycatcher represents the best 

approach toward identifying essential 

habitat, there were areas, due to the 

wide diversity and condition of habitat 

across the bird’s range and complexity 

of the flycatchers’ needs, where we 

believed it was necessary to consider 

other factors. These other factors 

included: (1) The unique nature of the 

Coastal CA Recovery Unit because of the 

high connectivity across the entire 

Recovery Unit and fragmented nature of 

the habitat; (2) management units where 

habitat is limited; and (3) key migratory 

habitat. As discussed below, in these 

instances we relied on Recovery Plan 

recommendations and conservation 

goals, habitat needs of the flycatcher, as 

well as expert opinion. 

Unlike the other Recovery Units in 

the flycatcher’s range, flycatcher 

populations in CA exist on a greater 

number of streams, and are almost all 

located in close proximity to one 

another. Because of this, we scrutinized 

our selection of stream segments in 

determining which areas identified 

provided those locations essential for 

the flycatcher and possessing the 

greatest degree of stability. In all four 

Management Units, we ensured that we 

selected the dominant streams with the 

greatest number of territories (Santa 

Ynez, Santa Ana, Santa Margarita and 

San Luis Rey Rivers) in addition to 

many other stream segments to allow for 

population connectivity, 

metapopulation stability, growth, 

dynamic river processes, and protection 

against catastrophic loss. We relied on 

expert opinion, habitat and conservation 

goal recommendations from the 

Recovery Plan, and proximity of 

habitats in order to provide river 

segments with large populations in high 

connectivity throughout the Recovery 

Unit. Consequently, there are stream 

segments in the Coastal CA Recovery 

Unit, specifically in the Santa Clara, 

Santa Ana, and San Diego Management 

units in CA, where lone territories exist 

that fall within the 29 km (18 mi) radius 

of each other, but are not being 

proposed as critical habitat because 

they, when considered within the entire 

range of habitats and stream segments 

selected in the Coastal CA Recovery 

Units, are not believed to be essential 

and/or provide the greatest stability for 

populations of the southwestern willow 

flycatcher. As noted in the ‘‘Public 

Comments Solicited’’ section above, we 

are seeking comments on whether we 

should consider these or other areas for 

inclusion in a final designation of 

critical habitat. 

Lateral Extent 

In order to determine the lateral 

extent of critical habitat for the 

flycatcher, we considered the variety of 

purposes riparian habitat serves the 

southwestern willow flycatcher, the 

dynamic nature of rivers and riparian 

habitat, the relationship between the 

location of rivers, flooding, and riparian 

habitat, and the expected boundaries, 

over time, of these habitats. 

Southwestern willow flycatchers use 

riparian habitat in a variety of 

conditions for breeding, feeding, 

sheltering, cover, dispersal, and 

migration stopover areas. Riparian 

habitat is dependent on the location of 

river channels, floodplain soils, 

subsurface water, floodplain shape, and 

is driven by the wide variety of high, 

medium, and low flow events. Rivers 

can and do move from one side of the 

floodplain to the other. Flooding occurs 

at periodic frequencies that recharge 

aquifers and deposit and moisten fine 

floodplain soils that create seedbeds for 

riparian vegetation germination and 

growth within these boundaries. 

Over time, flycatcher habitat is 

expected to change its location as a 

result of shifting river channels, 

flooding, drought, springs, seeps, and 

other factors such as agricultural runoff, diversions, and modifications of 

riverbeds. The methodology that we 

used to map the river channel and 

associated alluvial areas within the 

riparian zone is intended to provide the 

locations where dynamic river functions 

exist that create and maintain 

southwestern willow flycatcher habitat 

for nesting, feeding, sheltering, cover, 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60717

dispersal, and migration. In those areas 

where lakebeds were included in the 

proposed designation, we identified the 

lakebed using the high water mark. 

In this proposal, we consider the 

riparian zone to be the area surrounding 

the select river segment, which is 

directly influenced by river functions. 

The boundaries of the lateral extent or 

riparian zone (i.e., the surrogate for the 

delineation of the lateral boundaries of 

proposed critical habitat) were derived 

by one of two methods. The area was 

either captured from existing digital 

data sources (listed below) or created 

through expert visual interpretation of 

remotely sensed data (aerial 

photographs and satellite imagery ‘‘also 

listed below). Geographic Information 

System (GIS) technology was utilized 

throughout the lateral extent 

determination. ESRI, Inc. ArcInfo 8.3 

was used to perform all mapping 

functions and image interpretation.

Pre-existing data sources used to 

assist in the process of delineating the 

lateral extent of the riparian zones for 

this proposal included: (1) National 

Wetlands Inventory (NWI) digital data 

from the mid 1980’s, 2001, 2002; (2) 

Federal Emergency Management Agency 

(FEMA) 1995, Q3 100 year flood data; 

(3) U.S. Census Bureau Topologically 

Integrated Geographic Encoding and 

Referencing; and (4) (TIGER) 2000 

digital data. 

Where pre-exiting data may not have 

been available to readily define riparian 

zones, visual interpretation of remotely 

sensed data was used to define the 

lateral extent. Data sources used in this 

included: (1) Terraserver online Digital 

Orthophoto Quarter Quads (DOQQs), 

black & white, 1990’s era and 2001 (3) 

U.S. Geological Survey (USGS) DOQQs 

1997: (3) USGS aerial photographs, 1 

meter, color-balanced, and true color, 

2002; (4) Landsat 5 and Landsat 7 

Thematic Mapper, bands 4, 2, 3, 1990–

2000 (5) Emerge Corp, 1meter, true color 

imagery, 2001; (6) Local Agency 

Partnership, 2 foot, true color, 2000; and 

(7) National Wetlands Inventory aerial 

photographs, 2001–2002. 

We refined all lateral extents for this 

proposed designation by creating 

electronic maps of the lateral extent and 

attributing them according to the 

following riparian sub-classifications. 

Riparian developed areas, as defined 

below, are not included in our proposed 

critical habitat designation since these 

areas do not contain the primary 

constituent elements (see ‘‘Primary 

Constituent Elements’’ section above) 

and, therefore, do not meet the 

definition of critical habitat. 

(1) Riparian Vegetated: This class is 

used to describe areas still in a natural 

state, (i.e., riparian forest, vegetated and 

unvegetated wetlands, water bodies, any 

undeveloped or unmanaged lands 

within the approximate riparian zone). 

(2) Riparian Developed: This class is 

used to describe all developed areas 

(i.e., urban/suburban development, 

agriculture, utilities, mining/extraction). 

Special Management Considerations or 

Protection 

As we undertake the process of 

designating critical habitat for a species, 

we first evaluate lands defined by those 

physical and biological features 

essential to the conservation of the 

species for inclusion in the designation 

pursuant to section 3(5)(A) of the Act. 

We then evaluate lands defined by those 

features to assess whether they may 

require special management 

considerations or protection. As 

discussed throughout this proposed 

rule, the southwestern willow flycatcher 

and its habitat are threatened by a 

multitude of threats such as loss and 

modification of habitat due to 

industrial, agricultural, and urban 

developments. A more detailed 

discussion of threats to the 

southwestern willow flycatcher and its 

habitat can be found in the final listing 

rule (60 FR 10694, February 27, 1995), 

the previous critical habitat designation 

(62 FR 39129, July 22, 1997), and the 

final recovery plan (August 2002). 

The areas proposed for designation as 

critical habitat will require some level of 

management and/or protection to 

address the current and future threats to 

southwestern willow flycatchers and 

maintain the primary constituent 

elements essential to its conservation in 

order to ensure the overall conservation 

of the species. The designation of 

critical habitat does not imply that lands 

outside of critical habitat do not play an 

important role in the conservation of the 

flycatcher. Federal activities that may 

affect those unprotected areas (such as 

groundwater pumping, developments, 

watershed condition, etc.) outside of 

critical habitat are still subject to review 

under section 7 of the Act if they may 

affect the flycatcher. The prohibitions of 

section 9 (e.g., harm, harass, capture) 

also continue to apply both inside and 

outside of designated critical habitat. 

Proposed Critical Habitat Designation 

We are proposing stream segments in 

21 Management Units found in 5 

Recovery Units as critical habitat for the 

southwestern willow flycatcher. These 

stream segments occur in southern CA, 

southern NV, southwestern UT, AZ, 

NM, and south-central CO. The critical 

habitat areas described below constitute 

our best assessment at this time of the 

areas essential for the conservation of 

the southwestern willow flycatcher. In 

order to help further understand the 

location of these proposed stream 

segments, as well as those areas being 

excluded from this proposed 

designation, please see the associated 

maps found within this proposed rule or 

examine them at http://

arizonaes.fws.gov. The 5 Recovery Units 

and associated stream segments are: 

Coastal California Recovery Unit 

(1) Santa Ynez Management Unit—

Santa Ynez River. 

(2) Santa Ana Management Unit—

Bear Creek, Mill Creek, Oak Glen Creek/

Yucaipa Creek/Wilson Creek/San 

Timoteo Wash, Santa Ana River, and 

Waterman Canyon. 

(3) San Diego Management Unit—Las 

Flores Creek/Las Pulgas Creek, San 

Mateo Creek, Christianitos Creek, and 

San Onofre Creek; Santa Margarita River 

and DeLuz Creek; San Luis Rey River 

and Pilgrim Creek; Agua Hedionda 

Creek and Agua Hedionda Lagoon; San 

Dieguito River, Lake Hodges, San Ysabel 

River and Temescal Creek; Temecula 

Creek; Cuyamaca Reservoir; and San 

Diego River. 

Basin and Mohave Recovery Unit in 

California 

(4) Owens Management Unit—Owens 

River. 

(5) Kern Management Unit—South 

Fork Kern River (including upper Lake 

Isabella). 

(6) Mohave Management Unit—Deep 

Creek, Holcomb Creek, Mohave River. 

(7) Salton Management Unit—San 

Filipe Creek. 

Lower Colorado Recovery Unit—

Nevada, California/Arizona border, 

Arizona, Utah 

(8) Little Colorado Management 

Unit—Little Colorado River, West/East/

and South Forks of the Little Colorado 

River, AZ. 

(9) Virgin Management Unit—Virgin 

River, NV/AZ/UT. 

(10) Middle Colorado Management 

Unit—Colorado River, AZ.

(11) Pahranagat Management Unit—

Pahranagat River, Muddy River, NV. 

(12) Bill Williams Management Unit—

Big Sandy River, Bill Williams River, 

Santa Maria River (including upper 

Alamo Lake), AZ. 

(13) Hoover to Parker Management 

Unit—Colorado River, CA/AZ. 

(14) Parker to Southerly International 

Border Management Unit—Colorado 

River, CA/AZ. 

60718 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

Gila Recovery Unit in Arizona and New 

Mexico 

(15) Verde Management Unit—Verde 

River (including Horseshoe Lake), AZ. 

(16) Roosevelt Management Unit—

Salt River and Tonto Creek (including 

Roosevelt Lake), and Pinto Creek, AZ. 

(17) Middle Gila/San Pedro 

Management Unit—Gila River, San 

Pedro River, AZ. 

(18) Upper Gila Management Unit—

San Carlos River in AZ and Gila River 

in AZ/NM. 

Rio Grande Recovery Unit in New 

Mexico and Colorado 

(19) San Luis Valley Management 

Unit—Conejos River, Rio Grande, CO. 

(20) Upper Rio Grande Management 

Unit—Coyote Creek, Rio Grande, Upper 

Rio Grande del Rancho, NM. 

(21) Middle Rio Grande Management 

Unit—Rio Grande, NM. 

Tables 1 through 3 show the lands 

being excluded from proposed critical 

habitat pursuant to section 4(b)(2) of the 

Act (Table 1), a summary of area 

determined to be essential to the 

southwestern willow, area excluded, 

and area proposed as critical habitat by 

State, and the approximate area 

proposed as critical habitat for the 

southwestern willow flycatcher by land 

ownership and State (Table 3). 

Table 1. Approximate area ac (ha)/mi 

(km) excluded by activity from 

proposed critical habitat for the 

southwestern willow flycatcher 

pursuant to section 4(b)(2) of the Act.

AZ CA CO, NM, NV, 

UT 

Habitat Conservation Plans: (Western Riverside County Multiple Species Habitat Conservation Plan; San Diego Multiple Species Conservation Program; Draft City of Carlsbad 

Habitat Management Plan; Roosevelt Lake HCP).

19,525 (7,901)/24 

(39).

6,893 

(2792)/73 

(116) 

None. 

Department of Defense Lands: (The Marine Corps Base, Camp Pendleton; Seal Beach 

Naval Weapons Station, Fallbrook Detachment).

None ..................... 4,020 

(1626)/41 

(69) 

None. 

Table 2. Approximate essential area, 

excluded area, and proposed critical 

habitat area for the southwestern willow 

flycatcher [ac (ha)/mi (km)].

Essential area Excluded area Total proposed 

AZ ............................................................................................................ 138,140 (55,875)/496 

(801) 

19,525 (7,901)/24 (39) 157,665 (63,776)/520 

(840) 

AZ–CA* .................................................................................................... /134 (214) /0 (0) /134 (214) 

CA ............................................................................................................ 60,359 (24,406)/340 

(550) 

10,913 (4,418)/114 

(185) 

71,272 (28,824)/454 

(735) 

CO ............................................................................................................ 68,430 (27,694)/116 

(185) 

0 (0)/0 (0) 68,430 (27,694)/116 

(185) 

NM ........................................................................................................... 63,804 (25,791)/257 

(414) 

0 (0)/0 (0) 63,804 (25,791)/257 

(414) 

NV ............................................................................................................ 11,948 (4,834)/46 (74) 0 (0)/0 (0) 11,948 (4,834)/46 (74) 

UT ............................................................................................................ 2,976 (1,205)/28 (44) 0 (0)/0 (0) 2,976 (1,205)/28 (44) 

Total .................................................................................................. 345,657 (139,805)/

1,417 (2,282) 

30,438 (12,319)/138 

(224) 

376,095 (152,124)/

1,555 (2,506) 

* Due to the fact that the Lower Colorado River acts as the border between the States of AZ and CO we have created a separate table entry in 

order to avoid a duplication of stream mi/km in this area. Additionally, we were not able to provide approximate figures for the size of this area, 

only for the stream length. 

Table 3. Critical habitat proposed for 

the southwestern willow flycatcher by 

land ownership and State in ac (ha).

Federal State Private Other 

AZ .................................................................... 96,615 (39,082) 10,640 (4,304) 50,410 (20,390) 0 (0) 

CA .................................................................... 17,876 (7,224) 11,759 (4,757) 0 (0) 41,637 (16,843) 

CO .................................................................... 7,969 (3,224) 1,425 (579) 59,036 (23,891) 0 (0) 

NM ................................................................... 24,119 (9,751) 246 (99) 39,439 (15,941) 0 (0) 

NV .................................................................... 5,680 (2,298) 160 (66) 4,090 (1,653) 2,018 (817) 

UT .................................................................... 482 (196) 25 (10) 2,469 (999) 0 (0) 

Totals ........................................................ 15,2741 (61,775) 24,255 (9,815) 155,444 (62,874) 43,655 (17,660) 

We provide here general descriptions 

of the essential nature of these areas that 

are consistent and shared by each 

stream segment. There are proposed 

critical habitat river segments in 21 of 

the 29 Management Units and 5 of the 

6 Recovery Units defined in the 

recovery plan for the southwestern 

willow flycatcher (USFWS 2002: 84 to 

85). Placed in the context of the 

subspecies’ wide geographic 

distribution, the disjunct nature of the 

populations, the dynamic aspects of its 

habitat, its endangered status, and its 

recovery goals, each segment is essential 

for the conservation of the southwestern 

willow flycatcher (USFWS 2002). 

Segments are distributed throughout a 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60719

large portion of the subspecies’ range in 

order to help avoid catastrophic losses 

and to provide metapopulation stability, 

gene flow, and connectivity. Each 

segment is essential because it contains 

one or more of the primary constituent 

elements, and as a result, provides 

flycatcher habitat for breeding, feeding, 

sheltering, and migration that 

subsequently provide metapopulation 

stability, gene flow of the subspecies, 

and connectivity between neighboring 

Management Units and Recovery Units 

(USFWS 2002: 74 to 75 and 86 to 92). 

Each segment contributes habitat in 

order to help provide for the numerical 

and habitat-related goals identified in 

the Recovery Plan (USFWS 2002: 77 to 

92). Each segment was identified in the 

Recovery Plan as an area that sustains 

flycatcher habitat (USFWS 2002: D–12 

to 15). The distribution and abundance 

of territories and habitat within each 

segment are expected to shift over time 

as a result of natural disturbance events 

such as flooding that reshape 

floodplains, river channels, and riparian 

habitat (USFWS 2002: 18, D–11 to 13, 

D–15). 

In the development of the proposal of 

critical habitat for the southwestern 

willow flycatcher, we determined which 

lands are essential to the conservation of 

the species by defining the physical and 

biological features essential to the 

species’ conservation and delineating 

the specific areas defined by them. We 

then evaluated those lands determined 

to be essential to ascertain if any 

specific areas are appropriate for 

exclusion from critical habitat pursuant 

to section 4(b)(2) of the Act. On the 

basis of our evaluation, we have 

determined that the benefits of 

excluding certain approved and pending 

HCPs and lands owned and managed by 

the Department of Defense from critical 

habitat for the southwestern willow 

flycatcher outweighs the benefits of 

their inclusion, and have subsequently 

excluded those lands from this 

proposed designation of critical habitat 

for this subspecies pursuant to section 

4(b)(2) of the Act (refer to ‘‘Exclusions 

under Section 4(b)(2) of the Act’’ section 

below). The resulting proposal includes 

a subset of lands essential to the 

conservation of the southwestern 

willow flycatcher. A description of all 

areas determined essential to the 

conservation of the southwestern 

willow flycatcher follows.

Coastal California Recovery Unit 

This unit stretches along the coast of 

southern CA from just north of Point 

Conception south to the Mexico border. 

In 2002, there were a total of 167 known 

flycatcher territories in this Recovery 

Unit (14 percent of the rangewide total) 

(Sogge et al. 2003). A total of 130 

territories (based on 2002 results) have 

been determined to be essential and 

considered in this proposal. In 2001, 

territories were distributed along 15 

relatively small watersheds, mostly in 

the southern third of the Recovery Unit 

(USFWS 2002: 64). In 2001, most 

breeding sites were small (less than five 

territories); the largest populations are 

along the San Luis Rey, Santa Margarita, 

and Santa Ynez Rivers (USFWS 2002: 

64). In 2001, all territories occurred in 

native or native-dominated habitats; 

over 60 percent are on governmentmanaged lands (Federal, State, and/or 

local) (USFWS 2002: 64). This Recovery 

Unit contains the Santa Ynez, Santa 

Ana, and San Diego Management units. 

The stream segments proposed as 

critical habitat are described below in 

their appropriate Management Units. 

Santa Ynez Management Unit 

We are proposing a 39 km (24 mi) 

Santa Ynez River segment in Santa 

Barbara County, CA. This is the only 

stream in the Santa Ynez Management 

Unit to have nesting southwestern 

willow flycatchers and is northernmost 

along coastal CA. While a total of three 

sites are known along the length of the 

Santa Ynez River, our selected stream 

segment holds two breeding sites. A 

high of 28 territories were detected on 

our selected segment in 2000. In 2002, 

four territories were known at one of 

two sites along our selected river 

segment. Southwestern willow 

flycatchers have been detected nesting 

on the Santa Ynez River since 1991. 

Santa Ana Management Unit 

The Santa Ana River is the single 

largest river system in southern CA with 

flycatchers distributed throughout the 

stream from its headwaters and 

tributaries in the San Bernardino 

Mountains in San Bernardino County, 

CA. We are proposing a 84 km (52 mi) 

segment of the Santa Ana River in San 

Bernardino and Riverside Counties and 

other segments with high connectivity 

near its headwaters. In San Bernardino 

County we are proposing 15 km (9 mi) 

of Bear Creek, 30 km (19 mi) of Mill 

Creek, 4 km (3 mi) of Waterman Creek, 

5 km (3 mi) of Wilson Creek, and 12 km 

(8 mi) of Oak Glen Creek. Streams that 

we are proposing that cross both San 

Bernardino and Riverside Counties are 

13 km (8 mi) of San Timoteo Wash and 

6 km (4 mi) of Yucaipa Creek. Seven 

breeding sites along the Santa Ana River 

segment had 15 territories in 2002. In 

2002, there was one breeding site on 

Bear Creek (three territories), three sites 

on Mill Creek (seven territories), one 

site on Waterman Creek (no territories 

in 2002, but a single territory from 1999 

to 2000), one site on Oak Glen Creek 

(three territories), one site on San 

Timoteo Creek (two territories), and no 

sites on Yucaipa or Wilson Creek 

(Yucaipa and Wilson Creeks connect 

San Timoteo and Oak Glen Creeks). In 

2002, these locations together totaled 30 

territories. 

As discussed throughout this rule, 

portions of the Santa Ana Watershed, 

including the Santa Ana River, Yucaipa 

Creek, and Temecula Creek containing 

essential habitat for the southwestern 

willow flycatcher that lie within the 

boundaries of the Western Riverside 

MSHCP are being excluded from 

proposed critical habitat pursuant to 

section 4(b)(2) of the Act. 

San Diego Management Unit 

The longest two stream segments we 

are proposing (San Luis Rey and Santa 

Margarita Rivers) also contain the 

largest numbers of flycatcher territories 

in the San Diego Management Unit. In 

addition to these two streams, we are 

proposing a collection of smaller 

streams within the Unit that have fewer 

numbers of territories, but are in high 

connectivity with each other, and 

portions of unoccupied stream segments 

to provide population stability, growth, 

and connectivity for these populations. 

In 2002, a total of 94 territories were 

detected along the segments proposed 

for critical habitat. 

We are proposing an 8 km (6 mi) 

segment of San Mateo Creek, a 7 km (3 

mi) of Christianitos Creek, a 6 km (4 mi) 

segment of San Onofre Creek, and an 8 

km (5 mi) segment of Las Flores Creek 

along with a short connecting 3 km (2 

mi) segment of Las Pulgas Creek in 

northern San Diego County, CA. Two 

territories were detected at Las Flores/

Las Pulgas Creek in 1995, and two 

territories were detected at San Mateo 

Creek in 1997. No territories have been 

detected on San Onofre or Christianitos 

Creeks. While no territories are known 

from these segments they are 

determined to be essential to the 

conservation of the southwestern 

willow flycatcher because these 

segments fall within a 29 km/18 mi 

radius of a large southwestern willow 

flycatcher population (as explained in 

the ‘‘Criteria for Defining Essential 

Habitat’’ section above). 

We are proposing a 42 km (24 mi) 

segment of the Santa Margarita River 

and 10 km (6 mi) segment of DeLuz 

Creek in San Diego County, CA, at Camp 

Pendleton. Territories have been 

detected on the Santa Magarita River at 

Camp Pendleton since 1994. A high of 

22 territories in 2002 were detected at 

60720 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

the two known breeding sites on the 

Santa Margarita River. No territories are 

known from DeLuz Creek. While no 

territories are known from this segment 

it is determined to be essential to the 

conservation of the southwestern 

willow flycatcher because these 

segments fall within a 29 km/18 mi 

radius of a large southwestern willow 

flycatcher population (as explained in 

the ‘‘Criteria for Defining Essential 

Habitat’’ section above). 

We are proposing an 81 km (50 mile) 

segment of the San Luis Rey River and 

the lowest 10 km (6 mi) segment of 

Pilgrim Creek in San Diego County, CA. 

Territories have been detected since 

1994. A total of seven breeding sites 

exist on the San Luis Rey River 

throughout the selected segment. A high 

of 60 territories were detected at 6 of the 

7 breeding sites in 2002 (a single 

location on the upper San Luis Rey 

River held 50 territories). A single 

breeding site exists on Pilgrim Creek 

where 1 to 2 territories were detected in 

1994, 1995, and 1999.

We are proposing a small 13 km (9 

mi) isolated portion of the Agua 

Hedionada Creek/Lagoon in San Diego 

County, CA. A single territory was 

detected from 1998 to 2000. No 

territories were detected in 2001 or 

2002. 

We are proposing joining segments of 

Santa Ysabel River (25 km/14 mi), and 

San Dieguito River (31 km/19 mi), 

which also includes a connecting 11 km 

(7 mi) section of Lake Hodges and a 15 

km (9 mi) segment of Temescal Creek in 

San Diego County, CA. Three breeding 

sites are known along this connected 

stretch of stream (two on Santa Ysabel 

Creek and a single site on the San 

Dieguito River) with a total of four 

territories in 2002 and a high of five 

detected in 1997. Territories have been 

detected since 1996. No territories are 

known from Lake Hodges or Temescal 

Creek. While no territories are known 

from these segments they are 

determined to be essential to the 

conservation of the southwestern 

willow flycatcher because these 

segments fall within a 29 km/18 mi 

radius of a large southwestern willow 

flycatcher population (as explained in 

the ‘‘Criteria for Defining Essential 

Habitat’’ section above). 

We are proposing a 30 km (18 mi) 

segment of Temecula Creek in San 

Diego and Riverside Counties, CA. Two 

breeding sites are known within this 

segment. A total of four territories were 

detected in 2002. Territories were first 

detected in 1997. 

We are proposing two distinct 

segments of the Sweetwater River, and 

a single segment of the San Diego River 

in San Diego County, CA. A 4 km (2 mi) 

segment of the upper Sweetwater River 

at Cuyamaca Reservoir has had two 

flycatcher territories each time it has 

been surveyed in 1997, 1998, and 2002. 

We are also proposing a 26 km (17 mi) 

segment of the San Diego River where 

no territories have been detected. While 

no territories are known from these 

segments they are determined to be 

essential to the conservation of the 

southwestern willow flycatcher because 

these segments fall within a 29 km/18 

mi radius of a large southwestern 

willow flycatcher population (as 

explained in the ‘‘Criteria for Defining 

Essential Habitat’’ section above). 

As discussed throughout this rule, 

portions of lands noted above within the 

boundaries of the San Diego Multiple 

MSCP contain essential habitat for the 

southwestern willow flycatcher, 

including areas along portions of the 

San Dieguito and San Diego that are 

being excluded from proposed critical 

habitat pursuant to section 4(b)(2) of the 

Act. 

Essential habitat for the southwestern 

willow flycatcher within the boundaries 

of the Marine Corps Base, Camp 

Pendleton occurs along portions of 

Christianitos (7 km/3 mi), San Mateo (8 

km/6 mi), San Onofre (6 km/4 mi), Los 

Flores (8 km/5 mi) Las Pulgas (3 km/2 

mi), and DeLuz Creeks (10 km/6 mi), 

and the Santa Margarita River (42 km/

24 mi); however, these areas are being 

excluded from proposed critical habitat 

pursuant to section 4(b)(2) of the Act. 

Essential habitat for the southwestern 

willow flycatcher occurs on portions of 

the Santa Margarita River located within 

the boundaries of the Seal Beach Naval 

Weapons Station, Fallbrook 

Detachment; however, these areas are 

being excluded from proposed critical 

habitat pursuant to section 4(b)(2) of the 

Act. 

Basin and Mohave Recovery Unit 

This unit is comprised of a broad 

geographic area including the arid 

interior lands of southern CA and a 

small portion of extreme southwestern 

NV. In 2002, there were a total of 69 

known flycatcher territories (7 percent 

of the rangewide total) distributed 

among five widely separated drainages 

(Sogge et al. 2003); 66 of those territories 

are found in this proposal. Almost all 

sites have less than five territories; the 

largest populations occur in the Kern 

and Owens River drainages (USFWS 

2002: 64). As of 2002, all territories were 

in native or native-dominated riparian 

habitats, and approximately 70 percent 

are on privately owned lands (USFWS 

2002: 64). The Recovery Unit contains 

the Owens, Kern, Mohave, Salton, and 

Amargosa Management units. The 

stream segments proposed as critical 

habitat are described below in their 

appropriate Management Units. 

Owens Management Unit 

We are proposing a 110 km (69 mi) 

Owens River segment in Inyo and Mono 

Counties, CA. This is the only stream in 

the Owens Management Unit known to 

have nesting southwestern willow 

flycatchers and most northernmost in 

the Basin and Mohave Recovery Unit 

and in California. Southwestern willow 

flycatchers have been detected nesting 

at five sites along this reach of the 

Owens River since 1999. In 2002, a high 

of 28 territories at all 5 sites were 

detected within this stream segment. 

Kern Management Unit 

We are proposing a 20 km (13 mi) 

segment of the South Fork of the Kern 

River in Kern County, CA, including the 

upper portion of Lake Isabella. This is 

the only stream segment in the Kern 

Management Unit known to have 

nesting southwestern willow 

flycatchers. Southwestern willow 

flycatchers have been detected nesting 

at two sites along this reach of the Kern 

River since 1993. In 1997, a high of 37 

territories were detected at a single 

location. In 2002, 23 territories at both 

sites were detected within this stream 

segment. 

Mohave Management Unit 

We are proposing a 17 km (10 mi) 

portion of the Mojave River (including 

Mohave River Forks Reservoir), 20 km 

(12 mile) section of Holcomb Creek, and 

21 km (12 mile) section of Deep Creek 

in San Bernardino County, CA, near the 

Town of Victorville. These stream 

segments, within the Mohave 

Management Unit, are known to have 

nesting southwestern willow 

flycatchers. Southwestern willow 

flycatchers have been detected nesting 

at three sites along this reach of the 

Mojave River, one site on Holcomb 

Creek, and no sites on Deep Creek since 

1995. Deep Creek connects Holcomb 

Creek with the Mohave Forks Reservoir. 

In 2002, a high of 13 territories were 

detected at all 5 sites within these 

segments. 

Salton Management Unit

We are proposing an 11 km (7 mi) 

portion of San Filipe Creek in San 

Bernardino County, CA. This is the only 

stream in the Salton Management Unit 

known to have nesting southwestern 

willow flycatchers. Southwestern 

willow flycatchers have been detected 

nesting at a single site since 1998. In 

1998 and 1999, a high of four territories 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60721

were detected on this stream segment. 

In 2002, two territories were detected at 

this site. This stream and the territories 

on it have high connectivity with other 

smaller populations in the adjacent San 

Luis Rey Management Unit in the 

Coastal CA Recovery Unit raising the 

collective population above 10 

territories. 

Lower Colorado Recovery Unit 

This is a geographically large and 

ecologically diverse Recovery Unit, 

encompassing the Colorado River and 

its major tributaries from the high 

elevation streams in White Mountains of 

East/Central Arizona to the main stem 

Colorado River through the Grand 

Canyon downstream through the arid 

lands along the lower Colorado River 

downstream to the Mexico border 

(USFWS 2002: 64). In 2002, despite its 

size, the Unit had only 127 known 

flycatcher territories (11 percent of the 

rangewide total), most of which occur 

away from the main-stem Colorado 

River (Sogge et al. 2003). One-hundred 

eighteen territories recorded from the 

most recent data in 2002 and 2003 are 

within the proposed river segments. In 

2001, most sites included less than 5 

territories; the largest populations (most 

of which are less than 10 territories) are 

found on the Bill Williams, Virgin, and 

Pahranagat River drainages (USFWS 

2002: 64). Approximately 69 percent of 

territories are found on governmentmanaged lands, and 8 percent are on 

Tribal lands (USFWS 2002: 64). Habitat 

characteristics range from purely native 

(including high-elevation and lowelevation willow) to exotic (primarily 

tamarisk) dominated stands (USFWS 

2002: 64). This Recovery Unit contains 

the Little Colorado, Middle Colorado, 

Virgin, Pahranagat, Bill Williams, 

Hoover to Parker, and Parker to 

Southerly International Border 

Management units. 

Little Colorado Management Unit 

We are proposing a segment of the 

Little Colorado River and portions of the 

East, West, and South Forks of the Little 

Colorado River. The 17 km (10 mi) 

segment of the Little Colorado River 

segment occurs in Apache County, near 

the Town of Greer. The 7 km (4 mi) 

segment of the South Fork of the Little 

Colorado River extends from Joe Baca 

Draw downstream to its confluence with 

the Little Colorado River. The 11 km (8 

mi) segment of the East Fork of the Little 

Colorado River extends from Forest 

Service Road 113 to its confluence with 

the West Fork of the Little Colorado 

River. The 7 km (5 mi) section of the 

West Fork of the Little Colorado goes 

from Forest Service Road 113 

downstream to the Diversion Ditch. 

Each segment is in Apache County, AZ. 

Southwestern willow flycatchers have 

been detected nesting at single sites on 

both the Little Colorado and West Fork 

of the Little Colorado since 1993. In 

1996, a high of 11 territories were 

detected at both locations on the West 

Fork and Little Colorado Rivers. In 

2003, two territories were detected on 

these segments. No territories have been 

detected on the South or East Forks of 

the Little Colorado River. While no 

territories are known from these 

segments they are determined to be 

essential to the conservation of the 

southwestern willow flycatcher because 

these segments fall within a 29 km/18 

mi radius of a large southwestern 

willow flycatcher population (as 

explained in the ‘‘Criteria for Defining 

Essential Habitat’’ section above). 

Middle Colorado Management Unit 

We determined that the 57 km (35 mi) 

Colorado River segment in Mohave 

County, AZ, above Lake Mead including 

a 2 km (1 mi) portion of Lake Mead is 

essential to the conservation of the 

southwestern willow flycatcher. This 

segment extends from Colorado River 

Mile 243 downstream to River Mile 280 

at Pierce Ferry, including a small 

portion of upper Lake Mead. 

Southwestern willow flycatchers have 

been detected nesting at 14 sites along 

this reach of the Colorado River since 

1993. In 1998, a high of 15 territories at 

8 breeding sites were detected within 

this segment. In 2003, no territories 

were detected on this stream segment. 

Virgin Management Unit 

We are proposing a contiguous 

segment of the Virgin River in UT, AZ, 

and NV, plus a single detached segment 

of the Virgin River in UT. The larger 

segment extends for 147 km (92 mi) 

from the Washington Field Diversion 

Impoundment in Washington County, 

UT, downstream through the Town of 

Littlefield, AZ, and into Nevada to 

Colorado River mile 280 at the upper 

end of Lake Mead in Clark County, NV. 

This larger segment exists for 44 km (28 

mi) in UT, approximately 56 km (35 mi) 

through AZ, and 47 km (29 mi) in NV. 

The Virgin River is the only stream 

within this Management Unit known to 

have nesting southwestern willow 

flycatchers. Southwestern willow 

flycatchers have been detected nesting 

in 1995 at three sites in NV segment, a 

single site in AZ since 2001, and two 

sites in UT since 1995. In 2001, a high 

of 40 territories were detected at 5 of the 

6 sites within the proposed designation 

(36 in NV, 1 in AZ, and 3 in UT). In 

2002, 20 territories total were detected 

at 4 of the 6 sites. 

Pahranagat Management Unit 

We are proposing two segments along 

the Pahranagat River in Lincoln County, 

NV, which include the Pahranagat 

National Wildlife Area and the Key 

Pittman Wildlife Area, and a segment of 

the Muddy River in Clark County, NV, 

on the Overton Wildlife Area. The two 

segments of the Pahranagat River are 6 

km (3 mi) and 18 km (12 mi) long, while 

the Muddy River segment is 3 km (2 mi) 

long. The boundaries for each segment 

are the Pahranagat National Wildlife 

Refuge, the Key Pittman State Wildlife 

Area, and the Overton State Wildlife 

Area. Southwestern willow flycatchers 

have been detected nesting since 1997 at 

a single location on each Pahranagat 

River segment and the Muddy River 

segment. The Muddy River segment is 

in high connectivity to the Virgin River 

segment in the Virgin Management Unit. 

In 2001, a high of 28 territories were 

detected at the three breeding sites on 

the proposed segments; 19 territories 

were detected at the same three sites in 

2002. 

Bill Williams Management Unit

We are proposing a lower Bill 

Williams River segment, a segment on 

upper Alamo Lake (includes the Big 

Sandy, Santa Maria, Bill Williams River 

confluence), and a section of the Big 

Sandy River through the Town of 

Wikieup (including a small segment of 

Trout Creek). We are proposing the 

lowest 21 km (13 mi) of the Bill 

Williams River from the upper end of 

Planet Ranch downstream through the 

Bill Williams National Wildlife Refuge 

to the confluence with Lake Havasu at 

the Colorado River in Mohave/La Paz 

County, AZ. We are proposing a 22 km 

(15 mi) segment of the Bill Williams, 

Santa Maria and Big Sandy Rivers at 

their confluence at upper Alamo Lake in 

La Paz County, AZ. We are proposing a 

61 km (38 mi) segment of the Big Sandy 

River from Cove Sor Wash confluence 

downstream through the Town of 

Wikieup to Groom Peak Wash. 

Southwestern willow flycatchers have 

been detected nesting on the lower Bill 

Williams and Big Sandy Rivers since 

1994, and on upper Alamo Lake since 

1996. In 2003, a high of 53 territories 

were detected at 6 sites with 32 being 

within the high water mark of Alamo 

Lake. 

Hoover to Parker Management Unit 

We are proposing a 107 km (67 mi) 

segment along the Colorado River from 

Davis Dam to Parker Dam, including 

Lake Havasu and Topock Marsh of The 

60722 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

Havasu National Wildlife Refuge in 

Mohave and La Paz County, AZ, and 

San Bernardino County, CA. A total of 

six breeding sites have been detected 

along this stretch of river since 1995. 

The largest and most consistent 

breeding site is at Topock Marsh, where 

since 1997, 12 to 20 territories have 

been detected. The 21 territories 

detected in this Management Unit in 

2002 (20 at Topock Marsh) is the 

greatest number of territories detected 

during a single year. The other five 

breeding sites have mostly held one to 

three territories in the late 1990s. In 

2003, 244 migrant willow flycatchers 

were detected between Davis Dam and 

the Southerly International Border 

(Koronkiewicz et al. 2003). These lower 

Colorado River segments are the most 

heavily used known locations for 

migrating southwestern willow 

flycatchers. 

Parker to Southerly International Border 

We are proposing two segments along 

the Colorado River. One segment is 

approximately 27 km (17 mi) in La Paz 

and San Bernardino Counties, 

California, and the second segment is 

approximately 80 km (50 mi) in La Paz 

and Yuma, Counties, Arizona, and 

Imperial California. A total of 13 

breeding sites have been detected along 

this stretch of river since 1995. In 2003, 

244 migrant willow flycatchers were 

detected between Davis Dam and the 

Southerly International Border 

(Koronkiewicz et al. 2003), and as of 

May 28, 2004, approximately 240 

migrant willow flycatchers were 

detected, mostly in this portion of the 

Colorado River (L. Dickerson, SWCA 

Inc., e-mail). While migrant willow 

flycatchers have been detected on many 

streams (USFWS 2002: 19 and ES 2 to 

3), and migrations habitat is an essential 

component of each proposed segment, 

the lower Colorado River segment is one 

of the most heavily known used 

migratory corridors, and a result, this 

segment has additional value. A high of 

13 territories at 10 sites were detected 

in 1996. In 2002, a total of three 

territories at two sites were detected, 

and in 2003, two territories at two sites 

were found. 

Gila Recovery Unit 

This unit includes the Gila River 

watershed, from its headwaters in 

southwestern NM downstream to near 

the confluence with the Colorado River 

(USFWS 2002: 65). In 2002, the 588 

known flycatcher territories (51 percent 

of the rangewide total) were distributed 

primarily on the Gila and lower San 

Pedro Rivers (Sogge et al. 2003). A total 

of 505 territories were detected in 2003 

within the segments proposed in this 

Management Unit. Many sites are small 

(less than 5 territories), but sections of 

the upper Gila River, and lower San 

Pedro River (including its confluence 

with the Gila River), and the Tonto 

Creek and Salt River inflows within the 

high water mark of Roosevelt Lake 

support the largest sites known within 

the subspecies’ range. In 2001, private 

lands hosted 50 percent of the 

territories, including one of the largest 

known flycatcher populations, in the 

Cliff-Gila Valley, NM (USFWS 2002: 

65). Approximately 50 percent of the 

territories are on government-managed 

lands (USFWS 2002: 65). Although in 

2001, 58 percent of territories were in 

native-dominated habitats, flycatchers 

in this Recovery Unit make extensive 

use of exotic (77 territories) or exoticdominated (108 territories) habitats 

(primarily tamarisk). This Recovery Unit 

contains the Verde, Hassayampa/Agua 

Fria, Roosevelt, San Francisco, Upper 

Gila, Middle Gila/San Pedro, and Santa 

Cruz Management units. 

Verde Management Unit

We are proposing three different 

segments of the Verde River totaling 129 

km (80 mi). The upper 58 km (36 mi) 

Verde River segment occurs throughout 

the Verde Valley in Yavapai County, 

AZ. The 63 km (39 mi) middle Verde 

River segment begins at the East Verde/

Verde River confluence in Yavapai 

County on the Tonto National Forest 

and extends downstream to the USGS 

gauging station located 7 km (4.5 mi) 

below Horseshoe Dam in Maricopa 

County. The lower 8 km (5 mi) segment 

of the Verde River is located in 

Maricopa County, Arizona. 

Southwestern willow flycatchers have 

been detected at six breeding sites on 

the upper two segments since 1993. In 

2003, a high of 13 territories were 

detected at 2 sites within the Middle 

Verde River section (11 were found at 

Horseshoe Reservoir). In 1997, 10 

territories were the highest recorded on 

the upper Verde River segment. While 

no territories are known from these 

segments they are determined to be 

essential to the conservation of the 

southwestern willow flycatcher because 

these segments fall within a 29 km/18 

mi radius of a large southwestern 

willow flycatcher population (as 

explained in the ‘‘Criteria for Defining 

Essential Habitat’’ section above). 

Roosevelt Management Unit 

We are proposing a contiguous 

segment of lower Tonto Creek, 

Roosevelt Lake, and the Salt River, and 

a segment of Pinto Creek in Gila and 

Pinal Counties, AZ. A 34 km (21 mi) 

segment of Tonto Creek begins at the 

confluence of Tonto Creek and Rye 

Creek and extends to the high water 

mark of Roosevelt Lake in Gila County, 

AZ. The 33 km (20 mi) segment of the 

Salt River extends from the Cherry 

Creek confluence on the Tonto National 

Forest and travels downstream to the 

high water mark of Roosevelt Lake in 

Gila County AZ. Joining the Tonto Creek 

and Salt River segments is the 39 km (24 

mi) lakebed at Roosevelt Lake 

(comprised of the Tonto Creek and Salt 

River confluence) in Gila County, AZ. 

Additionally, we are proposing a 

segment of Pinto Creek that extends for 

34 km (21 mi) from its confluence with 

Haunted Canyon downstream to 

Roosevelt Lake in Gila and Pinal 

Counties, AZ. Flycatchers have been 

detected nesting at Roosevelt Lake, 

along the Tonto Creek and Salt River 

inflows since 1993. In 2002, a high of 

146 territories from 5 sites were 

detected on the stream segments 

proposed within this Management Unit. 

In 2003, 133 territories from 6 sites were 

detected in this Management Unit; all 

but 1 territory was in the habitat 

between the lake and high water mark 

of Roosevelt Lake. The number of 

territories found at Roosevelt Lake 

represents one of the highest 

concentrations of southwestern willow 

flycatchers known and over 10 percent 

of the entire subspecies. Flycatcher 

habitat is expected to follow the lake’s 

edge as water recedes or increases. No 

territories have been detected yet on 

Pinto Creek. While no territories are 

known from this segment it is 

determined to be essential to the 

conservation of the southwestern 

willow flycatcher because these 

segments fall within a 29 km/18 mi 

radius of a large southwestern willow 

flycatcher population (as explained in 

the ‘‘Criteria for Defining Essential 

Habitat’’ section above). 

Incidental take expected to result 

from the operation of Roosevelt Dam is 

covered under a 10(a)(1)(B) permit and 

an operative HCP. Dam operations are 

expected to inundate habitat 

periodically, but over time, operations 

are expected to allow varying amounts 

of flycatcher habitat to persist (USFWS 

2003). ERO (2002) estimated that an 

average of 121 to 162 ha (300 to 400 ac) 

of suitable habitat (thus about 61 to 81 

ha/150 to 200 ac of occupied habitat) 

would be present during full operation 

of the dam over the next 50 years. These 

61 to 81 ha (150 to 200 ac) would 

support 45 to 90 southwestern willow 

flycatcher territories (USFWS 2003). 

Although short-term impacts from 

inundation could be severe, the 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60723

Flycatcher Recovery Team believed that 

such events were compatible with 

recovery, and the target number of 

territories and acres of suitable habitat 

recommended for reclassification could 

still be achieved in most years despite 

continued full operation of Roosevelt 

Dam (USFWS 2003). This is the only 

Management Unit where recovery goals 

were established smaller than existing 

numbers due to expected increase in 

lake elevation. As discussed in the 

‘‘Relationship of Critical Habitat to 

Approved Habitat Conservation Plans 

(HCPs)’’ section of this rule, we are 

proposing to exclude Roosevelt Lake 

from the final designation of critical 

habitat. 

Middle Gila/San Pedro Management 

Unit 

We are proposing a segment of the 

middle and lower San Pedro River, and 

a segment of the Gila River near the San 

Pedro/Gila River confluence in Pinal, 

Pima, and Cochise Counties, AZ. The 

middle/lower San Pedro River segment 

extends for 110 km (68 mi) to the Gila 

River. The Gila River segment begins at 

Dripping Springs Wash and extends for 

80 km (50 mi) downstream past the San 

Pedro/Gila confluence and Towns of 

Winkleman and Kelvin to Ashehurst 

Hayden Diversion Dam near the Town 

of Cochran in Gila and Pinal Counties, 

AZ. Flycatchers have been detected 

nesting along these segments since 

1993. In 2003, a high of 167 territories 

from 19 sites (12 on San Pedro and 7 on 

the Gila) were detected on the stream 

segments we are proposing within this 

Management Unit. Degradation of 

habitat quality has dropped the number 

of territories on the Gila River segment 

from 68 in 1999 to 26 in 2003. This 

collection of territories along these two 

streams, along with territories found in 

the Roosevelt Management Unit 

(n=300), comprise about 25 percent of 

the entire subspecies. 

Upper Gila Management Unit 

We are proposing three segments of 

the upper Gila River in NM and AZ. The 

upper 119 km (74 mi) segment of the 

Gila River extends from Turkey Creek 

on the Gila National Forest downstream 

through the Cliff/Gila Valley and 

Hidalgo and Grant Counties, NM to the 

Town of Duncan in Greenlee County, 

AZ. The second segment extends from 

the upper end of Earven Flat in AZ 

above the Town of Safford and extends 

for 102 km (63 mi) through the Gila, 

Graham, and Pinal Counties, the Safford 

Valley, and into the San Carlos Apache 

Indian Reservation. We are also 

proposing a 6 km (3 mi) segment of the 

San Carlos Reservoir from 

approximately 1.3 mi west of the Pinal/

Graham County line to Coolidge Dam. 

Southwestern willow flycatchers have 

been detected nesting along these 

stream segments in the Upper Gila 

Management Unit since 1993. A total of 

16 breeding sites (7 in NM, and 9 in AZ) 

are known in the Gila Management 

Unit. In 1999, a high of 262 territories 

at 8 sites were detected. A single site, 

the U-Bar ranch in the Cliff/Gila Valley, 

had 209 territories. In 2003, 191 

territories at 8 sites were detected on the 

Gila River stream segments we are 

proposing within this Management 

Unit. The U-Bar ranch had 123 of these 

territories in 2003, but many are found 

outside of the flood-prone area, offchannel in habitat along irrigated 

ditches. The single site in the Cliff/Gila 

Valley, along with Roosevelt Lake, and 

the collection of territories in the 

Middle Gila/San Pedro Management 

Unit, comprise nearly 40 percent of the 

entire subspecies. 

Rio Grande Recovery Unit 

This unit encompasses the Rio Grande 

watershed from its headwaters in 

southwestern CO downstream to the 

Pecos River confluence in southwestern 

Texas, although no flycatcher breeding 

sites are currently known along the Rio 

Grande in Texas. Also included is the 

Pecos River watershed in NM and Texas 

(where no breeding sites are known) and 

one site on Coyote Creek, in the upper 

Canadian River watershed. In 2002, the 

majority of the 197 territories (17 

percent of the rangewide total) were 

found along the Rio Grande itself (Sogge 

et al. 2003). From 2002 totals, 162 

territories were found within the 

proposed river segments. In 2001, only 

three sites contained more than 5 

territories (USFWS 2002: 65). Most sites 

are in native-dominated habitats; exoticdominated sites include primarily 

tamarisk or Russian olive (USFWS 2002: 

65). In 2001, of 56 nests that have been 

described in the middle and lower Rio 

Grande in NM, 43 (77 percent) used 

tamarisk as the nest substrate (USFWS 

2002: 65). In 2001, government-managed 

lands accounted for 63 percent of the 

territories in this unit; Tribal lands 

supported an additional 23 percent 

(USFWS 2002). This Recovery Unit 

contains the San Luis Valley, Upper Rio 

Grande, Middle Rio Grande, and Lower 

Rio Grande Management Units.

San Luis Valley Management Unit 

We are proposing a segment of the 

upper Rio Grande in Costilla, Conejos, 

Alamosa, and Rio Grande Counties, CO, 

and a segment of the Conejos River in 

Conejos, County, CO. The 139 km (87 

mi) segment of the upper Rio Grande 

extends from the confluence with San 

Francisco Creek downstream through 

the Alamosa National Wildlife Refuge to 

the Lobatos Bridge. The 46 km (29 mi) 

segment of the Conejos River begins 

where State Highway 285 crosses the 

River and extends downstream to its 

confluence with the Rio Grande. 

Flycatchers have been detected nesting 

along these segments since 1997. In 

2002, a high of 34 territories from 3 total 

sites (1 on Conejos River and 3 on the 

Rio Grande) were detected on the stream 

segments we are proposing within this 

Management Unit. 

Upper Rio Grande Management Unit 

We are proposing single segments of 

the upper Rio Grande in Taos, Rio 

Arriba, and Santa Fe Counties, NM, the 

Rio Grande del Rancho in Taos County, 

NM, and Coyote Creek in Mora County, 

NM. The upper Rio Grande segment 

extends for 75 km (46 mi) from the Taos 

Junction Bridge (State route 520) 

downstream to the Otowi Bridge (State 

Route 502). The 11 km (7 mi) of the Rio 

Grande del Rancho extends from Sarco 

Canyon downstream to the Arroyo 

Miranda confluence. The 10 km (6 mi) 

Coyote Creek segment travels from 

about 2 km/1 mi above Coyote Creek 

State Park downstream to the second 

bridge on State Route 518, upstream 

from Los Cocas. Flycatchers have been 

detected nesting along these segments 

since 1993. Eleven breeding sites are 

known to exist on these segments (seven 

on Rio Grande, one on Rio Grande del 

Rancho, and three on Coyote Creek). On 

the Rio Grande in 2002, 16 territories 

were detected at a single site. On the Rio 

Grande del Rancho in 2003, a high of six 

territories were detected at a single site. 

On Coyote Creek in 2000, a high of 17 

territories at 3 sites were detected, 

however only 3 territories (from 2 sites) 

were detected in 2002, and no surveys 

occurred in 2003. 

Middle Rio Grande Management Unit 

We are proposing a 207km (129 mi) 

segment of the middle Rio Grande in 

Bernalillo, Valencia, and Soccoro 

Counties, NM, from 4.2 mi north of the 

intersection of Interstate Highways 25 

and 40 downstream to the overhead 

powerline near Milligan Gulch at the 

northern end of Elephant Butte State 

Park. Southwestern willow flycatcher 

territories have been detected on these 

selected stream segments since 1993. On 

the Middle Rio Grande in 2003, a high 

of 107 territories at 6 of 7 different 

breeding sites were detected. In 2002, 98 

territories at these same 7 sites were 

detected. A total of 85 territories were 

detected at the San Marcial site in 2003. 

Similar to the lower Colorado River 

60724 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

segments, the middle Rio Grande has 

been determined to be of additional 

significance due to its heavy use as a 

migratory corridor for the southwestern 

willow flycatcher (Yong and Finch 

1997, 2002). 

Exclusions Under Section 4(b)(2) of the 

Act 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data available after 

taking into consideration the economic 

impact, impact on national security, and 

any other relevant impact, of specifying 

any particular area as critical habitat. 

An area may be excluded from critical 

habitat if it is determined that the 

benefits of such exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. Consequently, we may exclude 

an area from critical habitat based on 

economic impacts, impacts on national 

security, or other relevant impacts such 

as preservation of conservation 

partnerships, if we determine the 

benefits of excluding an area from 

critical habitat outweigh the benefits of 

including the area in critical habitat, 

provided the action of excluding the 

area will not result in the extinction of 

the species. 

In our critical habitat designation we 

use the provisions outlined in section 

4(b)(2) of the Act to evaluate those 

specific areas essential to the 

conservation of the species to determine 

which areas to propose and 

subsequently finalize (i.e., designate) as 

critical habitat. On the basis of our 

evaluation, we have determined that the 

benefits of excluding certain lands from 

the designation of critical habitat for the 

southwestern willow flycatcher 

outweighs the benefits of their 

inclusion, and have subsequently 

excluded those lands from this 

proposed designation pursuant to 

section 4(b)(2) of the Act as discussed 

below. We note that additional areas 

may also be considered for exclusion in 

the final rule and that any exclusions 

made in the final rule will be the result 

of a consideration of new information 

received, including consideration of all 

comments received and the findings of 

the economic and NEPA analyses. 

Areas considered for exclusion 

pursuant to section 4(b)(2) may include, 

but are not limited to, those covered by: 

(1) Legally operative HCPs that cover 

the species and provide assurances that 

the conservation measures for the 

species will be implemented and 

effective; (2) draft HCPs that cover the 

species, have undergone public review 

and comment, and provide assurances 

that the conservation measures for the 

species will be implemented and 

effective (i.e., pending HCPs); (3) Tribal 

conservation plans that cover the 

species and provide assurances that the 

conservation measures for the species 

will be implemented and effective; (4) 

State conservation plans that provide 

assurances that the conservation 

measures for the species will be 

implemented and effective; and (5) 

National Wildlife Refuge System 

Comprehensive Conservation Plans 

(CCPs) that provide assurances that the 

conservation measures for the species 

will be implemented and effective. The 

relationship of critical habitat to these 

types of areas is discussed in detail in 

the following paragraphs. 

Within the essential habitat for 

southwestern willow flycatcher across 

six states there are Tribal lands, lands 

owned by DOD, National Wildlife 

Refuges, private lands with legally 

operative HCPs or draft HCPs, State 

lands with conservation plans, and 

other lands with management plans in 

place for the southwestern willow 

flycatcher. 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans 

(HCPs)

As described above, section 4(b)(2) of 

the Act requires us to consider other 

relevant impacts, in addition to 

economic and national security impacts, 

when designating critical habitat. 

Section 10(a)(1)(B) of the Act authorizes 

us to issue permits for the take of listed 

wildlife species incidental to otherwise 

lawful activities. Development of an 

HCP is a prerequisite for the issuance of 

an incidental take permit pursuant to 

section 10(a)(1)(B) of the Act. An 

incidental take permit application must 

be supported by an HCP that identifies 

conservation measures that the 

permittee agrees to implement for the 

species to minimize and mitigate the 

impacts of the permitted incidental take. 

HCPs vary in size and may provide for 

incidental take coverage and 

conservation management for one or 

many federally listed species. 

Additionally, more than one applicant 

may participate in the development and 

implementation of an HCP. The areas 

occupied by and determined to be 

essential to the southwestern willow 

flycatcher include approved HCPs that 

address multiple species, cover large 

areas, and have many participating 

permittees. Large regional HCPs expand 

upon the basic requirements set forth in 

section 10(a)(1)(B) of the Act because 

they reflect a voluntary, cooperative 

approach to large-scale habitat and 

species conservation planning. Many of 

the large regional HCPs in southern CA 

have been, or are being developed to 

provide for the conservation needs of 

numerous federally listed species and 

unlisted sensitive species and the 

habitat that provides for their biological 

needs. These HCPs address impacts in 

a planning area and create a preserve 

design within the planning area. Over 

time, areas in the planning area are 

developed according to the HCP and the 

area within the preserve is acquired, 

managed, and monitored. These HCPs 

are designed to implement conservation 

actions to address future projects that 

are anticipated to occur within the 

planning area of the HCP in order to 

reduce delays in the permitting process. 

In the case of approved regional HCPs 

(e.g., those sponsored by cities, 

counties, or other local jurisdictions) 

wherein the southwestern willow 

flycatcher is a covered species, a 

primary goal is to provide for the 

protection and management of habitat 

essential for the conservation of the 

species while directing development to 

non-essential areas. The regional HCP 

development process provides an 

opportunity for more intensive data 

collection and analysis regarding the 

use of particular habitat areas by the 

flycatcher. The process also enables us 

construct a habitat preserve system that 

provides for the biological needs and 

long-term conservation of the species. 

Completed HCPs and their 

accompanying Implementing 

Agreements (IA) contain management 

measures and protections for identified 

preserve areas that protect, restore, and 

enhance the value of these lands as 

habitat for southwestern willow 

flycatchers. These measures include 

explicit standards to minimize any 

impacts to the covered species and its 

habitat. In general, HCPs are designed to 

ensure that the value of the conservation 

lands are maintained, expanded, and 

improved for the species that they 

cover. 

For HCPs that have been already 

approved, we have provided assurances 

to permit holders that once the 

protection and management required 

under the plans are in place and for as 

long as the permit holders are fulfilling 

their obligations under the plans, no 

additional mitigation in the form of land 

or financial compensation will be 

required of the permit holders and, in 

some cases, specified third parties. 

A discussion of completed HCPs or 

State of California’s Natural Community 

Conservation Plan Act of 1992 (NCCP)/

HCPs that we identified as having areas 

determined to be essential to the 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60725

conservation of the southwestern 

willow flycatcher follows. 

Santa Ana Management Unit, CA 

Western Riverside County Multiple 

Species Habitat Conservation Plan 

(MSHCP) 

The Western Riverside MSHCP was 

approved on June 22, 2004. Participants 

in this HCP include 14 cities, the 

County of Riverside, including the 

County Flood Control and Water 

Conservation District, County Waste 

Department; the California Department 

of Transportation, and the California 

Department of Parks and Recreation. 

The Western Riverside MSHCP is also a 

subregional plan under the State’s NCCP 

and was developed in cooperation with 

CDFG. Within the 1.26 million-ac 

(510,000 ha) planning area of the 

MSHCP, approximately 153,000 ac 

(62,000 ha) of diverse habitats are 

identified for conservation. The 

conservation of 153,000 ac (62,000 ha) 

will complement other, existing natural 

and open space areas that are already 

conserved through other means (e.g., 

State Parks, USFS, and County Park 

lands). An important objective of the 

MSHCP is to implement measures, 

including monitoring and management, 

necessary to conserve important habitat 

for the southwestern willow flycatcher 

that occurs within the plan’s 

boundaries. The MSHCP aims to 

conserve 100 percent of occupied 

habitat for the southwestern willow 

flycatcher, including landscape areas 

100 m (328 ft) adjacent to occupied 

areas. In addition, the MSHCP requires 

compliance with a Riparian/Riverine 

Areas and Vernal Pool policy that 

contains provisions requiring 100 

percent avoidance and long-term 

management and protection of occupied 

areas not included in the conservation 

areas, unless a Biologically Equivalent 

or Superior Preservation Determination 

can demonstrate that a proposed 

alternative will provide equal or greater 

conservation benefits than avoidance. 

We completed an internal consultation 

on the effects of the plan on the 

southwestern willow flycatcher and its 

essential habitat that is found within the 

plan boundaries, and determined that 

implementation of the plan is provides 

for the conservation of the species. 

On the basis of the conservation 

benefits afforded the flycatcher from the 

measure of the Western Riverside 

MSHCP and the provisions of section 

4(b)(2) of the Act, portions of the Santa 

Ana Watershed, including the Santa 

Ana River, Yucaipa Creek, and 

Temecula Creek containing essential 

habitat for the southwestern willow 

flycatcher that lie within the boundaries 

of the Western Riverside MSHCP are 

excluded from proposed critical habitat. 

We have further determined that the 

exclusion of these areas from critical 

habitat would not result in the 

extinction of the flycatcher. The 

rationale for this determination is 

detailed below.

San Diego Management Unit 

San Diego Multiple Species 

Conservation Program (MSCP) 

In southwestern San Diego County, 

the MSCP effort encompasses more than 

236,000 ha (582,000 ac) and involves 

the participation of the County of San 

Diego and 11 cities, including the City 

of San Diego. This regional HCP is also 

a regional subarea plan under the NCCP 

program and is being developed in 

cooperation with California Department 

of Fish and Game. The MSCP provides 

for the establishment of approximately 

69,573 ha (171,000 ac) of preserve areas 

to provide conservation benefits for 85 

federally listed and sensitive species 

over the life of the permit (50 years), 

including the southwestern willow 

flycatcher. We have determined that 

portions of lands within the boundaries 

of the San Diego Multiple MSCP contain 

essential habitat for the southwestern 

willow flycatcher, including areas along 

portions of the San Dieguito, San Diego, 

and Sweetwater Rivers. These particular 

areas lie within the boundaries of 

approved subarea plans. 

On the basis of the conservation 

benefits afforded the flycatcher from the 

measures of the approved subarea plans 

of the MSCP and the provisions of 

section 4(b)(2) of the Act, we have 

excluded from proposed critical habitat 

those lands determined to be essential 

to the conservation of the flycatcher that 

are within the boundaries of the 

approved subareas of the MSCP. We 

have further determined that the 

exclusion of these areas from critical 

habitat would not result in the 

extinction of the flycatcher. The 

rationale for this determination is 

detailed below. 

Following is our analysis of the 

benefits of including lands within 

approved HCPs versus excluding such 

lands from this critical habitat 

designation. 

(1) Benefits of Inclusion 

The benefits of including approved 

HCPs or NCCP/HCPs in critical habitat 

are normally small. The principal 

benefit of any designated critical habitat 

is that federally funded or authorized 

activities in such habitat that may affect 

it require consultation under section 7 

of the Act. Such consultation would 

ensure that adequate protection is 

provided to avoid adverse modification 

of critical habitat. Where HCPs are in 

place, our experience indicates that this 

benefit is small or non-existent. 

Currently approved and permitted HCPs 

and NCCP/HCPs are crafted to ensure 

the long-term survival and conservation 

of covered species and protection of 

their essential habitat within the plan 

area. Where we have approved HCPs or 

NCCP/HCPs, lands that we ordinarily 

would define as critical habitat for 

covered species will normally be 

protected in reserves or through other 

conservation methods by the terms of 

the HCPs or NCCP/HCPs and their 

Implementing Agreements (IAs). These 

HCPs or NCCP/HCPs and IAs include 

management measures and protections 

for conservation lands designed to 

protect, restore, and enhance their value 

as habitat for covered species. 

Another possible benefit to including 

these lands is that the designation of 

critical habitat can serve to educate 

landowners and the public regarding the 

potential conservation value of an area. 

This may focus and contribute to 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for certain species. 

However, through the HCP development 

process, which typically involves 

extensive outreach and opportunity for 

public review and typically results in 

formal protection of essential habitat 

areas, the public is well informed and 

educated about conservation value of 

essential habitat lands. 

(2) Benefits of Exclusion 

The benefits of excluding HCPs or 

NCCP/HCPs include relieving 

landowners, communities and counties 

of any additional regulatory burden that 

might be imposed by critical habitat. 

This benefit is particularly compelling 

because we have made the 

determination that once an HCP or 

NCCP/HCP is negotiated and approved 

by us after public comment, activities 

consistent with the plan will satisfy the 

requirements of the Act. Many HCPs or 

NCCP/HCPs, particularly large regional 

HCPs or NCCP/HCPs, take many years 

to develop and, upon completion, 

become regional conservation plans that 

are consistent with the conservation of 

covered species. Imposing an additional 

regulatory review after HCP or NCCP/

HCP completion may jeopardize 

conservation efforts and partnerships in 

many areas, and could be viewed as a 

disincentive to those developing HCPs 

or NCCP/HCPs. Excluding HCPs or 

NCCP/HCPs provides us an opportunity 

to streamline regulatory compliance, 

60726 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

and provides regulatory certainty for 

HCP and NCCP/HCP participants. 

Another benefit of excluding HCPs or 

NCCP/HCPs is that it would encourage 

the continued development of 

partnerships with HCP or NCCP/HCPs 

participants, including States, local 

governments, conservation 

organizations, and private landowners, 

that together can implement 

conservation actions we would be 

unable to accomplish. By excluding 

areas covered by HCPs or NCCP/HCPs 

from critical habitat designation, we 

clearly maintain our commitments, 

preserve these partnerships, and, we 

believe, set the stage for more effective 

conservation actions in the future. 

In addition, an HCP or NCCP/HCP 

application must undergo consultation 

pursuant to section 7 of the Act. While 

this consultation will not include a 

formal evaluation of the plan’s potential 

to adversely modify critical habitat 

unless critical habitat has already been 

designated within the proposed plan 

area, it will carefully analyze the effects 

of the plan on essential habitat areas as 

part of its jeopardy analysis under 

section 7 of the Act and as part of its 

evaluation of the adequacy of the plan 

under section 10 of the Act. Because 

virtually all HCPs or NCCP/HCPs, 

particularly large regional HCPs or 

NCCP/HCPs are developed to minimize 

and mitigate the impacts of take (as 

defined in the Act) of covered species 

resulting from habitat loss within the 

plan area, a fundamental goal of these 

plans is to identify and protect habitat 

essential to the covered species while 

directing development to non-habitat or 

lower quality habitat areas. Thus, the 

plan’s effectiveness in protecting 

essential habitat within the plan 

boundaries and habitat issues within the 

plan boundaries will have been 

thoroughly addressed in the HCP or 

NCCP/HCP and consulted upon. Future 

Federal actions that may affect listed 

species would continue to require 

consultation under section 7 of the Act.

Further, HCPs and NCCP/HCPs 

typically provide for greater 

conservation benefits to a covered 

species than consultations pursuant to 

section 7 of the Act because HCPs and 

NCCP/HCPs assure the long-term 

protection and management of a covered 

species and its habitat, and funding for 

such management through the standards 

found in the 5 Point Policy for HCPs (64 

FR 35242) and the HCP No Surprises 

regulation (63 FR 8859). Such 

assurances are typically not provided by 

consultations under section 7 of the Act 

that, in contrast to HCPs, often do not 

commit the project proponent to longterm special management or protections. 

Thus, a consultation typically does not 

accord the lands it covers the extensive 

benefits an HCP or NCCP/HCP provides. 

The development and implementation 

of an HCP or NCCP/HCP provide other 

important conservation benefits, 

including the development of biological 

information to guide conservation 

efforts and assist in species 

conservation, and the creation of 

innovative solutions to conserve species 

while allowing for development. 

(3) The Benefits of Exclusion Outweigh 

the Benefits of Inclusion 

In general, we find that the benefits of 

critical habitat designation for the 

southwestern willow flycatcher on 

lands within approved HCPs that cover 

this subspecies are small while the 

benefits of excluding such lands from 

designation of critical habitat are 

substantial. After weighing the small 

benefits of including these lands against 

the much greater benefits derived from 

exclusion, including encouraging the 

pursuit of additional conservation 

partnerships, we are excluding lands 

within the approved and legally 

operative Western Riverside County 

MSHCP and subareas of the San Diego 

MSCP from proposed critical habitat for 

the southwestern willow flycatcher. 

We find that the MSCHP and the 

MSCP adequately protect essential 

southwestern willow flycatcher habitat 

within their boundaries and provide 

appropriate management to maintain 

and enhance the long term value of such 

habitat. The education benefits of 

critical habitat designation have been 

achieved through the public outreach, 

and notice and comment procedures 

required prior to approval of these 

plans. For these reasons, then, we find 

that designation of critical habitat has 

little benefit in areas covered by these 

HCPs and that such benefits are 

outweighed by the benefits of 

maintaining proactive partnerships with 

plan participants and encouraging 

additional conservation partnerships 

that will result from exclusion of 

essential habitat in these plan areas. We 

also find that the exclusion of these 

lands from proposed critical habitat will 

not result in the extinction of the 

southwestern willow flycatcher, nor 

hinder its recovery because these HCPs 

have already been evaluated under 

section 7 of the Act to ensure that their 

implementation will not jeopardize the 

continued existence of the subspecies. 

A discussion of pending HCPs or 

NCCP/HCPs that we identified as having 

areas determined to be essential to the 

conservation of the southwestern 

willow flycatcher follows. 

San Diego Management Unit 

The City of Carlsbad’s Habitat 

Management Plan (HMP) has been in 

development for several years. This plan 

is one of seven subarea plans being 

developed under the umbrella of the 

North County Multiple Habitat 

Conservation Plan (MHCP) in northern 

San Diego County. Participants in this 

regional conservation planning effort 

include the cities of Carlsbad, Encinitas, 

Escondido, Oceanside, San Marcos, 

Solana Beach, and Vista. The subarea 

plans in development are also proposed 

as subregional plans under the State’s 

NCCP and are being developed in 

cooperation with the California 

Department of Fish and Game (CDFG). 

We have determined that portions of 

lands within the boundaries of the HMP 

contain essential habitat for the 

southwestern willow flycatcher, 

including all of Agua Hedionda Lagoon 

and a portion of Agua Hedionda Creek. 

In developing critical habitat 

designations, we have analyzed habitat 

conservation planning efforts to 

determine if the benefits of excluding 

them from critical habitat outweigh the 

benefits of including them in designated 

critical habitat. In reviewing HCPs, we 

have assessed the potential impacts of 

critical habitat designation on lands 

covered by HCPs on future partnerships, 

the status of HCP efforts and progress 

made in developing and implementing 

such plans, and their relationship to the 

conservation of species. We have 

determined that an HCP not yet 

completed may be considered for 

exclusion from critical habitat 

designation pursuant to the section 

4(b)(2) of the Act. 

Approximately 24,570 ac (9,943 ha) of 

land are within the Carlsbad HMP 

planning area, with about 8,800 ac 

(3,561 ha) remaining as natural habitat 

for species covered under the plan. Of 

this remaining habitat, the Carlsbad 

HMP proposes to establish a preserve 

system for approximately 6,786 ac 

(2,746 ha). 

The City of Carlsbad has 

demonstrated a sustained commitment 

to develop its HMP to comply with the 

section 10(a)(1)(B) of the Act, the 

California Endangered Species Act, and 

the State’s NCCP program. On June 4, 

2004, we published a Notice of 

Availability of a Final Environmental 

Impact Statement/Environmental 

Impact Report (EIS/EIR) for the North 

County MHCP, and the City of 

Carlsbad’s HMP, draft Urgency 

Ordinance and Implementing 

Agreement. Public comment on these 

documents was accepted until July 6, 

2004. 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60727

Although not yet completed and 

implemented, the City of Carlsbad has 

made significant progress in the 

development of its HMP to meet the 

requirements outlined in section 

10(a)(1)(B) of the Act. In light of our 

confidence that the City of Carlsbad will 

reach a successful conclusion to its 

HMP development process, we are 

excluding lands within their 

jurisdiction from the critical habitat 

designation for the southwestern willow 

flycatcher. 

Benefits of Inclusion

As stated previously, the benefits of 

designating critical habitat on lands 

within the boundaries of approved 

HCPs are normally small. Where HCPs 

are in place that include coverage for 

the southwestern willow flycatcher, our 

experience has shown that the HCPs 

and their Implementing Agreements 

include management measures and 

protections designed to protect, restore, 

enhance, manage, and monitor habitat 

to benefit the conservation of species. 

The principal benefit of designating 

critical habitat is that projects carried 

out, authorized, or funded by Federal 

agencies that may affect a listed species 

require the action agency to consult 

with us to ensure such activities do not 

destroy or adversely modify designated 

critical habitat. In the case of the City of 

Carlsbad, their HMP will be analyzed by 

us to determine the effects of the plan 

on the species for which the 

participants are seeking incidental take 

permits. The HMP currently under 

review by us reflects revisions made to 

the plan based on comments and input 

from us, CDFG, and the California 

Coastal Commission. 

Benefits of Exclusion 

Excluding lands within the City of 

Carlsbad’s HMP area from critical 

habitat designation will enhance our 

ability to work with the City in the spirit 

of cooperation and partnership. 

Additionally, other participating 

jurisdictions in the MHCP will likely 

continue working with us in a positive, 

cooperative effort to complete their 

respective subarea plans to conserve 

species and their habitat within the 

MHCP area. A more detailed discussion 

concerning our rationale for excluding 

HCPs from critical habitat designation is 

outlined under the previous section 

regarding the exclusion of approved 

HCPs. Further, we believe the analysis 

conducted to evaluate the benefits of 

excluding approved HCPs from critical 

habitat designation is applicable and 

appropriate to apply to the City of 

Carlsbad’s HMP. We also find that the 

exclusion of the lands within the City of 

Carlsbad’s HMP planning area from 

proposed critical habitat will not result 

in the extinction of the southwestern 

willow flycatcher, nor hinder its 

recovery because we have conducted a 

preliminary analysis to ensure that the 

implementation of the HMP will not 

jeopardize the continued existence of 

the subspecies. 

Relationship of Critical Habitat to 

Military Lands 

Santa Ynez Management Unit, CA 

San Diego Management Unit, CA 

Marine Corps Base, Camp Pendleton 

(MCBCP) 

The Marine Corps Base, Camp 

Pendleton (MCBCP) is an amphibious 

training base that promotes combat 

readiness for military forces and is the 

only Marine Corps facility on the West 

Coast where amphibious operations can 

be combined with air, sea, and ground 

assault training activities year-round. 

Essential habitat for the southwestern 

willow flycatcher within the boundaries 

of MCBCP occurs along portions of 

Cristianitos (6 km/4 mi), San Mateo (5 

km/3 mi), San Onofre (6 km/4 mi), Los 

Flores (8 km/5 mi), Las Pulgas (2 km/

1 mi), and DeLuz Creeks (10 km/6 mi), 

and the Santa Margarita River (45 km/

28 mi); however, as discussed below, 

these areas are being excluded from 

proposed critical habitat for the 

flycatcher. In 1995 we completed a 

section 7 consultation for a Riparian and 

Estuarine Programmatic Conservation 

Plan (Conservation Plan) that addresses 

six federally listed species, including 

the southwestern willow flycatcher, 

occurring within the riparian and 

estuarine/beach areas of MCBCP. We 

determined in our biological opinion 

resulting from that section 7 

consultation that ongoing training and 

maintenance activities within riparian/

estuarine/beach areas on MCBCP would 

not jeopardize the continued existence 

of the southwestern willow flycatcher. 

The Conservation Plan is designed to 

maintain and enhance the biological 

diversity of the riparian ecosystem on 

MCBCP and includes promoting the 

growth of sensitive species, including 

the southwestern willow flycatcher. 

Actions to assist in promoting 

conservation of the southwestern 

willow flycatcher on MCBCP include 

maintaining connectivity of riparian 

habitats; eradicating exotic plant 

communities to further establishment of 

successional stages of riparian scrub and 

riparian woodland habitat; and 

continuing to implement brown-headed 

cowbird management. The terms and 

conditions of the biological opinion for 

the Conservation Plan form the basis for 

portions of MCBCP’s INRMP that was 

completed in 2001. 

(1) Benefits of Inclusion

The primary effect of designating any 

particular area as critical habitat is the 

requirement for Federal agencies to 

consult with us pursuant to section 7 of 

the Act to ensure actions they carry out, 

authorize, or fund do not destroy or 

adversely modify designated critical 

habitat. Absent critical habitat 

designation, Federal agencies remain 

obligated under section 7 to consult 

with us on actions that may affect a 

federally listed species to ensure such 

actions do not jeopardize the species’

continued existence. The Marine Corps 

routinely consults with us for activities 

on MCBCP that may affect federally 

listed species to ensure that the 

continued existence of such species are 

not jeopardized. 

Designation of critical habitat may 

also provide educational benefits by 

informing land managers of areas 

essential to the conservation of the 

southwestern willow flycatcher. In the 

case of MCBCP there is no appreciable 

educational benefit because the 

installation has already demonstrated its 

knowledge and understanding of 

essential habitat for the species through 

the ongoing programmatic consultation, 

implementation of ‘‘programmatic 

instructions’’ and incorporation of 

southwestern willow flycatcher 

locations into MCBCP’s geographic 

information system (Department of the 

Navy; June 23, 2003 letter). 

(2) Benefits of Exclusion

The Marine Corps Base, Camp 

Pendleton (MCBCP) is an amphibious 

training base that promotes combat 

readiness for military forces and is the 

only Marine Corps facility on the West 

Coast where amphibious operations can 

be combined with air, sea, and ground 

assault training activities year-round. 

Designation of critical habitat in 

mission-essential training areas would 

trigger a requirement for the Marine 

Corps to consult on activities that may 

affect designated critical habitat and to 

reinitiate consultation on activities for 

which a consultation may have already 

been completed that assessed the effects 

to a federally listed species on MCBCP. 

The requirement to undertake 

additional consultations or revisit 

already completed consultations 

specifically to address the effects of 

activities on designated critical habitat 

could delay or impair the Marine Corps’

ability to train marines and sailors for 

combat in support of continuous, global 

deployment to the western Pacific and 

southwest Asia (Department of the 

Navy; 2003 letter). 

60728 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion

Based on the impact to national 

security and the Marine Corps’ need to 

maintain a high level of military 

readiness and combat capability, we 

determine that the benefits of excluding 

mission-essential training areas from 

proposed critical habitat for the 

southwestern willow flycatcher 

outweigh the benefits of including them 

in such designation. We, in conducting 

this analysis pursuant to section 4(b)(2) 

of the Act, determined that the 

exclusion of these lands from critical 

habitat will not result in the extinction 

of the southwestern willow flycatcher. 

Although these lands are not included 

in designated critical habitat, the Marine 

Corps will still be required to consult 

with us on activities that may affect the 

southwestern willow flycatcher, to 

ensure such activities do not jeopardize 

the continued existence of the species. 

Based on our analysis above, we are 

excluding these lands from proposed 

critical habitat for the flycatcher 

pursuant to section 4(b)(2) of the Act 

based on the potential impacts on 

national security. 

Seal Beach Naval Weapons Station, 

Fallbrook Detachment 

Naval Weapons Station, Fallbrook 

(Fallbrook NWS) supports combat 

readiness for the U.S. Navy, Air Force, 

and Marine Corps. Fallbrook NWS, 

together with Naval Weapons Station 

Seal Beach and Detachment San Diego, 

functions as a major ordnance storage, 

maintenance, production and 

distribution facility for the western 

United States. Fallbrook NWS stores 

over 3,000 tons of ordnance and is the 

primary supply point for amphibious 

assault ships and Marine Corps training 

ammunition on the west coast and 

provides crucial support for missionessential training activities on MCBCP. 

In light of the installation’s function as 

a weapons storage area, significant parts 

of Fallbrook NWS remain free of 

infrastructure due to safety concerns. 

This has resulted in minimal affects to 

surrounding habitat, including portions 

of the Santa Margarita River. The 

Fallbrook NWS has provided private 

researchers and the general public with 

opportunities for scientific and 

educational pursuits on the installation 

while controlling access to sensitive 

habitat areas to avoid causing 

inadvertent harm to species, including 

the southwestern willow flycatcher. 

Currently, Fallbrook NWS is working 

cooperatively with us to develop a 

INRMP that is proposed to address the 

conservation needs of the southwestern 

willow flycatcher. A Fire Management 

Plan (FMP) for Fallbrook NWS was 

completed in 2003 and is a primary 

component of the installation’s effort to 

develop and implement an INRMP. 

Based on information provided in the 

FMP, breeding and/or territorial 

flycatchers have not been detected on 

Fallbrook NWS since the listing of the 

flycatcher under the Act, with all recent 

sightings determined to be transient 

birds. Measures to offset, avoid or 

minimize affects to the least Bell’s 

vireo—another riparian dependent 

species—as described in our biological 

opinion on the FMP are also adequate 

to avoid effects on transient 

southwestern willow flycatchers. 

Additionally, Fallbrook NWS has agreed 

to provide information to us regarding 

any future sightings of southwestern 

willow flycatchers and will conduct 

follow-up surveys to determine their 

breeding status. If breeding or territorial 

flycatchers are detected on the Fallbrook 

NWS, the U.S. Navy and we will 

cooperate to determine whether 

additional measures to avoid and 

minimize the effects of fire management 

activities on the southwestern willow 

flycatcher are necessary. 

(1) Benefits of Inclusion

The primary benefit of critical habitat 

with regard to activities that require 

consultation pursuant to section 7 of the 

Act is to ensure that an activity does not 

destroy or adversely modify designated 

critical habitat. Benefits associated with 

proposing critical habitat on missionessential training lands on Fallbrook 

NWS are limited.

Designation of critical habitat on 

portions of the Santa Margarita River 

that lie within the boundaries of the 

Fallbrook NWS would require the U.S. 

Navy to consult with us on proposed 

activities to ensure they will not 

adversely modify or destroy critical 

habitat. Since no military training 

activities occur on Fallbrook NWS and 

given the fact we have completed a 

consultation with the installation for a 

fire management plan that will serve as 

a principle component of the 

installation’s INRMP, there is likely 

little additional benefit from designating 

critical habitat on Fallbrook NWS. 

The educational benefits of critical 

habitat designation include informing 

the U.S. Marine Corps and U.S. Navy of 

areas that are essential to the 

conservation of the southwestern 

willow flycatcher. This information has 

already been provided to the Marine 

Corps and the Navy through the 

completion of consultations pursuant to 

section 7 of the Act. 

(2) Benefits of Exclusion

Designation of critical habitat for the 

southwestern willow flycatcher on 

Fallbrook NWS would require 

reinitiation of consultation on the FMP 

that was completed in 2003, possibly 

leading to additional delays in the 

completion of the INRMP. 

(3) Benefits of Exclusion Outweigh 

Benefits of Inclusion

Given the low impact use that occurs 

on Fallbrook NWS and the ongoing 

cooperation between us and the Navy to 

complete the INRMP, the requirement to 

consult on critical habitat would 

potentially require Fallbrook NWS to 

expend time to reinitiate consultation 

on its FMP before moving forward with 

work on the INRMP. We believe that, 

when completed and adopted, the 

Fallbrook NWS INRMP will provide an 

equal or greater benefit to southwestern 

willow flycatchers than a critical habitat 

designation. Based on our analysis 

above, we are excluding these lands 

from proposed critical habitat for the 

flycatcher pursuant to section 4(b)(2) of 

the Act based on the potential impacts 

on national security. We also find that 

the exclusion of lands within Fallbrook 

NWS from proposed critical habitat will 

not result in the extinction of the 

southwestern willow flycatcher, nor 

hinder its recovery because the FMP has 

already been evaluated under section 7 

of the Act to ensure that its 

implementation will not jeopardize the 

continued existence of the subspecies. 

Roosevelt, Middle Gila/San Pedro, and 

Verde Management Units, AZ 

Roosevelt Lake HCP 

An HCP for Salt River Project (SRP) 

was completed for the operation of 

Roosevelt Dam in Gila and Maricopa 

Counties, which included as the action 

area the perimeter of Roosevelt Lake’s 

high water mark (ERO 2002). The 

Record of Decision for the HCP was 

dated February 27, 2003. The land 

within the Roosevelt Lake perimeter is 

Federal land withdrawn by the U.S. 

Bureau of Reclamation and managed by 

the U.S. Forest Service. The flycatcher 

population at Roosevelt Lake, 

depending on the year, can be the 

largest population of nesting 

southwestern willow flycatchers across 

the subspecies range (approximately 150 

territories, plus an unknown number of 

unmated floating/non-breeding 

flycatchers and fledglings). Operation of 

Roosevelt Dam during low water years 

can yield as much as 506 ha (1,250 ac) 

of occupied flycatcher habitat within 

the perimeter of the high water mark. 

Annually, the total available habitat 

varies as reservoir levels fluctuate 

depending on annual precipitation with 

dry years yielding proportionally more 

habitat. We anticipated that creation 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60729

and loss of habitat would occur over the 

life of the HCP. Flycatcher habitat at 

Roosevelt Lake varies depending on 

how and when the lake recedes as a 

result of water in-flow and subsequent 

storage capacity and delivery needs. As 

the lake recedes, flat-gradient, fine moist 

soils are exposed which provide seed 

beds for riparian vegetation. The size of 

Roosevelt Lake, and therefore the 

amount and location of flycatcher 

habitat, can vary greatly due to dam 

operations, floods, and drought. 

However, even in the expected highwater years, we determined that some 

flycatcher habitat would persist at 

Roosevelt Lake providing a net benefit 

to the bird. 

The HCP covers Roosevelt Dam 

operations for 50 years and involves the 

conservation of a minimum of 607 ha 

(1,500 ac) of flycatcher habitat off site, 

outside of the Roosevelt Management 

Unit, on the San Pedro, Verde, and/or 

Gila rivers, and possibly other streams 

in Arizona, and implementation of 

conservation measures to protect up to 

an additional 304 ha (750 ac) of 

flycatcher habitat. Measures in the HCP 

included having the Forest Service hire 

a Forest Service employee to patrol and 

improve protection of flycatcher habitat 

in the Roosevelt lakebed from adverse 

recreation activities.

Currently, within our proposed 

critical habitat areas, habitat has been 

acquired at three properties (Adobe 

Preserve, Spirit Hollow, and Gilleland) 

along the lower San Pedro River 

(Middle Gila/San Pedro Management 

Unit), and a single property along the 

Verde River (Verde Management Unit) 

(Beta Ventures). The riparian area for 

each property is 22 ha (54 ac) for Adobe, 

32 ha (80 ac) for Spirit Hollow, 16 ha 

(40 ac) for Gilleland, and approximately 

40 ha (100 ac) for Beta Ventures/

Superior. More habitat acquisition is 

needed to complete the mitigation 

requirements of the HCP and permit. 

The conclusion provided in the 

biological opinion required in order to 

issue the HCP permit, was based upon 

the persistence of varying degrees of 

occupied southwestern willow 

flycatcher habitat that, at a minimum, 

could possibly reach the numerical (50 

territories) and distribution goals 

(within Roosevelt Management Unit) 

established in the Recovery Plan, under 

full operation of Roosevelt Dam with an 

HCP. The permittee (ERO 2002) 

estimated that an average of 121 to 162 

ha (300 to 400 ac) of suitable habitat 

(thus about 60 to 81 ha/150 to 200 ac 

of occupied habitat) would be present 

during the life of the permit, which 

could support 45 to 90 territories. Even 

in a worse case flood event, 15 to 30 

territories are expected to persist. Under 

more favorable habitat conditions, the 

area between the existing pool and the 

high water mark has supported the 

largest local population of flycatchers 

throughout the subspecies range 

(approximately 150 pairs). The basis for 

the full-time USFS employee is to 

minimize the effects of on-the-ground 

actions (livestock grazing, recreation, 

fire, habitat clearing, development, 

roads, fencing, boating, gravel 

collection, off-highway vehicles, etc.), 

not at the discretion or under the 

control of SRP. While it is not possible 

to fully protect these areas with an onthe-ground officer, the HCP provides an 

additional level of protection that would 

not otherwise be available to the habitat. 

We are proposing to exclude this HCP 

from critical habitat designation because 

it is already managed to protect the 

primary constituent elements and also 

because under section 4(b)(2) of the Act, 

we find the benefits of exclusion exceed 

the benefits of inclusion. Our 

determination under section 4(b)(2) is 

based on two factors, first HCPs 

typically provide for greater 

conservation benefits to a covered 

species than consultations pursuant to 

section 7 of the Act because HCPs 

assure the long-term protection and 

management of a covered species and its 

habitat, and funding for such 

management through the standards 

found in the 5 Point Policy for HCPs (64 

FR 35242) and the HCP No Surprises 

regulation (63 FR 8859). Such 

assurances are typically not provided by 

consultations under section 7 of the Act 

that, in contrast to HCPs, often do not 

commit the project proponent to longterm special management or protections. 

Thus, a consultation typically does not 

accord the lands it covers the extensive 

benefits an HCP provides. The 

development and implementation of an 

HCP provides other important 

conservation benefits, including the 

development of biological information 

to guide conservation efforts and assist 

in species conservation, and the 

creation of innovative solutions to 

conserve species while allowing for 

development. Secondly, a designation of 

the reservoir bottom would potentially 

affect the ability of the reservoir to 

provide water supply and flood control 

protection downstream with potentially 

catastrophic health and safety 

consequences for the population below 

the dam. There may be additional 

economic consequences to designation 

that we have not identified at this point 

but which will be addressed in the 

economic analysis that will be 

conducted on this proposed 

designation. For the abovementioned 

reasons, we are proposing to exclude 

Roosevelt dam and its perimeter areas 

from designation of critical habitat. 

Areas Proposed as Critical Habitat That 

May Be Considered for Exclusion From 

the Final Designation 

Below we discuss areas identified as 

having habitat that is essential to the 

southwestern willow flycatcher 

including, State Wildlife Areas, 

National Wildlife Refuge lands, and 

Tribal and Pueblo lands that are 

included in this proposal, but that we 

may consider for exclusion from the 

final designation of critical habitat 

based upon further analysis and public 

comment. 

Relationship of Critical Habitat to State 

Conservation Plans 

Pahranagat Management Unit, NV 

Key Pittman State Wildlife Area 

The Key Pittman Wildlife Area is 

located in Lincoln County, NV, and 

contains a wide diversity of habitats 

within its 539 ha (1,332 ac). The 

Pahranagat River travels through portion 

of the Key Pittman Wildlife Area, 

including Nesbitt Lake, an impounded 

area along the river. The State of 

Nevada’s Department of Wildlife owns 

and manages this property. The Nevada 

Fish and Game Commission purchased 

portions of the area in 1962 and 1966, 

primarily for waterfowl hunting, and as 

a secondary goal, habitat for other 

wetland species. A draft management 

plan was completed in November 2003 

and provides the framework for the next 

10 years. The plan went through 

stakeholder meetings and public review. 

We determined that the entire stretch 

of the Pahranagat River, through this 

Wildlife Area, is essential to the 

conservation of the southwestern 

willow flycatcher. A total of 4 to 10 

southwestern willow flycatcher 

territories have been detected since 

1999, 9 were detected in 2002. The State 

of Nevada fences the known flycatcher 

habitat in order to protect it from 

livestock grazing, manages water to 

maintain habitat, monitors the status of 

flycatchers, and is actively planting 

riparian plants to improve the 

distribution of riparian habitat. While 

the plan has not been finalized, the area 

has been under management for wildlife 

since the 1960s, targets waterfowl, 

wetland species, and specifically the 

southwestern willow flycatcher. At this 

time we are not excluding or proposing 

to exclude this area from critical habitat 

for the flycatcher, but we may exclude 

it from the final designation after further 

analysis and public comment. 

60730 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

Overton State Wildlife Area 

The Overton Wildlife Area is located 

in Clark County, NV, and contains a 

wide diversity of habitats within its 

7146 ha (17,657 ac). The Muddy River 

travels through a small portion of the 

State Wildlife Management Area near 

Lake Mead. The State of Nevada’s 

Department of Wildlife owns and 

manages this property. A management 

plan was completed in December 2000 

and provides the framework for the next 

10 years. The plan went through 

stakeholder meetings and public review. 

We determined that the entire 3 km (2 

mi) stretch of the Muddy River through 

the Overton Wildlife Area is essential to 

the conservation of the southwestern 

willow flycatcher. A total of one to two 

southwestern willow flycatcher 

territories have been detected within the 

Overton Wildlife Area on the Muddy 

River since 1997. Riparian habitat is 

being enhanced and protected for 

neotropical migratory birds including 

southwestern willow flycatchers. A 

minimum of a quarter-acre willow patch 

and varying amount of cottonwood, 

mesquite, and hackberry will be planted 

annually in locations able to support 

native riparian trees, and water is being 

managed to improve and maintain 

riparian habitat. Riparian habitat is 

protected from livestock grazing, 

because no grazing occurs in the 

Wildlife Area. This Wildlife Area was 

developed for wetland habitat and 

waterfowl activities (including hunting). 

As a result, flycatcher-related riparian 

habitat maintenance activities described 

in the management plan are consistent 

with the management goals of the 

Wildlife Area. At this time we are not 

excluding or proposing to exclude this 

area from critical habitat for the 

flycatcher, but we may exclude it from 

the final designation after further 

analysis and public comment.

Relationship of Critical Habitat to 

National Wildlife Refuge Lands 

We have determined that areas 

essential to the conservation of the 

southwestern willow flycatcher include 

the following National Wildlife Refuges 

(NWR): Bill Williams NWR, Parker, AZ; 

Cibola NWR, Blythe, AZ; Imperial NWR, 

Yuma, AZ; Havasu NWR, Needles, CA; 

Alamosa/Monte Vista NWR, Alamosa, 

CO; Bosque del Apache and Sevilleta 

NWRs, Socorro, NM; and Pahranagat 

NWR, Alamo, NV. All of these refuges 

will be developing or in some cases 

(Sevilleta and Alamosa NWRs) have 

developed comprehensive resource 

management plans that will provide for 

protection and management of all trust 

resources, including federally listed 

species and sensitive natural habitats. 

These plans, and many of the 

management actions undertaken to 

implement them, will have to undergo 

consultation under section 7 of the Act 

and be evaluated for their consistency 

with the conservation needs of listed 

species. We believe that there is 

minimal benefit from designating 

critical habitat for the southwestern 

willow flycatcher within NWR lands 

because these lands are already 

managed for the conservation of 

wildlife. At this time we are not 

excluding or proposing to exclude 

NWRs, but may exclude them from the 

final designation after further analysis 

and public comment. 

Relationship of Critical Habitat to 

Tribal Lands 

In accordance with the Secretarial 

Order 3206, ‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act’’ (June 5, 1997); the 

President’s memorandum of April 29, 

1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); Executive 

Order 13175; and the relevant provision 

of the Departmental Manual of the 

Department of the Interior (512 DM 2), 

we believe that fish, wildlife, and other 

natural resources on tribal lands are 

better managed under tribal authorities, 

policies, and programs than through 

Federal regulation wherever possible 

and practicable. Based on this 

philosophy, we believe that, in many 

cases, designation of tribal lands as 

critical habitat provides very little 

additional benefit to threatened and 

endangered species. Conversely, such 

designation is often viewed by tribes as 

an unwanted intrusion into tribal self 

governance, thus compromising the 

government-to-government relationship 

essential to achieving our mutual goals 

of managing for healthy ecosystems 

upon which the viability of threatened 

and endangered species populations 

depend. 

We have determined that the 

following tribes and pueblos have lands 

essential to the conservation of the 

southwestern willow flycatcher: Camp 

Verde, Chemehuevi, Colorado River, 

Fort Mojave, Fort Yuma, Hualapai, 

Isleta, La Jolla, Pala, Rincon, San Carlos, 

San Illdefonso, San Juan, Santa Clara, 

Santa Ysabel, and Yavapai Apache. In 

making our final decision with regard to 

tribal lands, we will be considering 

several factors including our 

relationship with the Tribe or Pueblo 

and whether a management plan has 

been developed for the conservation of 

the southwestern willow flycatcher on 

their lands. At this time, we have 

received draft management plans from 

the Colorado River Indian Tribes and 

the Hualapai Tribe, as discussed below, 

and we expect that additional 

management plans will be received 

during the public comment period. In 

addition, the Pueblo of Santa Ana has 

entered into a Safe Harbor Agreement 

with us that details the conservation 

measures to be implemented on their 

lands as further discussed below. We 

will continue to work with the Tribes 

and Pueblos during the comment period 

on the development of management 

plans for their lands. We note that 

additional areas will likely be 

considered for exclusion in the final 

rule and that any exclusions made in 

the final rule will be the result of a 

reanalysis of any new information 

received, including consideration of all 

comments received and the findings of 

the economic and NEPA analyses. 

Parker to Southerly International Border 

Management Unit, AZ 

Hualapai Tribe 

The Hualapai Tribe sits alongside a 

segment of essential southwestern 

willow flycatcher habitat along the 

Colorado River on the south side of the 

channel. The Hualapai Tribe had no 

known southwestern willow flycatcher 

territories in 2003, but has eight sites 

where territories have previously been. 

The Hualapai Tribe has been active in 

conducting annual flycatcher surveys. 

The Hualapai Tribe has submitted a 

draft Southwestern Willow Flycatcher 

Management Plan, which describes the 

protections and assurances for the 

flycatcher. The Hualapai Department of 

Natural Resources Division, and other 

cooperators assure long-term protection 

of southwestern willow flycatcher 

habitat, while maintaining a recreational 

and tourist industry and traditional 

values. If a final Management Plan is 

received from the Hualapai Nation that 

meets the conservation needs of the 

species and assurances for 

implementation and success, we 

anticipate that the Hualapai Nation may 

be excluded from the final designation. 

Colorado Indian Tribes 

We determined that the Colorado 

Indian Tribes have areas that are 

essential to the conservation of the 

southwestern willow flycatcher along 

the Colorado River. The Colorado River 

Indian Tribes have no known 

southwestern willow flycatcher 

territories, but have been active in 

riparian restoration within tribal 

boundaries. The Colorado River Indian 

Tribes have submitted a draft 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60731

Southwestern Willow Flycatcher 

Management Plan, which describes the 

protections and assurances for the 

flycatcher. If a final Management Plan is 

received from the Colorado River Indian 

Tribes that meets the conservation 

needs of the species and assurances for 

implementation and success, we 

anticipate that lands within the tribal 

boundaries of the Colorado River Indian 

Nations may be excluded from the final 

designation. 

San Carlos Apache Tribe 

The San Carlos Apache Tribe is 

currently drafting a conservation plan 

for the southwestern willow flycatcher. 

It is our understanding that the plan is 

tentatively scheduled for completion in 

early 2005. We intend to work with the 

Tribe to assist in this process and to 

help ensure that the final conservation 

plan is submitted to us during the 

public comment period so that we can 

consider it in our final critical habitat 

determination.

The Tribe highly values its wildlife 

and natural resources which it is 

charged to preserve and protect under 

the Tribal Constitution. Consequently, 

the Tribe has long worked to manage the 

habitat of wildlife on its tribal lands, 

including the habitat of endangered and 

threatened species. We understand that 

it is the Tribe’s position that a 

designation of critical habitat on its 

lands improperly infringes upon their 

tribal sovereignty and the right to selfgovernment. 

We also evaluated the following HCPs 

during the development of this 

proposed rule and determined that, at 

this time, we do not have adequate 

justification to exclude these area under 

section 4(b)(2) of the Act. As noted 

above, we will evaluate all comments 

received and the findings of the 

economic and NEPA analyses which 

may lead us to consider excluding these 

areas from the final critical habitat 

designation based upon new 

information. 

Virgin Management Unit, NV 

Clark County Multiple Species Habitat 

Conservation Plan (MSHCP) 

The Clark County MSHCP, permitted 

in early 2001, included 78 species, 2 of 

which are federally listed (desert 

tortoise and southwestern willow 

flycatcher). Six of the 78 species are 

riparian dependent birds. The permit 

was conditioned so that incidental take 

of southwestern willow flycatchers and 

the other riparian birds would not be 

authorized until certain obligations 

were met by the permittees. Those 

obligations include: (1) The permittees 

are required to acquire private lands in 

desert riparian habitats along the 

Muddy and Virgin Rivers, and Meadow 

Valley Wash; and (2) the permittees are 

required to develop conservation 

management strategies for the Virgin 

River, Muddy River, and Meadow 

Valley Wash, within which the total 

number and locations of acres of 

riparian habitat to be acquired within 

each watershed will be identified. While 

planning for the Virgin River watershed 

is underway, neither of these two 

required planning efforts are developed 

enough in order to provide assurances 

and protections for the southwestern 

willow flycatcher. As a result, we are 

not excluding any essential habitat 

along the Virgin River from proposed 

critical habitat for the southwestern 

willow flycatcher on the basis of the 

Clark County MSHCP. 

Hoover to Parker, Parker to Southerly 

International Border, Middle Colorado, 

Virgin, and Pahranagat Management 

units, AZ 

Lower Colorado River Multi-Species 

Conservation Plan 

The Lower Colorado River MultiSpecies Conservation Plan (LCR MSCP) 

is being developed for areas along the 

lower Colorado River along the borders 

of Arizona, California, and Nevada, from 

Lake Mead to Mexico. The Management 

Units primarily encompassed in the 

LCR MSCP are the Hoover to Parker and 

Parker to Southerly International Border 

Management units along the Arizona/

California border. Streams in the Middle 

Colorado (Colorado River), Virgin 

(Virgin River), and Pahranagat (Muddy 

River) Management units in Arizona, 

Utah, and Nevada, are only briefly 

represented where they surround Lake 

Mead, and may or may not be locations 

where protection and mitigation occurs. 

The southwestern willow flycatcher is a 

key species in the LCR MSCP and the 

intention of the permittee is to create 

and maintain 1,639 ha (4,050 ac) of 

flycatcher habitat over the 50-year life of 

the permit. A draft HCP was released to 

the public in June 2004. If we determine 

that the LCR MSCP adequately 

addresses the conservation needs of the 

subspecies, we will consider excluding 

lands of the LCR MSCP represented 

within the lower Colorado River from 

the final designation of critical habitat 

for the southwestern willow flycatcher. 

The basis for this decision is as follows: 

We anticipate the LCR MSCP will result 

in increasing important southwestern 

willow flycatcher habitat as a result of 

restoration projects during the 50-year 

life of the project; the LCR MSCP has 

been released as a draft, as noted above, 

with sufficient budget commitments to 

assure successful implementation; and 

compliance performance criteria require 

that these restoration projects which 

have been identified in the LCR MSCP 

have to be met for projects to be 

compliant with the terms of the permit. 

Section 7 Consultation 

The regulatory effects of a critical 

habitat designation under the Act are 

triggered through the provisions of 

section 7, which applies only to 

activities conducted, authorized, or 

funded by a Federal agency (Federal 

actions). Regulations implementing this 

interagency cooperation provision of the 

Act are codified at 50 CFR 402. 

Individuals, organizations, States, local 

governments, and other non-Federal 

entities are affected by the designation 

of critical habitat only if their actions 

occur on Federal lands, require a 

Federal permit, license, or other 

authorization, or involve Federal 

funding. 

Section 7(a)(2) of the Act requires 

Federal agencies, including us, to insure 

that their actions are not likely to 

jeopardize the continued existence of a 

listed species or result in the 

destruction or adverse modification of 

designated critical habitat. This 

requirement is met through section 7 

consultation under the Act. Our 

regulations define ‘‘jeopardize the 

continued existence of’’ as to engage in 

an action that reasonably would be 

expected, directly or indirectly, to 

reduce appreciably the likelihood of 

both the survival and recovery of a 

listed species in the wild by reducing 

the reproduction, numbers, or 

distribution of that species (50 CFR 

402.02). ‘‘Destruction or adverse 

modification of designated critical 

habitat’’ for this species would include 

habitat alterations that appreciably 

diminish the value of critical habitat by 

significantly affecting any of those 

physical or biological features that were 

the basis for determining the habitat to 

be critical. We are currently reviewing 

the regulatory definition of adverse 

modification in relation to the 

conservation of the species. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. Conference reports 

provide conservation recommendations 

to assist Federal agencies in eliminating 

conflicts that may be caused by their 

proposed actions. The conservation 

measures in a conference report are 

advisory.

60732 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

We may issue a formal conference 

report, if requested by the Federal action 

agency. Formal conference reports 

include an opinion that is prepared 

according to 50 CFR 402.14, as if the 

species was listed or critical habitat 

designated. We may adopt the formal 

conference report as the biological 

opinion when the species is listed or 

critical habitat designated, if no 

substantial new information or changes 

in the action alter the content of the 

opinion (50 CFR 402.10(d)). 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of such a species or 

to destroy or adversely modify its 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

(action agency) must enter into 

consultation with us. Through this 

consultation, the Federal action agency 

would ensure that the permitted actions 

do not destroy or adversely modify 

critical habitat. 

If we issue a biological opinion 

concluding that a project is likely to 

result in the destruction or adverse 

modification of critical habitat, we also 

provide ‘‘reasonable and prudent 

alternatives’’ to the project, if any are 

identifiable. Reasonable and prudent 

alternatives are defined at 50 CFR 

402.02 as alternative actions identified 

during consultation that can be 

implemented in a manner consistent 

with the intended purpose of the action, 

that are consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that the 

Service’s Regional Director believes 

would avoid the likelihood of 

jeopardizing the continued existence of 

listed species or resulting in the 

destruction or adverse modification of 

critical habitat. Reasonable and prudent 

alternatives can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions under certain circumstances, 

including instances where critical 

habitat is subsequently designated and 

the Federal agency has retained 

discretionary involvement or control 

over the action or such discretionary 

involvement or control is authorized by 

law. Consequently, some Federal 

agencies may request reinitiation of 

consultation or conference with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect designated critical habitat, or 

adversely modify or destroy proposed 

critical habitat. 

Federal activities that may affect 

southwestern willow flycatcher or its 

critical habitat will require consultation 

under section 7. Activities on private, 

State, or county lands, or lands under 

local jurisdictions requiring a permit 

from a Federal agency, such as Federal 

Highway Administration or Federal 

Emergency Management Act funding, or 

a permit from the Corps under section 

404 of the Clean Water Act, will 

continue to be subject to the section 7 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on non-Federal 

lands that are not federally funded, 

authorized, or permitted, do not require 

section 7 consultations. 

Section 4(b)(8) of the Act requires us 

to evaluate briefly and describe, in any 

proposed or final regulation that 

designates critical habitat, those 

activities involving a Federal action that 

may adversely modify such habitat or 

that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat 

include those that alter the primary 

constituent elements to an extent that 

the value of critical habitat for both the 

survival and recovery of southwestern 

willow flycatcher is appreciably 

reduced. We note that such activities 

may also jeopardize the continued 

existence of the species. Activities that, 

when carried out, funded, or authorized 

by a Federal agency that may affect the 

southwestern willow flycatcher and 

which may require consultation under 

section 7 of the Act to determine if they 

adversely modify critical habitat 

include, but are not limited to:

(1) Removing, thinning, or destroying 

riparian vegetation without a riparian 

restoration plan to cause habitat to become of 

equal or better quality in abundance and 

extent. Activities that remove, thin, or 

destroy riparian vegetation, by mechanical, 

chemical (herbicides or burning), or 

biological (grazing, biocontrol agents) means 

reduce constituent elements for southwestern 

willow flycatcher sheltering, feeding, 

breeding, and migrating. 

(2) Activities that appreciably diminish 

habitat value or quality through direct or 

indirect effects (e.g., degradation of 

watershed and soil characteristics, 

diminishing surface and subsurface flow, 

altering flow regimes, introduction of exotic 

plants, animals, or insects, or fragmentation 

of habitat); 

(3) Alteration of current surface water 

diversion or impoundment, groundwater 

pumping, dam operation, or any other 

activity which changes the frequency, 

magnitude, duration, timing or abundance of 

surface flow (Poff et al. 1997), and/or 

quantity/quality of subsurface water flow in 

a manner which permanently reduces 

available riparian habitats by reducing food 

availability, or the general suitability, quality, 

structure, abundance, longevity, vigor, microhabitat components, and distribution of 

riparian habitat for nesting or migrating. 

(4) Permanent 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, 

dikes, levees, etc.). 

(5) Management of livestock in a manner 

that reduces the volume and composition of 

riparian vegetation, physically disturbs nests, 

alters floodplain dynamics such that 

regeneration of riparian habitat is impaired or 

precluded, facilitates brood parasitism by 

brown-headed cowbirds, alters watershed 

and soil characteristics, alters stream 

morphology , and facilitates abundance and 

extent of exotic species.

The designation of critical habitat 

does not imply that lands outside of 

critical habitat do not play an important 

role in the conservation of the 

flycatcher. Federal activities outside of 

critical habitat are still subject to review 

under section 7 if they may affect the 

flycatcher. The prohibitions of section 9 

also continue to apply both inside and 

outside of designated critical habitat.

In general, activities that do not 

remove or appreciably degrade 

constituent elements of habitat for 

southwestern willow flycatchers are not 

likely to destroy or adversely modify 

critical habitat. For example, certain 

dam operations, like Roosevelt Dam in 

central AZ, allow water to significantly 

increase and decrease in the 

conservation space depending on 

availability and demand. This 

fluctuation results in the exposure of 

fine/moist soils in the flat/broad 

floodplain of the exposed ground and 

has led to the development of hundreds 

of acres of flycatcher habitat. The same 

operating regime that creates the habitat 

will also inundate and cause loss of 

habitat; at this particular location, 

habitat is expected to persist on the 

perimeter and over time will increase 

and decrease (USFWS 2003). It is this 

very process of the ebb and flow of the 

conservation pool that ensures 

persistence of habitat over time, 

although that habitat will vary spatially 

and temporally, as does flycatcher 

habitat in natural settings. As a result, 

the dry conservation space would not be 

adversely modified when inundated as 

long as the action is covered by an 

operative HCP. Riparian restoration can 

also cause a temporary loss of habitat. 

However, if it is combined with positive 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60733

site-specific evaluation (through an 

analysis of on the ground features such 

as groundwater elevation, etc.) and an 

implementation/restoration plan 

(USFWS 2002) that together are 

expected to cause habitat to become of 

the same quality or better for the 

flycatcher, it would be expected that 

those types of restoration activities 

would not destroy or adversely modify 

critical habitat. Each proposed action 

will be examined pursuant to section 7 

of the Act in relation to its site-specific 

impacts. 

All lands proposed as critical habitat 

are within the geographical area 

occupied by the species and are 

essential for the conservation of 

southwestern willow flycatcher. Federal 

agencies already consult with us on 

actions that may affect southwestern 

willow flycatcher to ensure that their 

actions do not jeopardize the continued 

existence of the species. Thus, we do 

not anticipate substantial additional 

regulatory protection will result from 

critical habitat designation. 

If you have questions regarding 

whether specific activities will 

constitute destruction or adverse 

modification of critical habitat, contact 

the Supervisor of the appropriate Fish 

and Wildlife Service Ecological Services 

Office (see list below). In NM and AZ 

requests for copies of the regulations on 

listed wildlife and plants and inquiries 

about prohibitions and permits may be 

addressed to the U.S. Fish and Wildlife 

Service, Branch of Endangered Species, 

Post Office Box 1306, Albuquerque, NM 

87103–1306 (telephone (505) 248–6920; 

facsimile (505) 248–6922).

Area/state Address Phone No. 

So. California .......................................... 2730 Locker Avenue West, Carlsbad, CA 92009 .................................................. (760) 431–9440 

Central Coastal CA ................................ 2493 Portola Road, Suite B, Ventura, CA 93003 .................................................. (805) 644–1766 

Central California ................................... 2800 Cottage Way, Sacramento, CA 95821 .......................................................... (916) 414–6600 

Nevada ................................................... 1510 Decatur, Las Vegas, NV 89108 .................................................................... (702) 515–5230 

Utah ........................................................ 2369 West Orton Circle, West Valley City, UT 84119 ........................................... (801) 975–3330 

Colorado ................................................. 764 Horizon Dr. S. Annex A–Bldg. B, Grand Junction, CO 81506 ....................... (970) 243–2788 

AZ ........................................................... 2321 W. Royal Palm Road Ste. 103, Phoenix, AZ 85021 ..................................... (602) 242–0210 

NM .......................................................... 2105 Osuna Rd. NE., Albuquerque, NM 87113 ..................................................... (505) 761–4718 

Economic Analysis 

Section 4(b)(2) of the Act requires us 

to designate critical habitat on the basis 

of the best scientific and commercial 

data available and to consider the 

economic impact, impact on national 

security, and other relevant impacts of 

designating a particular area as critical 

habitat. We may exclude areas from 

critical habitat upon a determination 

that the benefits of such exclusions 

outweigh the benefits of specifying such 

areas as critical habitat. We cannot 

exclude such areas from critical habitat 

when such exclusion will result in the 

extinction of the species. 

An analysis of the economic impacts 

of proposing critical habitat for 

southwestern willow flycatcher is being 

prepared. We will announce the 

availability of the draft economic 

analysis as soon as it is completed, at 

which time we will seek public review 

and comment. At that time, copies of 

the draft economic analysis will be 

available for downloading from the 

Internet at http://arizonaes.fws.gov, or 

by contacting the AZ Ecological 

Services Fish and Wildlife Office 

directly (see ADDRESSES section). 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we will solicit the expert 

opinions of at least three appropriate 

and independent specialists regarding 

this proposed rule. The purpose of such 

review is to ensure that our critical 

habitat designation is based on 

scientifically sound data, assumptions, 

and analyses. We will send these peer 

reviewers copies of this proposed rule 

immediately following publication in 

the Federal Register. We will invite 

these peer reviewers to comment, 

during the public comment period, on 

the specific assumptions and 

conclusions regarding the proposed 

designation of critical habitat. 

We will consider all comments and 

information received during the 60-day 

comment period on this proposed rule 

as we prepare our final rulemaking. 

Accordingly, the final designation may 

differ from this proposal. 

Public Hearings

Section 4(b)(5)(E) of the Act provides 

for one or more public hearings on this 

proposal, if requested. Requests must be 

received within 45 days of the date of 

publication of the proposal in the 

Federal Register. Such requests must be 

made in writing and be addressed to the 

Field Supervisor (see ADDRESSES

section). We will schedule public 

hearings on this proposal, if any are 

requested, and announce the dates, 

times, and places of those hearings in 

the Federal Register and local 

newspapers at least 15 days prior to the 

first hearing. 

Clarity of the Rule 

Executive Order 12866 requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical jargon that interferes with the 

clarity? (3) Does the format of the 

proposed rule (grouping and order of 

the sections, use of headings, 

paragraphing, etc.) aid or reduce its 

clarity? (4) Is the description of the 

notice in the SUPPLEMENTARY

INFORMATION section of the preamble 

helpful in understanding the proposed 

rule? (5) What else could we do to make 

this proposed rule easier to understand? 

Send a copy of any comments on how 

we could make this proposed rule easier 

to understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may e-mail 

your comments to this address: 

Exsec@ios.doi.gov.

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or adversely 

affect the economy in a material way. 

Due to the timeline for publication in 

the Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. We are 

preparing a draft economic analysis of 

this proposed action. We will use this 

analysis to meet the requirement of 

section 4(b)(2) of the Act to determine 

the economic consequences of 

designating the specific areas as critical 

60734 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

habitat. This economic analysis also 

will be used to determine compliance 

with Executive Order 12866, Regulatory 

Flexibility Act, Small Business 

Regulatory Enforcement Fairness Act, 

and Executive Order 12630. 

This draft economic analysis will be 

made available for public review and 

comment before we finalize this 

designation. At that time, copies of the 

analysis will be available for 

downloading from the AZ Ecological 

Services Fish and Wildlife Service 

Office’s Internet website at http://

arizonaes.fws.gov or by contacting the 

AZ Ecological Services Office directly 

(see ADDRESSES section). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.)

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, we lack the available 

economic information necessary to 

provide an adequate factual basis for the 

required RFA finding. Therefore, the 

RFA finding is deferred until 

completion of the draft economic 

analysis prepared pursuant to section 

4(b)(2) of the Act and E.O. 12866. This 

draft economic analysis will provide the 

required factual basis for the RFA 

finding. Upon completion of the draft 

economic analysis, we will publish a 

notice of availability of the draft 

economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation for an additional 60 days. 

We will include with the notice of 

availability, as appropriate, an initial 

regulatory flexibility analysis or a 

certification that the rule will not have 

a significant economic impact on a 

substantial number of small entities 

accompanied by the factual basis for 

that determination. We have concluded 

that deferring the RFA finding until 

completion of the draft economic 

analysis is necessary to meet the 

purposes and requirements of the RFA. 

Deferring the RFA finding in this 

manner will ensure that we make a 

sufficiently informed determination 

based on adequate economic 

information and provides the necessary 

opportunity for public comment. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 802(2)) 

In the draft economic analysis, we 

will determine whether designation of 

critical habitat will cause (a) any effect 

on the economy of $100 million or 

more; (b) any increases in costs or prices 

for consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions; or (c) 

any significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211) on 

regulations that significantly affect 

energy supply, distribution, and use. 

Executive Order 13211 requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. This 

proposed rule to designate critical 

habitat for the southwestern willow 

flycatcher is considered a significant 

regulatory action under Executive Order 

12866 as it may raise novel legal and 

policy issues. However, this designation 

is not expected to significantly affect 

energy supplies, distribution, or use 

because there are no pipelines, 

distribution facilities, power grid 

stations, etc. within the boundaries of 

proposed critical habitat. Therefore, this 

action is not a significant energy action 

and no Statement of Energy Effects is 

required. We will, however, further 

evaluate this issue as we conduct our 

economic analysis and, as appropriate, 

review and revise this assessment as 

warranted. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute or regulation that would impose 

an enforceable duty upon State, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement.) ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance; or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities who receive Federal 

funding, assistance, or permits or who 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments. As such, Small 

Government Agency Plan is not 

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60735

required. We will, however, further 

evaluate this issue as we conduct our 

economic analysis and, as appropriate, 

review and revise this assessment as 

warranted. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), this 

rule is not anticipated to have 

significant takings implications. A 

takings implication assessment is not 

required. As discussed above, the 

designation of critical habitat affects 

only Federal actions. Although private 

parties that receive Federal funding, 

assistance, or require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Due to current public 

knowledge of the species protections 

and the prohibition against take of the 

species both within and outside of the 

proposed areas we do not anticipate that 

property values will be affected by the 

critical habitat designation. However, 

we have not yet completed the 

economic analysis for this proposed 

rule. Once the economic analysis is 

available, we will review and revise this 

preliminary assessment as warranted.

Federalism 

In accordance with Executive Order 

13132, this rule does not have 

significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior policies, we requested 

information from and coordinated 

development of this proposed critical 

habitat designation with appropriate 

State resource agencies in all affected 

states. 

The proposed designation of critical 

habitat in areas currently occupied by 

southwestern willow flycatcher imposes 

no additional significant restrictions 

beyond those currently in place and, 

therefore, has little incremental impact 

on State and local governments and 

their activities. The proposed 

designation of critical habitat may have 

some benefit to the State and local 

resource agencies in that the areas 

essential to the conservation of this 

species are more clearly defined, and 

the primary constituent elements of the 

habitat necessary to the conservation of 

this species are specifically identified. 

While this definition and identification 

does not alter where and what federally 

sponsored activities may occur, it may 

assist local governments in long-range 

planning (rather than waiting for caseby-case section 7 consultations to 

occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Department of the Interior’s 

Office of the Solicitor has determined 

that this rule does not unduly burden 

the judicial system and does meet the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We are proposing to 

designate critical habitat in accordance 

with the provisions of the Act. The rule 

uses standard property descriptions and 

identifies the primary constituent 

elements within the designated areas to 

assist the public in understanding the 

habitat needs of southwestern willow 

flycatcher. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This proposed rule does not contain 

new or revised information collection 

for which OMB approval is required 

under the Paperwork Reduction Act. An 

agency may not conduct or sponsor, and 

a person is not required to respond to, 

a collection of information unless it 

displays a currently valid OMB control 

number. 

National Environmental Policy Act 

(NEPA) 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). This assertion was 

upheld in the courts of the Ninth Circuit 

(Douglas County v. Babbitt, 48 F.3d 

1495 (9th Cir. Ore. 1995), cert. denied 

116 S. Ct. 698 (1996). However, when 

the range of the species includes States 

within the Tenth Circuit, such as that of 

the southwestern willow flycatcher, 

pursuant to the Tenth Circuit ruling in 

Catron County Board of Commissioners

v. U.S. Fish and Wildlife Service, 75 

F.3d 1429 (10th Cir. 1996), we will 

undertake a NEPA analysis for critical 

habitat designation and notify the 

public of the availability of the draft 

environmental assessment for this 

proposal when it is finished. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are Tribal 

lands essential for the conservation of 

southwestern willow flycatcher and 

have sought government-to-government 

consultation with these Tribes during 

the scoping process under the NEPA 

compliance portion of this process. We 

will continue to seek consultation 

during the development of the final 

critical habitat designation. 

References Cited 

A complete list of all references cited 

herein, as well as others, is available 

upon request from the AZ Ecological 

Services Fish and Wildlife Service 

Office (see ADDRESSES section). 

Author 

The primary authors of this notice are 

the AZ Ecological Services Office staff 

(see ADDRESSES section).

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and record 

keeping requirements, Transportation.

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations 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.

2. Amend § 17.95(b), by revising 

critical habitat for the southwestern 

willow flycatcher (Empidonax trailli 

extimus) in the same alphabetical order 

as the species occurs in 17.11(h) to read 

as follows:

§ 17.95 Critical habitat—Birds.

* * * * *

(b) Birds.

* * * * *

Southwestern Willow Flycatcher 

(1) Critical habitat units are depicted 

for (add counties, states) on the maps 

and as described below. 

(2) The primary constituent elements 

of critical habitat for southwestern 

willow flycatcher are: 

(i) Nesting habitat with trees and 

shrubs that include, but are not limited 

to, willow species and boxelder; 

60736 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(ii) Dense riparian vegetation with 

thickets of trees and shrubs ranging in 

height from 2 m to 30 m (6 to 98 ft) with 

lower-stature thickets of (2–4 m or 6–13 

ft tall) found at higher elevation riparian 

forests and tall-stature thickets found at 

middle- and lower-elevation riparian 

forests; 

(iii) Areas of dense riparian foliage at 

least from the ground level up to 

approximately 4 m (13 ft) above ground 

or dense foliage only at the shrub level, 

or as a low, dense tree canopy; 

(iv) Sites for nesting that contain a 

dense tree and/or shrub canopy (the 

amount of cover provided by tree and 

shrub branches measured from the 

ground) (i.e., a tree or shrub canopy 

with densities ranging from 50 percent 

to 100 percent); 

(v) Dense patches of riparian forests 

that are interspersed with small 

openings of open water or marsh or 

shorter/sparser vegetation, that creates a 

mosaic that is not uniformly dense. 

Patch size may be as small as 0.1 ha 

(0.25 ac) or as large as 70 ha (175 ac); 

and 

(vi) A variety of insect prey 

populations, including but not limited 

to, wasps and bees (Hymenoptera); flies 

(Diptera); beetles (Coleoptera); 

butterflies/moths and caterpillars 

(Lepidoptera); and spittlebugs 

(Homoptera). 

(4) Index map for southwestern 

willow flycatcher critical habitat 

follows: 

BILLING CODE 4310–55–P

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60737

(5) Santa Ynez Management Unit.


EP12oc04.000</GPH>
60738 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Santa Ynez River ..................................................................... 34.5972867 ¥120.1744120 34.6596711 ¥120.4394929 

(ii) Map 1—Santa Ynez Management 

Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60739

(6) Santa Ana Management Unit.


EP12OC04.001</GPH>
60740 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Bear Creek ............................................................................... 34.1609938 ¥117.0159635 34.2422368 ¥116.9781483 

Mill Creek ................................................................................. 34.0766808 ¥116.8452498 34.0911325 ¥117.1197798 

Oak Glen Creek ....................................................................... 34.0386537 ¥117.0654996 34.0483711 ¥116.9403286 

San Timoteo Wash .................................................................. 34.0044332 ¥117.1665810 34.0696755 ¥117.2814779 

Santa Ana River ...................................................................... 34.1513289 ¥116.7359315 33.9673435 ¥117.4534886 

Waterman Creek ...................................................................... 34.2170016 ¥117.2918024 34.1863762 ¥117.2729851 

Wilson Creek ........................................................................... 34.0102978 ¥117.1083328 34.0386336 ¥117.0654804 

Yucaipa Creek ......................................................................... 34.0103220 ¥117.1083693 34.0044334 ¥117.1665346 

(ii) Map 2—Santa Ana Management 

Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60741

(7) San Diego Management Unit.


EP12OC04.002</GPH>
60742 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Christianitos Creek .................................................................. 33.4202584 ¥117.5720194 33.4703241 ¥117.5652620 

San Mateo Creek ..................................................................... 33.4193353 ¥117.5378243 33.3854992 ¥117.5943532 

San Onofre Creek .................................................................... 33.3947909 ¥117.5262105 33.3808217 ¥117.5792417 

(ii) Map 3—San Diego Management 

Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60743

(8) San Diego Management Unit.


EP12OC04.003</GPH>
60744 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Deluz Creek ............................................................................. 33.3631922 ¥117.3242455 33.4284196 ¥117.3223795 

Las Flores Creek ..................................................................... 33.3387002 ¥117.4124815 33.2918772 ¥117.4668791 

Las Pulgas Creek .................................................................... 33.3612402 ¥117.3914457 33.3386642 ¥117.4124221 

Pilgrim Creek ........................................................................... 33.2412706 ¥117.3367781 33.3115967 ¥117.2990787 

San Luis Rey River .................................................................. 33.2026402 ¥117.3910088 33.2408399 ¥116.7655497 

Santa Margarita River .............................................................. 33.4331379 ¥117.1985136 33.2327182 ¥117.4180318 

Temecula Creek ...................................................................... 33.4982611 ¥116.9782596 33.3637516 ¥116.7600635 

(ii) Map 4—San Diego Management 

Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60745

(9) San Diego/Salton Management 

Units.


EP12OC04.004</GPH>
60746 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Agua Hedionda Creek ............................................................. 33.1568410 ¥117.2250596 33.1394750 ¥117.3159212 

Agua Hedionda Lagoon ........................................................... 33.1397064 ¥117.3159478 33.1426752 ¥117.3419973 

Cuyamaca Reservoir ............................................................... 32.9898162 ¥116.5879651 32.9922747 ¥116.5634781 

San Dieguito River ................................................................... 32.9767440 ¥117.2526692 33.0908002 ¥116.9654719 

San Felipe Creek ..................................................................... 33.1455448 ¥116.5456904 33.1848494 ¥116.6246895 

Santa Ysabel River .................................................................. 33.1185131 ¥116.7874089 33.0909698 ¥116.9655281 

emescal Creek ......................................................................... 33.2308658 ¥116.8260437 33.1203488 ¥116.8536884 

(ii) Map 5—San Diego/Salton 

Management Units.

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60747

(10) San Diego Management Unit.


EP12OC04.005</GPH>
60748 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

San Diego River ...................................................................... 32.8847561 ¥116.8120723 32.8281786 ¥117.0527488 

(ii) Map 6—San Diego Management 

Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60749

(11) Owens Management Unit.


EP12OC04.006</GPH>
60750 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Owens River ............................................................................ 37.5877424 ¥118.6992268 37.1354380 ¥118.2419417 

(ii) Map 7—Owens Management Unit 

follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60751

(12) Kern Management Unit.


EP12OC04.007</GPH>
60752 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Kern River—South Fork .......................................................... 35.7176912 ¥118.1808882 35.6629518 ¥118.3705422 

(ii) Map 8—Kern Management Unit 

follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60753

(13) Mohave Management Unit.


EP12OC04.008</GPH>
60754 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Deep Creek .............................................................................. 34.2871507 ¥117.1278400 34.3404367 ¥117.2465670 

Holcomb Creek ........................................................................ 34.2870806 ¥117.1278675 34.3049507 ¥116.9655144 

Mojave River ............................................................................ 34.4701947 ¥117.2546695 34.5838662 ¥117.3374023 

(ii) Map 9—Mohave Management Unit 

follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60755

(14) Little Colorado Management 

Unit.

60756 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Little Colorado River—East Fork ............................................. 34.0035647 ¥109.4568366 33.9313670 ¥109.4872878 

Little Colorado River—South Fork ........................................... 34.0881263 ¥109.4174754 34.0423434 ¥109.3856370 

Little Colorado River—West Fork ............................................ 34.0868020 ¥109.3970042 33.9596767 ¥109.5075668 

(ii) Map 10—Little Colorado 

Management Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60757

(15) Middle Colorado Management 

Unit.


EP12OC04.010</GPH>
60758 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Colorado River ......................................................................... 35.8443526 ¥113.6159408 36.1159593 ¥114.0033871 

(ii) Map 11—Middle Colorado 

Management Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60759

(16) Virgin/Pahranagat Management 

Units.


EP12OC04.011</GPH>
60760 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Muddy River ............................................................................. 36.5140075 ¥114.4123629 36.5336836 ¥114.4343674 

Virgin River—West .................................................................. 37.1329239 ¥113.4229921 36.5346429 ¥114.3354008 

(ii) Map 12—Virgin/Pahranagat 

Management Units follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60761

(17) Pahranagat Management Unit.


EP12OC04.012</GPH>
60762 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Pahranagat River—Lower ....................................................... 37.3124639 ¥115.1330109 37.1922659 ¥115.0364699 

Pahranagat River—Upper ....................................................... 37.5845160 ¥115.2202901 37.5328633 ¥115.2273109 

(ii) Map 13—Pahranagat Management 

Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60763

(18) Bill Williams Management Unit.


EP12OC04.013</GPH>
60764 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Upper Alamo Lake* ................................................................. 34.3829524 ¥113.5559941 34.2842321 ¥113.5495648 

Upper Alamo Lake* ................................................................. 34.2998343 ¥113.4512025 

Upper Big Sandy River ............................................................ 34.4796522 ¥113.6186975 34.9112373 ¥113.6225226 

* Upper Alamo Lake is a Y-shaped complex. 

(ii) Map 14—Bill Williams 

Management Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60765


EP12OC04.014</GPH>
60766 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(19) Hoover-Parker/Bill Williams/

Parker-Southerly International 

Boundary Management Unit. 

(i)

River Start latitude Start longitude End latitude End longitude 

Bill Williams River .................................................................... 34.2526452 ¥113.9402190 34.3034350 ¥114.1201040 

Lower Colorado River—North ................................................. 35.0091810 ¥114.6338947 34.3011066 ¥114.1382349 

Lower Colorado River—South (upper) .................................... 34.3010813 ¥114.1381195 34.1552145 ¥114.3033009 

(ii) Map 15—Hoover-Parker/Bill 

Williams/Parker-Southerly International 

Boundary Management Units follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60767

(20) Parker-Southerly International 

Border.


EP12OC04.015</GPH>
60768 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Lower Colorado River—South (lower) ..................................... 33.2285723 ¥114.6765900 32.7561894 ¥114.5267206 

(ii) Map 16—Parker-Southerly 

International Border follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60769

(21) Verde Management Unit.


EP12OC04.016</GPH>
60770 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Verde—Lower .......................................................................... 33.7743970 ¥111.6633289 33.7142058 ¥111.6531705 

Verde—Middle ......................................................................... 34.2843094 ¥111.6725753 33.9448968 ¥111.6823831 

Verde—Upper .......................................................................... 34.4659344 ¥111.7813345 34.7507638 ¥112.0175752 

(ii) Map 17—Verde Management Unit 

follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60771

(22) Roosevelt Management Unit.


EP12oc04.017</GPH>
60772 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Pinto Creek .............................................................................. 33.6319457 ¥111.0001427 33.3993235 ¥111.0238060 

Roosevelt Lake ........................................................................ 33.7665032 ¥111.2500069 33.6318096 ¥110.9665008 

Salt River ................................................................................. 33.6709319 ¥110.8009912 33.6317484 ¥110.9653018 

Tonto Creek ............................................................................. 33.7672729 ¥111.2499979 34.0240732 ¥111.2823461 

(ii) Map 18—Roosevelt Management 

Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60773

(23) Middle Gila/San Pedro 

Management Unit.


EP12oc04.018</GPH>
60774 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Middle and Lower San Pedro River ........................................ 32.9813209 ¥110.7787941 32.2524908 ¥110.3351882 

Middle Gila River ..................................................................... 33.0828336 ¥110.7093399 33.0999487 ¥111.2463066 

(ii) Map 19—Middle Gila/San Pedro 

Management Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60775

(24) Upper Gila Management Unit.


EP12oc04.019</GPH>
60776 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Upper Gila River ...................................................................... 33.0767407 ¥108.4911633 32.7238876 ¥109.1012460 

(ii) Map 20—Upper Gila Management 

Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60777

(25) Upper Gila Management Unit.


EP12OC04.020</GPH>
60778 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Gila River—East ...................................................................... 32.8823856 ¥109.5068860 33.2039473 ¥110.2520317 

Gila River—West ..................................................................... 33.1770897 ¥110.5285400 33.1894940 ¥110.4710587 

(ii) Map 21—Upper Gila Management 

Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60779

(26) San Luis Valley Management 

Unit.


EP12OC04.021</GPH>
60780 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Conejos River .......................................................................... 37.2938417 ¥105.7433505 37.1009161 ¥106.0030246 

Rio Grande—Upper ................................................................. 37.0784038 ¥105.7565938 37.6808883 ¥106.3352071 

(ii) Map 22—San Luis Valley 

Management Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60781

(27) Upper Rio Grande Management 

Unit.


EP12OC04.022</GPH>
60782 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Coyote Creek ........................................................................... 36.1939559 ¥105.2308813 36.1229132 ¥105.2175662 

Rio Grande—Middle ................................................................ 35.8746413 ¥106.1405919 36.3361484 ¥105.7338054 

Rio Grande del Rancho ........................................................... 36.2547823 ¥105.5796721 36.3386111 ¥105.6010574 

(ii) Map 23—Upper Rio Grande 

Management Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60783

(28) Middle Rio Grande Management 

Unit.


EP12OC04.023</GPH>
60784 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(i)

River Start latitude Start longitude End latitude End longitude 

Rio Grande—Lower ................................................................. 33.6064073 ¥107.0328265 35.1641318 ¥106.6627928 

(ii) Map 24—Middle Rio Grande 

Management Unit follows:

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60785


EP12OC04.024</GPH>
60786 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

Dated: September 30, 2004. 

Julie MacDonald, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks.

[FR Doc. 04–22394 Filed 10–8–04; 8:45 am] 

BILLING CODE 4310–55–C