[Federal Register Volume 69, Number 196 (Tuesday, October 12, 2004)]
[Proposed Rules]
[Pages 60706-60786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22394]



[[Page 60705]]

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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

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

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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.

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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 
<a href="/cdn-cgi/l/email-protection#e5928c8389868a8888808b9196a5839296cb828a93"><span class="__cf_email__" data-cfemail="66110f000a05090b0b030812152600111548010910">[email protected]</span></a>. 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: ``mission-critical'' 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;

[[Page 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, 
<a href="/cdn-cgi/l/email-protection#4f382629232c2022222a213b3c0f29383c61282039"><span class="__cf_email__" data-cfemail="8afde3ece6e9e5e7e7efe4fef9caecfdf9a4ede5fc">[email protected]</span></a>, 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

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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

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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

[[Page 60710]]

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.

[[Page 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 non-governmental 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

[[Page 60712]]

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

[[Page 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.

[[Page 60714]]

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 non-native 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

[[Page 60715]]

Hymenoptera, Diptera, and Hemiptera (true bugs) comprising half of the 
prey items. Willow flycatchers also took non-flying species, 
particularly Lepidoptera larvae. From an analysis of southwestern 
willow flycatcher diet along the South Fork of the Kern River, CA 
(Drost et al. 2003), flycatchers consumed a variety of prey from 12 
different insect groups. Willow flycatchers have been identified 
targeting seasonal hatchings of aquatic insects along the Salt River 
arm of Roosevelt Lake, AZ (E. Paxton, USGS, e-mail).

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

[[Page 60716]]

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 non-
breeding flycatchers, migratory habitat, regenerating habitat, streams, 
elevated groundwater tables, moist soils, flying insects, and other 
alluvial floodplain habitats, etc.) adjacent to or between sites, along 
with the dynamic process of riparian vegetation succession and river 
hydrology, provide current and future habitat for the flycatcher which 
is dependent upon vegetation succession. As a result, these segments 
represent the boundaries within which flycatcher habitat of all types 
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 run-off, 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,

[[Page 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.

[[Page 60718]]

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    19,525 (7,901)/24 (39)..........        6,893  None.
 Riverside County Multiple Species                                          (2792)/73
 Habitat Conservation Plan; San Diego                                           (116)
 Multiple Species Conservation
 Program; Draft City of Carlsbad
 Habitat Management Plan; Roosevelt
 Lake HCP).
Department of Defense Lands: (The       None............................        4,020  None.
 Marine Corps Base, Camp Pendleton;                                         (1626)/41
 Seal Beach Naval Weapons Station,                                               (69)
 Fallbrook Detachment).
----------------------------------------------------------------------------------------------------------------

    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     19,525 (7,901)/24  157,665 (63,776)/520
                                                               (801)                  (39)                 (840)
AZ-CA*........................................            /134 (214)                /0 (0)            /134 (214)
CA............................................   60,359 (24,406)/340    10,913 (4,418)/114   71,272 (28,824)/454
                                                               (550)                 (185)                 (735)
CO............................................   68,430 (27,694)/116           0 (0)/0 (0)   68,430 (27,694)/116
                                                               (185)                                       (185)
NM............................................   63,804 (25,791)/257           0 (0)/0 (0)   63,804 (25,791)/257
                                                               (414)                                       (414)
NV............................................     11,948 (4,834)/46           0 (0)/0 (0)     11,948 (4,834)/46
                                                                (74)                                        (74)
UT............................................      2,976 (1,205)/28           0 (0)/0 (0)      2,976 (1,205)/28
                                                                (44)                                        (44)
    Total.....................................    345,657 (139,805)/   30,438 (12,319)/138    376,095 (152,124)/
                                                       1,417 (2,282)                 (224)         1,555 (2,506)
                                                                     ----------------------
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
AZ............................................       96,615 (39,082)        10,640 (4,304)       50,410 (20,390)
CA............................................        17,876 (7,224)        11,759 (4,757)                 0 (0)
CO............................................         7,969 (3,224)           1,425 (579)       59,036 (23,891)
NM............................................        24,119 (9,751)              246 (99)       39,439 (15,941)
NV............................................         5,680 (2,298)              160 (66)         4,090 (1,653)
UT............................................             482 (196)               25 (10)           2,469 (999)
    Totals....................................      15,2741 (61,775)        24,255 (9,815)      155,444 (62,874)
                                                                     -------------------------------------------

[[Page 60719]]

 
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.
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 government-
 managed 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.
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.
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.
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

[[Page 60720]]

the two known breeding sites on the Santa Margarita River. No
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.
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.
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.
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.
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.
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

[[Page 60721]]

were detected on this stream segment. In 2002, two territories were
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 government-managed
 lands, and 8 percent are on Tribal lands
 (USFWS 2002: 64). Habitat characteristics
 range from purely native (including high-
 elevation and low-elevation willow) to exotic
 (primarily tamarisk) dominated stands (USFWS
 2002: 64). This Recovery Unit contains the
 Little Colorado, Middle Colorado, Virgin,
 Pahranagat, Bill Williams, Hoover to Parker,
 and Parker to Southerly International Border
 Management units.
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).
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.
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.
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.
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.
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

[[Page 60722]]

Havasu National Wildlife Refuge in Mohave and La Paz County, AZ, and
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.
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 exotic-dominated (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.
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).
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

[[Page 60723]]

Flycatcher Recovery Team believed that such events were compatible with
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.
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, off-channel
 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.
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; exotic-dominated 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.
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.
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.
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

[[Page 60724]]

segments, the middle Rio Grande has been determined to be of additional
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.
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

[[Page 60725]]

 
 
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.
 
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.
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.
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,

[[Page 60726]]

 
and provides regulatory certainty for HCP and
 Nnother 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 long-term
 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.
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.
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.

[[Page 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.
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.
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.
 
 
          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).

[[Page 60728]]

 
          (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.
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 mission-essential 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 mission-
 essential 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.
 
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

[[Page 60729]]

and loss of habitat would occur over the life of the HCP. Flycatcher
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 on-the-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 long-term
 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.
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.
 
 
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.

[[Page 60730]]

 
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.
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.
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.
 
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.
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

[[Page 60731]]

Southwestern Willow Flycatcher Management Plan, which describes the
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 self-government.
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.
 
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.
 
The Lower Colorado River Multi-Species
 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.
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.

[[Page 60732]]

 
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, micro-habitat
   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

[[Page 60733]]

site-specific evaluation (through an analysis of on the ground features
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).3,L2,tp0,i1,s50,r100,16
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
So. California................................    2730 Locker Avenue        (760) 431-9440
                                                  West, Carlsbad, CA
                                                               92009
Central Coastal CA............................    2493 Portola Road,        (805) 644-1766
                                                Suite B, Ventura, CA
                                                               93003
Central California............................     2800 Cottage Way,        (916) 414-6600
                                                Sacramento, CA 95821
Nevada........................................     1510 Decatur, Las        (702) 515-5230
                                                     Vegas, NV 89108
Utah..........................................       2369 West Orton        (801) 975-3330
                                                 Circle, West Valley
                                                      City, UT 84119
Colorado......................................    764 Horizon Dr. S.        (970) 243-2788
                                                    Annex A-Bldg. B,
                                                  Grand Junction, CO
                                                               81506
AZ............................................    2321 W. Royal Palm        (602) 242-0210
                                                      Road Ste. 103,
                                                   Phoenix, AZ 85021
NM............................................   2105 Osuna Rd. NE.,        (505) 761-4718
                                                     Albuquerque, NM
                                                               87113
----------------------------------------------------------------------------------------------------------------

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial 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: <a href="/cdn-cgi/l/email-protection#9edbe6edfbfddef7f1edb0faf1f7b0f9f1e8"><span class="__cf_email__" data-cfemail="bcf9c4cfd9dffcd5d3cf92d8d3d592dbd3ca">[email protected]</span></a>.

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

[[Page 60734]]

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 non-Federal 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

[[Page 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 case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and 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 Sec.  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:


Sec.  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;

[[Page 60736]]

    (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

[[Page 60737]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.000

    (5) Santa Ynez Management Unit.

[[Page 60738]]

    (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:

[[Page 60739]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.001

    (6) Santa Ana Management Unit.

[[Page 60740]]

    (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:

[[Page 60741]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.002

    (7) San Diego Management Unit.

[[Page 60742]]

    (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:

[[Page 60743]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.003

    (8) San Diego Management Unit.

[[Page 60744]]

    (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:

[[Page 60745]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.004

    (9) San Diego/Salton Management Units.

[[Page 60746]]

    (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.

[[Page 60747]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.005

    (10) San Diego Management Unit.

[[Page 60748]]

    (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:

[[Page 60749]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.006

    (11) Owens Management Unit.

[[Page 60750]]

    (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:

[[Page 60751]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.007

    (12) Kern Management Unit.

[[Page 60752]]

    (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:

[[Page 60753]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.008

    (13) Mohave Management Unit.

[[Page 60754]]

    (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:

[[Page 60755]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.009

    (14) Little Colorado Management Unit.

[[Page 60756]]

    (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:

[[Page 60757]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.010

    (15) Middle Colorado Management Unit.

[[Page 60758]]

    (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:

[[Page 60759]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.011

    (16) Virgin/Pahranagat Management Units.

[[Page 60760]]

    (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:

[[Page 60761]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.012

    (17) Pahranagat Management Unit.

[[Page 60762]]

    (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:

[[Page 60763]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.013

    (18) Bill Williams Management Unit.

[[Page 60764]]

    (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:

[[Page 60765]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.014


[[Page 60766]]


    (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:

[[Page 60767]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.015

    (20) Parker-Southerly International Border.

[[Page 60768]]

    (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:

[[Page 60769]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.016

    ?>(21) Verde Management Unit.

[[Page 60770]]

    (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:

[[Page 60771]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.017

    (22) Roosevelt Management Unit.

[[Page 60772]]

    (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:

[[Page 60773]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.018

    (23) Middle Gila/San Pedro Management Unit.

[[Page 60774]]

    (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:

[[Page 60775]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.019

    (24) Upper Gila Management Unit.

[[Page 60776]]

    (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:

[[Page 60777]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.020

    (25) Upper Gila Management Unit.

[[Page 60778]]

    (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:

[[Page 60779]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.021

    (26) San Luis Valley Management Unit.

[[Page 60780]]

    (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:

[[Page 60781]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.022

    (27) Upper Rio Grande Management Unit.

[[Page 60782]]

    (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:

[[Page 60783]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.023

    (28) Middle Rio Grande Management Unit.

[[Page 60784]]

    (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:

[[Page 60785]]

[GRAPHIC] [TIFF OMITTED] TP12OC04.024



[[Page 60786]]


    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


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