60886 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT88 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Southwestern Willow 

Flycatcher (Empidonax traillii extimus) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

designating critical habitat for the 

southwestern willow flycatcher 

(Empidonax traillii extimus) pursuant to 

the Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

48,896 hectares (ha) (120,824 acres (ac)) 

or 1,186 kilometers (km) (737 miles 

(mi)) fall within the boundaries of the 

critical habitat designation. The critical 

habitat is located in Apache, Cochise, 

Gila, Graham, Greenlee, Maricopa, 

Mohave, Pinal, Pima, and Yavapai 

counties in Arizona (AZ), Kern, Santa 

Barbara, San Bernardino, and San Diego 

counties in southern California (CA), 

Clark County in southeastern Nevada 

(NV), Grant, Hidalgo, Mora, Rio Arriba, 

Soccoro, Taos, and Valencia counties in 

New Mexico (NM), and Washington 

County in Southwestern Utah (UT). 

DATES: This rule is effective November 

18, 2005. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, are available for public 

inspection, by appointment, during 

normal business hours at the AZ 

Ecological Services Office, U.S. Fish and 

Wildlife Service, 2321 West Royal Palm, 

Suite 103, Phoenix, AZ 85021 

(telephone 602/242–0210). The final 

rule, final environmental analysis, final 

economic analysis, and maps are 

available via the Internet at http:// 

www.fws.gov/arizonaes. 

FOR FURTHER INFORMATION CONTACT: For 

information about Santa Barbara County 

in CA, contact Diane K. Noda, Field 

Supervisor, Ventura Fish and Wildlife 

Office, 2493 Portola Road, Suite B, 

Ventura, CA, 93003 (telephone 805/ 

644–1766; facsimile 805/644–3958). For 

information about San Bernardino or 

San Diego Counties in CA, contact Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office, 6010 Hidden Valley 

Road, Carlsbad, CA 92011 (telephone 

760/431–9440; facsimile 760/431–9624). 

For information about Kern County in 

CA, contact Wayne White, Field 

Supervisor, Sacramento Fish and 

Wildlife Office, 2800 Cottage Way, 

Room W–2605, Sacramento, CA 95825 

(telephone 916/414–6600; facsimile 

916/414–6713). For information about 

Grant, Hidalgo, Mora, Rio Arriba, 

Soccoro, Taos, or Valencia Counties in 

NM, contact Susan MacMullin, Field 

Supervisor, NM Fish and Wildlife 

Service Office, 2105 Osuna Road NE, 

Albuquerque, NM 87113 (telephone 

505/346–2525; facsimile 505/346–2542). 

For information about Clark County in 

NV, contact Cynthia Martinez, Field 

Supervisor, Las Vegas Fish and Wildlife 

Service Office, 4701 North Torrey Pines 

Drive, Las Vegas, NV 89130 (telephone 

702/515–5230; facsimile 702/515–5231. 

For information about Washington 

County in UT, contact Henry Maddux, 

Field Supervisor, Salt Lake City Fish 

and Wildlife Service Office, 2369 West 

Orton Circle, Suite 50, West Valley City, 

UT 84119 (telephone 801/975–3330; 

facsimile 801/975–3331). For 

information about Apache, Cochise, 

Gila, Graham, Greenlee, Maricopa, 

Mohave, Pinal, Pima, or Yavapai 

Counties in AZ, contact Steve Spangle, 

Field Supervisor, AZ Fish and Wildlife 

Service Office, 2321 West Royal Palm, 

Suite 103, Phoenix, AZ 85021 

(telephone 602/242–0210; facsimile 

602/242–2513). 

SUPPLEMENTARY INFORMATION: 

Designation of Critical Habitat Provides 

Little Additional Protection to Species 

In 30 years of implementing the Act, 

the Service has found that the 

designation of statutory critical habitat 

provides little additional protection to 

most listed species, while consuming 

significant amounts of available 

conservation resources. The Service’s 

present system for designating critical 

habitat has evolved since its original 

statutory prescription into a process that 

provides little real conservation benefit, 

is driven by litigation and the courts 

rather than biology, limits our ability to 

fully evaluate the science involved, 

consumes enormous agency resources, 

and imposes huge social and economic 

costs. The Service believes that 

additional agency discretion would 

allow our focus to return to those 

actions that provide the greatest benefit 

to the species most in need of 

protection. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

While attention to and protection of 

habitat is paramount to successful 

conservation actions, we have 

consistently found that, in most 

circumstances, the designation of 

critical habitat is of little additional 

value for most listed species, yet it 

consumes large amounts of conservation 

resources. Sidle (1987) stated, ‘‘Because 

the Act can protect species with and 

without critical habitat designation, 

critical habitat designation may be 

redundant to the other consultation 

requirements of section 7.’’ Currently, 

only 466 species or 37 percent of the 

1,268 listed species in the U.S. under 

the jurisdiction of the Service have 

designated critical habitat. 

We address the habitat needs of all 

1,268 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

section 4 recovery planning process, the 

section 9 protective prohibitions of 

unauthorized take, section 6 funding to 

the States, and the section 10 incidental 

take permit process. The Service 

believes that it is these measures that 

may make the difference between 

extinction and survival for many 

species. 

We note, however, that two courts 

found our definition of adverse 

modification to be invalid (March 15, 

2001, decision of the United States 

Court Appeals for the Fifth Circuit, 

Sierra Club v. U.S. Fish and Wildlife 

Service et al., F.3d 434 and the August 

6, 2004, Ninth Circuit judicial opinion, 

Gifford Pinchot Task Force v. United 

State Fish and Wildlife Service). In 

response to these decisions, we are 

reviewing the regulatory definition of 

adverse modification in relation to the 

conservation of the species. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60887 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of court 

ordered designations have left the 

Service with almost no ability to 

provide for adequate public 

participation or to ensure a defect-free 

rulemaking process before making 

decisions on listing and critical habitat 

proposals due to the risks associated 

with noncompliance with judiciallyimposed deadlines. This in turn fosters 

a second round of litigation in which 

those who fear adverse impacts from 

critical habitat designations challenge 

those designations. The cycle of 

litigation appears endless, is very 

expensive, and in the final analysis 

provides relatively little additional 

protection to listed species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects, the cost of requesting 

and responding to public comment, and 

in some cases the costs of compliance 

with the National Environmental Policy 

Act (NEPA). None of these costs result 

in any benefit to the species that is not 

already afforded by the protections of 

the Act enumerated earlier, and they 

directly reduce the funds available for 

direct and tangible conservation actions. 

Background 

Background information on the 

southwestern willow flycatcher can be 

found in our proposal of critical habitat 

for the southwestern willow flycatcher, 

published in the Federal Register on 

October 12, 2004 (69 FR 60706); the 

Southwestern Willow Flycatcher 

Recovery Plan (USFWS 2002); our 

previous designation of critical habitat 

for this species, published on July 22, 

1997 (62 FR 39129), and August 20, 

1997 (62 FR 44228); and the final rule 

listing this bird as endangered (February 

27, 1995; 60 FR 10694). That 

information is incorporated by reference 

into this final rule. This rule becomes 

effective on the date listed under DATES

at the beginning of this document, and 

replaces the July 22, 1997, critical 

habitat designation for this species that 

was set aside pursuant to a court order 

on May 11, 2001. 

Previous Federal Actions 

Previous Federal actions for the 

southwestern willow flycatcher can be 

found in our proposal of critical habitat 

for the southwestern willow flycatcher 

published on October 12, 2004 (69 FR 

60706). That information is 

incorporated by reference into this final 

rule. 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of critical habitat for the southwestern 

willow flycatcher in the proposed rule 

published on October 12, 2004 (69 FR 

60706). The comment period was 

extended on December 13, 2004 (69 FR 

72161), and on March 31, 2005 (70 FR 

16474), resulting in the comment period 

being continuously open until May 31, 

2005. The comment period was reopened once more from July 7 to July 

18, 2005 (70 FR 39227). We contacted 

the appropriate Federal, State, and local 

agencies, Tribes, scientific 

organizations, elected officials, and 

other interested parties and invited 

them to comment on the proposed rule. 

We contacted these groups by letter, 

electronic mail, and/or post card at the 

time of publication of the proposed rule; 

at each extension of the comment 

period; when we announced the 

availability of the draft economic 

analysis, draft environmental 

assessment, and location of public 

hearings (70 FR 21988); and during reopening of the comment period (70 FR 

39227). Following publication of each 

Federal Register notice, we widely 

distributed news releases and posted 

them on the Internet. We also sent two 

newsletter updates to these groups 

during the rulemaking process to update 

them on the status of the proposal and 

associated documents. 

In addition, we invited public 

comment on the proposal through the 

publication of legal notices in 14 

regional newspapers announcing 8 

public hearings, 8 public information 

meetings, and the availability of the 

draft economic analysis and draft 

environmental assessment. These legal 

notices were published in the Arizona 

Republic, Silver City Daily Press, Santa 

Fe New Mexican, Grand Junction 

Sentinel, The Spectrum (St George, UT), 

Las Vegas Review Journal, Kern Valley 

Sun, The Bakersfield Californian, 

Riverside Press-Enterprise, San 

Bernardino Sun, San Diego Union 

Tribune, Albuquerque Journal, 

Albuquerque Tribune, and Valley 

Courier (Alamosa, CO). We published 

legal ads prior to NEPA scoping 

meetings and also when we announced 

the documents’ availability and the 

public hearings. 

We held public hearings and NEPA 

informational open houses at Escondido 

and Chino, CA (May 2–3, 2005); Las 

Vegas, NV, and Lake Isabella, CA (May 

9–10, 2005); and Mesa, AZ, Silver City, 

NM, Albuquerque, NM, and Alamosa, 

CO (May 16–19, 2005). We also 

contacted and sent press releases to 

news media in Arizona, New Mexico, 

Southern California, Southern Nevada, 

Southern Utah and Southern Colorado. 

Additional public information meetings 

were held in Camp Verde, AZ (February 

17, 2005—sponsored by the Verde 

Watershed Association); Albuquerque, 

NM (May 18, 2005—sponsored by 

Northern NM Pueblos), Bishop, CA 

(May 24, 2005—sponsored by Los 

Angeles Department of Water and 

Power), and Safford, AZ (July 7, 2005—

sponsored by Graham County). All 

comments and new information 

received during the open comment 

period have been incorporated into this 

final rule as appropriate. 

We received a total of 534 pieces of 

correspondence (e-mails, letters, and 

faxes) during the public comment 

periods. Of the 534 comment letters, 237 

were received from individuals, 164 

from government agencies, 31 from 21 

different tribes, 62 from organizations, 

and 40 from businesses. 

We received comments from each 

State represented in the proposed 

designation. We received 260 comments 

letters from AZ, 72 comment letters 

from CA, 64 from NM, 40 from CO, 8 

from NV, and 5 from UT. A total of 85 

were received from outside of these 

States or areas where critical habitat was 

proposed for designation. Comments 

from each piece of correspondence were 

identified, grouped by issue, and 

reviewed. 

Peer Review 

In accordance with our peer review 

policy published on July 1, 1994 (59 FR 

34270), we solicited independent 

opinions from at least three 

knowledgeable individuals who have 

expertise with the species, with the 

geographic region where the subspecies 

occurs, and/or familiarity with the 

principles of conservation biology. Of 

the seven individuals contacted, three 

responded. The peer reviewers that 

submitted comments generally 

supported the proposal and provided us 

with comments, which are included in 

the summary below and incorporated 

into the final rule, as appropriate. We 

received comments from the peer 

reviewers during the comment period 

on our proposed rule. 

Peer Review Comments 

(1) Comment: Peer reviewers 

commented that we made good use of 

the current data, published and gray 

literature, expert opinion, and the 

Recovery Plan (USFWS 2002). 

Our Response: We believe we have 

considered and applied to this 

designation the best available scientific 

60888 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

and commercial information regarding 

the southwestern willow flycatcher. 

(2) Comment: One peer reviewer 

commented that while we described in 

detail the dynamic aspects of flycatcher 

habitat, that dynamic component is not 

reflected in the primary constituent 

elements (PCEs). Limiting critical 

habitat to only where vegetation 

currently exists undermines the 

dynamic component of its habitat. 

Our Response: As we have described 

in the proposed rule and this final rule, 

the dynamic aspects of flycatcher 

habitat are an important component of 

its long-term suitability for nesting and 

the overall quality and presence of 

riparian vegetation. Because flycatchers 

commonly place nests in the dense 

riparian vegetation in early successional 

growth, recycling of habitat from natural 

disturbances (i.e., flooding) is necessary 

to promote dense growth. Germination 

and growth of riparian vegetation is 

essential. As a consequence of river 

dynamics and proximity to water, the 

location and/or condition of its habitat 

can change from one season to the next 

due to drought, flooding, or simple 

growth of vegetation. Our PCEs focused 

on the end result of all the components 

that culminate in the development of 

flycatcher habitat. We described those 

components (e.g., broad floodplain, 

surface water, fine sediments, 

hydrologic regime, channel-floodplain 

connectivity, elevated groundwater, 

etc.) in detail in the supporting text for 

the PCEs (69 FR 60712–60715). For 

example, we described in the Sites for 

Germination and Seed Dispersal 

section, the importance of appropriate 

floodplain conditions for the 

development, abundance, distribution, 

maintenance, and germination of 

flycatcher habitat, including features 

such as elevated groundwater, and fine/ 

moist soils for seed germination and 

insect production. 

As the peer reviewer mentioned, we 

described in great detail the dynamic 

aspects of flycatcher habitat location 

and growth in the proposed rule. 

However, we did not reflect the 

essential aspect of vegetation 

germination and growth (i.e., 

succession) that should accompany 

these PCEs. In order to more accurately 

reflect our proposal and the PCEs for the 

southwestern willow flycatcher, we 

have added a ‘‘successional’’ component 

to the PCEs. The Act requires that 

Federal action agencies consider and 

consult on actions that affect the PCEs. 

Thus, projects that impede the 

regeneration and/or growth of riparian 

vegetation, depending on the scope of 

the project, could result in an adverse 

affect to riparian habitat, thus requiring 

consultation under section 7 of the Act. 

(3) Comment: One peer reviewer 

commented, with respect to the PCEs, 

that flycatcher habitat is more than 

dense vegetation. Southwestern willow 

flycatchers require a mosaic of riparian 

vegetation in a variety of developmental 

(i.e., successional) stages. 

Our Response: We agree. 

Southwestern willow flycatcher habitat 

consists of riparian vegetation in a 

variety of growth stages used for a 

variety of life-history needs, such as 

foraging, migration, and dispersal. An 

area with dense vegetation for nest 

placement is the most defined structure 

and is captured in PCEs 1b through 1e. 

By emphasizing shorter/sparser 

vegetation, with a mosaic not uniformly 

dense as small as 0.1 ha (.25 ac), PCEs 

1a and 1e not only encompasses 

riparian plant species, but important 

habitats for breeding and foraging 

southwestern willow flycatchers, but 

also accounts for habitat for dispersing 

and migrating southwestern willow 

flycatchers. Also, on the basis of the 

issue raised in this comment, and the 

need for further clarification, we 

expanded PCE number 1 in this final 

rule to accurately reflect other lifehistory needs of the southwestern 

willow flycatcher (i.e., migration, 

dispersal, foraging, and shelter) fulfilled 

by riparian vegetation described in our 

proposed and final rules. However, we 

note that the methodology used for 

designating critical habitat for the 

southwestern willow flycatcher was 

based around nesting territories, and 

critical habitat is not being designated 

solely as an area that is used for 

migration, dispersal, foraging, and 

shelter. 

(4) Comment: Two peer reviewers 

remarked that extant, large populations 

of southwestern willow flycatchers are 

the most important assets for recovery. 

But excluding other locations with 

smaller populations may fall short in 

providing specific areas essential to the 

conservation of a listed species and that 

may require special management 

considerations. Management Units 

where recovery goals exist that are not 

represented in this designation were 

used as examples. 

Our Response: We recognize that 

there are locations and areas within the 

geographical area occupied by the 

southwestern willow flycatcher that 

were not proposed as critical habitat. 

We also agree with the comment that 

locations with smaller breeding 

populations or improvement of habitat 

conditions in areas with no breeding 

populations are important. However, 

section 3(5)(c) of the Act states that not 

all areas that can be occupied by a 

species should be designated as critical 

habitat unless the Secretary determines 

that all such areas are essential to the 

conservation of the species. As 

described below, the methodology used 

to define those areas that meet the 

definition of critical habitat focused on 

large populations that are in high 

connectivity to one another. Thus, while 

not all areas important for flycatcher 

recovery were proposed as critical 

habitat, we believe this designation 

defines those areas that are essential. 

We also acknowledge that while 

Recovery Plans formalize the recovery 

strategy for a species, they are not 

regulatory documents and that critical 

habitat can contribute to the overall 

recovery strategy for a listed species, but 

does not, by itself, achieve recovery 

plan goals. 

We encourage Federal and State 

agencies, Tribal governments, 

municipalities, private groups, and 

landowners to continue conducting 

surveys for flycatchers, protect and 

strive to improve smaller populations of 

flycatchers, and manage flycatcher 

habitat to create more populations in 

order to reach recovery. Because an area 

is not designated as critical habitat, does 

not mean it is not important for 

flycatcher recovery. 

(5) Comment: Two peer reviewers, 

who were involved with the 

development of the population viability 

analysis for the flycatcher, generally 

agreed that we interpreted the 

information correctly and appropriately 

identified 10 territories as a large 

population. One reviewer commented 

that, ‘‘the recommendation in the 

Recovery Plan with regard to 

metapopulation stability was based on a 

population viability analysis conducted 

to answer questions about the 

relationship between individual 

flycatcher sites and their relative 

importance to overall flycatcher 

population size. The emphasis in the 

Recovery Plan of the importance of large 

populations to metapopulation stability 

is based on the positive relationship 

between population size and 

colonization potential. The relationship 

however is non-linear with increase in 

colonization potential diminishing for 

growth above 10 territories and virtually 

disappearing for growth above 25 

territories. Given this, a biologically 

based break point of 10 territories to 

distinguish between large and small 

populations (sites) is appropriate.’’

Our Response: We recognize that the 

use of numbers and break points can be 

difficult, and also agree that we 

interpreted and used the data 

appropriately. 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60889 

(6) Comment: Peer reviewers 

generally agreed that our application of 

a 29 km (18 mi) radius, determined by 

the between-year movements recorded 

from banded southwestern willow 

flycatchers, was appropriate to delineate 

the limits of essential habitat and a high 

degree of connectivity between 

collections of smaller sites. However, 

two peer reviewers recognize that, given 

more time and with additional banding, 

survey, and monitoring efforts, it is 

likely that greater distance movements 

would be recorded more frequently. 

Our Response: We acknowledge the 

input provided by the reviewers with 

respect to longer movements, and note 

that the researchers have also provided 

this perspective. We understand that 

there are some between-year flycatcher 

movements that are very large (greater 

than 400 km/248 miles) (E. Paxton, 

USGS, e-mail). However, these 

movements, while important to 

understand the connection of 

populations, are not common. 

Populations located hundreds of 

kilometers (miles) apart would not 

likely be considered ‘‘highly’’

connected. Conversely, sites only a 

kilometer or so apart could hardly be 

considered a different site. From 1997 to 

2003, Paxton (USGS, e-mail) reported 

267 of 292 band recoveries occurred 

within 29 km (18 mi) of previous year’s 

location. Our approach with respect to 

use of the results of banding data, was 

to determine highly connected 

southwestern willow flycatcher sites in 

order to identify essential habitat and 

define population connectivity. We 

believe our interpretation of the data for 

the purposes used here was appropriate. 

(7) Comment: Peer reviewers 

supported using the survey results from 

the years 1993 to 2002 to develop this 

designation of critical habitat for the 

southwestern willow flycatcher. 

Our Response: The information 

collected throughout the bird’s range by 

the public and surveyors completing 

and submitting forms, and State and 

Federal agencies summarizing and 

cataloging these results in databases is 

invaluable. It is this quality and level of 

data that provides us the ability to 

develop the appropriate guidance 

documents and regulations pursuant to 

the Act that assist in the recovery of 

federally listed species such as the 

southwestern willow flycatcher. 

(8) Comment: Peer reviewers 

generally agreed that a lateral extent 

boundary tracking the extent of riparian 

vegetation within the 100-year 

floodplain was appropriate. 

Our Response: As one peer reviewer 

noted and we pointed out in the 

proposed rule, flycatcher habitat will 

change its location and condition within 

the 100-year floodplain due to events 

such as flooding, drought, and 

vegetation growth. Therefore, a lateral 

extent that reasonably captures the 

boundaries of that dynamic habitat 

movement, we believe, is appropriate. 

(9) Comment: One peer reviewer 

commented that rarely, flycatcher 

breeding habitat may persist outside of 

the 100-year floodplain in response to 

an artificial or man-made situation. 

Our Response: We are aware that 

infrequently, flycatcher breeding habitat 

and migratory habitat may occur in 

unusual locations outside the 

floodplain. There may also be more 

natural situations where flycatchers use 

upland habitat for nesting or foraging. 

However, we believe we captured 

essential areas across the bird’s range 

through our methodology as described 

in this rule. We point out, as the 

reviewer did, that direct or indirect 

adverse affects to those areas are still 

subject to consultation under section 7 

of the Act and those birds are still 

protected by the prohibitions set forth in 

section 9 of the Act. 

(10) Comment: One peer reviewer 

pointed out that there are significant 

anthropogenic influences throughout 

the bird’s range that help support 

southwestern willow flycatcher habitat 

which we did not elaborate on in the 

proposed rule. Because of that, there 

may be some confusion over what 

constitutes a ‘‘riparian developed’’ area. 

Our Response: As the peer reviewer 

noted, irrigation canals and/or 

agricultural run-off, among other things, 

can help develop and support flycatcher 

habitat. The Recovery Plan (USFWS 

2002: D–15) discussed that ‘‘* * * 

although some flycatcher breeding sites 

* * * are relatively un-impacted by 

human activities, most of the riparian 

vegetation patches in which the 

flycatcher breeds are supported by 

various types of supplemental water 

including agricultural and urban runoff, treated water outflow, irrigation or 

diversion ditches, reservoirs, and dam 

outflows. Although the water provided 

to these habitats might be considered 

‘‘artificial’’, they are often essential for 

maintaining the habitat in a suitable 

condition for breeding flycatchers. 

However, reliance on such water 

sources for riparian vegetation 

persistence may be problematic because 

the availability (in quantity, timing, and 

quality) is often subject to dramatic 

changes based on human use patterns; 

there is little guarantee that the water 

will be available over the long-term.’’

Our PCEs focused on the culmination 

of factors such as floodplain shape, 

soils, water, and groundwater elevation 

that resulted in vegetation and insects 

appropriate for southwestern willow 

flycatchers when they are breeding 

(flycatchers that are documented 

attempting to nest; breeding flycatchers 

are always territorial flycatchers), 

migrating (flycatchers traveling north to 

breeding grounds and south to 

wintering grounds), dispersing (youngof-the-year and adult flycatchers 

typically following nesting and prior to 

migration), territorial (flycatchers during 

the breeding season that defend a 

territory; territorial flycatchers often 

nest, however un-paired territorial birds 

may not), and non-breeding (flycatchers 

during a portion of or for the entire 

nesting season that do not defend a 

territory or attempt to nest; these birds 

can also be referred to as floaters). 

Anthropogenic (i.e., man-made) factors 

can, if conditions are right, mimic some 

of those factors and help support 

southwestern willow flycatcher habitat. 

Also, these same types of activities, 

depending on the degree, location, and 

extent of their influence, can degrade 

southwestern willow flycatcher habitat. 

For example, dam operations can cause 

water to spread out over a wider area 

more consistently than there would be 

without the dam, potentially causing the 

development of riparian habitat over a 

large area. However, depending on how 

that dam is operated, flycatcher habitat 

may or may not be able to develop due 

to the amount and length of time water 

covers the floodplain/lake bottom. 

Additionally, some dams divert water 

from a river such that water rarely 

returns to the river channel, thereby 

removing the opportunities for habitat 

to develop below the dam. 

Our description of riparian developed 

areas in the lateral extent section refers 

to infrastructures that do not grow 

riparian vegetation such as agricultural 

fields, roads, houses, landscaped areas 

surrounding houses, cement pads, 

bridge footings, bases of utility 

structures, and existing gravel pits. 

Overall, we recognize the value of 

situations where man-made activities 

augment, maintain, enhance, or develop 

southwestern willow flycatcher habitat. 

We also recognize the potential 

difficulties that may arise with respect 

to a landowner’s desire to change 

practices that could result in incidental 

take of flycatchers (regardless of a 

critical habitat designation). In these 

instances, we seek to work with 

landowners and/or agencies to provide 

Endangered Species Act coverage 

through section 7 consultations, a Safe 

Harbor Agreement, or Habitat 

Conservation Plan to ensure 

conservation of the flycatcher and to 

60890 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

provide regulatory authorization and 

unburden a landowner. 

Comments Related to Previous Federal 

Actions, the Act, and Implementing 

Regulations 

(11) Comment: Many commented that 

our discussion concerning the value of 

designating critical habitat, and the 

procedural and resource difficulties 

involved should be addressed in a 

different forum, not in a critical habitat 

rule. 

Our Response: As discussed in the 

sections ‘‘Designation of Critical Habitat 

Provides Little Additional Protection to 

Species,’’ ‘‘Role of Critical Habitat in 

Actual Practice of Administering and 

Implementing the Act,’’ and 

‘‘Procedural and Resource Difficulties in 

Designating Critical Habitat’’ and other 

sections of this and other critical habitat 

designations, we believe that, in most 

cases, other conservation mechanisms 

provide greater incentives and 

conservation benefits than does the 

designation of critical habitat. These 

other mechanisms include the section 4 

recovery planning process, section 6 

funding to the States, section 7 

consultations, the section 9 protective 

prohibitions of unauthorized take, the 

section 10 incidental take permit 

process, and cooperative programs with 

private and public landholders and 

tribal nations. 

(12) Comment: Many commenters 

identified particular areas that they 

believed should not be designated 

because critical habitat will 

unnecessarily burden the regulated 

public and will overload Service staff 

with implementation of the designation. 

Specifically, many private landowners 

with agricultural fields, water 

diversions, and cattle ranches 

throughout the bird’s range commented 

that this designation would cause them 

harm economically and delay projects 

through the regulatory process. 

Our Response: Pursuant to the Act, 

we are statutorily required to designate 

critical habitat for a federally listed 

species if it is determined to be both 

prudent and determinable. We have 

previously made a determination that 

critical habitat was both prudent and 

determinable in our previous 

designation for this species (62 FR 

39129, July 22, 1997). We further note 

that we are under court order to redesignate critical habitat for the 

southwestern willow flycatcher (please 

refer to our proposed rule (69 FR 60706, 

October 12, 2004) under Previous 

Federal Action for a discussion of the 

litigation history concerning this 

designation). Critical habitat 

designations do not constitute or create 

a regulatory burden, by themselves, in 

terms of Federal laws and regulations on 

private landowners carrying out private 

activities, but in certain areas they may 

trigger additional State regulatory 

reviews and other requirements. For 

example, actions occurring in critical 

habitat in California may be subject to 

additional regulatory reviews under the 

California Environmental Quality Act 

and other State laws and regulations. 

When a private action requires Federal 

approval, permit, or is federally funded, 

the critical habitat designation may 

impose a Federal regulatory burden for 

private landowners; absent Federal 

approval, permits, or funding, the 

designation should not affect farming 

and ranching activities on private lands. 

Similarly, a Federal nexus could result 

in the designation affecting future land 

use plans, and the designation may 

trigger State requirements which could 

impact such plans. However, we note 

that lands included in this proposal are 

waterways with limited development 

(housing or commercial structures) 

potential. As explained in this rule, we 

are required to and have developed an 

economic analysis of the effects of this 

designation pursuant to section 4(b)(2) 

of the Act which considers the issues 

raised by the commenters. 

(13) Comment: Some commented that 

designation of critical habitat for the 

southwestern willow flycatcher 

conflicts with management of native 

fish (Lake Mead and Horseshoe Lake), 

and similarly, that critical habitat for the 

flycatcher is inappropriate because it 

results in single species management. 

Our Response: Management for 

southwestern willow flycatcher habitat 

and native fish and other riparian/ 

aquatic species should largely be 

compatible. A large number of riparian 

species are listed as threatened or 

endangered, species that naturally 

inhabit the riparian and/or aquatic 

habitats to which the flycatcher is also 

tied (USFWS 2002: 55–60). This 

underscores that southwestern riparian 

and aquatic habitats, while supporting 

disproportionately high levels of 

biodiversity, have also been degraded at 

a landscape level. The presence of so 

many listed species within this broad 

ecosystem does not mean that difficult 

decisions must be made of managing for 

one listed species rather than, or at the 

expense of, another. Rather this 

situation illustrates that if riparian and 

aquatic ecosystems are improved to a 

more natural, heterogeneous conditions 

(recognizing that restoring rivers to 

completely wild conditions is not 

possible), many imperiled species will 

benefit. 

We do recognize however that there 

may be some specific instances where 

situations such as water storage could 

result in conflicts in somewhat artificial 

environments such as lakes for the 

flycatcher and listed fish. However, 

these instances throughout the 

flycatcher’s range and this designation, 

we believe, are few and far between, and 

are site specific. The two locations 

brought up in comments, Lake Mead 

and Horseshoe Lake, are being excluded 

from this final rule pursuant to section 

4(b)(2) of the Act. 

(14) Comment: Some comments 

pointed out that our critical habitat 

proposal was significantly different in 

the amount and location of areas 

identified in our 1997 designation, and 

there was no discussion or analysis of 

the difference. 

Our Response: As the comment points 

out, some areas designated as critical 

habitat in 1997 were not proposed for 

designation in this proposal, some of the 

same areas were proposed, and new 

areas were proposed. Our draft NEPA 

document described the specific streams 

that changed between the two 

proposals. Our specific methodology 

used to identify areas proposed as 

critical habitat provided our approach to 

critical habitat in contrast to the 

previous designation (which had no 

specific methodology). The science 

provided in the Recovery Plan (USFWS 

2002) and our improved knowledge of 

the distribution and abundance of 

territories, use of river corridors for 

migration, year-to-year movements, and 

habitat use within territories helped 

guide our approach and provided 

support for the segments proposed. 

Therefore, it was largely our improved 

knowledge of the flycatcher and its 

habitat that provided the difference in 

areas proposed in 2004 compared to 

those in 1997. 

(15) Comment: Some stated that our 

comment periods for the proposed rule, 

NEPA document, and economic analysis 

were inadequate to allow the public to 

understand and comment meaningfully 

on the proposed rule and should be 

extended. 

Our Response: The proposed critical 

habitat rule for the southwestern willow 

flycatcher was available to the public for 

review and comment from October 12, 

2004, to May 31, 2005, and for an 

additional 11 days from July 7 to July 

18, 2005. The comment periods for the 

economic analysis and NEPA document 

extended from April 28, 2005, to May 

31, 2005, plus the additional 11-day 

period in July. Therefore, there was an 

open comment period for 43 days for 

the draft economic analysis and NEPA 

documents, plus there was a total of just 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60891 

over 70 days where the public was able 

to examine these documents. We believe 

these two public comment periods of 

over 8 months for the proposal, and 43 

days (but over 70 days to review) for the 

NEPA and economic analysis, provided 

adequate opportunity for public 

comment. In addition, due to the large 

scope of this rule and in order to 

comply with our September 30, 2005, 

court ordered date for completion of the 

final rule it would not have been 

possible to extend the comment period 

beyond July 18, 2005. 

(16) Comment: One commenter stated 

that the Service did not adequately 

notify landowners where proposed 

critical habitat was located. Another 

commenter expressed concern that the 

quality of the maps was poor and 

therefore, made it difficult for the public 

to adequately comment on the proposed 

revisions. 

Our Response: Due to the large scope 

of the proposed designation it was not 

possible to contact each landowner. 

However, we issued a widely 

disseminated news release regarding our 

proposal and published legal notices in 

major newspapers in areas involved in 

the proposal. We published numerous 

Federal Register notices including a 

notice of intent to conduct scoping for 

critical habitat, the critical habitat 

proposal, comment period extensions, 

notice of availability of draft documents, 

notices of scoping meetings and 

hearings. We sent out thousands of 

letters and cards to State and Federal 

government agencies, private 

individuals and groups, elected 

officials, and tribal governments also 

announcing the proposal, document 

availability, and public meetings/ 

hearings. We also developed and sent 

out press releases concurrent with 

Federal Register notice announcements. 

A web page of southwestern willow 

flycatcher critical habitat materials was 

maintained at Arizona Ecological 

Services Web Site http://www.fws.gov/ 

arizonaes. Public meetings, open houses 

and/or hearings on the published 

proposal were held in the following 

locations: February 17, 2005—Camp 

Verde, AZ (sponsored by Verde 

Watershed Association); May 2, 2005, 

Escondido, CA; May 3, 2005, Chino, CA; 

May 9, 2005, Las Vegas, NV; May 10, 

2005, Lake Isabella, CA; May 16, 2005, 

Mesa, AZ; May 17, 2005, Silver City, 

NM; May 18, 2005, Albuquerque, NM; 

May 19, 2005, Alamosa, CO; May 24, 

2005—Bishop, CA (sponsored by Los 

Angeles Water and Power Authority); 

July 7, 2005—Safford, AZ (sponsored by 

Graham County). NEPA scoping 

meetings were held at Escondido, 

Chino, and Lake Isabella, CA; Phoenix, 

AZ; Las Vegas, NV; Silver City and 

Albuquerque, NM, and Alamosa, CO in 

early 2004. 

Maps delineating the boundaries of 

critical habitat were included in the 

October 12, 2004, proposed rule, and 

posted at http://criticalhabitat.fws.gov 

were specific GIS layers of the proposed 

critical habitat. In the proposed rule we 

provided contact information for eight 

Service Field Offices for anyone seeking 

assistance with the proposed critical 

habitat. Therefore, we believe that we 

made every effort possible to reach all 

interested parties and provide avenues 

for them to obtain information 

concerning our proposal and supporting 

documents. 

(17) Comment: One commenter stated 

that local land use controls provide 

sufficient protection for the 

southwestern willow flycatcher. 

Our Response: Although there are 

other State, local, and Federal laws that 

offer some protection to endangered 

species and their habitats (e.g., Clean 

Water Act and California Environmental 

Quality Act), none provide the same 

level of protection and review for 

threatened and endangered species as 

does the Act. These laws are not 

redundant and work in concert to 

provide protection for environmental 

resources. 

(18) Comment: Some comments 

expressed that the Service failed to 

identify special management 

considerations related to a variety of 

lands across the subspecies range. 

Our Response: In our proposed 

designation of critical habitat for the 

southwestern willow flycatcher that 

published on October 12, 2004 (69 FR 

60706), we identified special 

management considerations shared by 

all stream segments proposed for 

southwestern willow flycatcher critical 

habitat. We cited threats such as loss 

and modification of habitat due to 

industrial, agricultural, and urban 

developments, and directed the reader 

to locations where the threats are 

described in great detail in the final 

listing rule (60 FR 10694, February 27, 

1995), the previous critical habitat 

designation (62 FR 39129, July 22, 

1997), and the final recovery plan 

(USFWS 2002). We note there are 

complete appendices included in the 

Recovery Plan (USFWS: Appendices A–

O) that elaborate on rangewide 

southwestern willow flycatcher 

management issues focusing on water 

management, livestock grazing, 

recreation, cowbird parasitism, habitat 

restoration, exotic plants, fire 

management, recreation, etc. 

(19) Comment: One comment asked 

whether on-going activities, such as 

routine inspections, road grading, and 

construction adjacent to designated 

critical habitat are considered to 

appreciably decrease habitat values or 

quality through indirect effects. 

Our Response: The effects of any such 

activities on critical habitat must be 

considered by the Federal agency 

planning to conduct such activities. The 

action agency determines whether their 

action(s) ‘‘may affect’’ the southwestern 

willow flycatcher or its primary 

constituent elements within the 

adjacent critical habitat based on their 

analyses. If so, the action agency would 

enter into consultation with us under 

section 7. We do not anticipate that 

grading existing roads or inspection of 

existing developed areas would likely 

result in an effect to critical habitat. 

Construction, depending on the type of 

activity, could have adverse effects, 

especially if it indirectly resulted in 

impacts to habitat such as groundwater 

pumping, channel manipulation, habitat 

trampling, etc. 

(20) Comment: Several comments 

expressed concern that commercial 

activities, such as mining, mineral 

prospecting, agriculture, etc. would be 

prohibited or severely restricted by a 

designation of critical habitat. 

Our Response: Section 7(a)(2) of the 

Act requires Federal agencies to ensure 

that activities they authorize, fund, or 

carry out are not likely to jeopardize the 

continued existence of such a species or 

result in the destruction or adverse 

modification of critical habitat. If a 

Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Through this consultation, the 

action agency ensures that their actions 

do not destroy or adversely modify 

critical habitat. Section 7 of the Act does 

not apply to activities on private or 

other non-Federal lands that do not 

involve a Federal nexus, and critical 

habitat designation would not provide 

any additional protections under the 

Act for private or non-Federal activities. 

Critical habitat does not prohibit private 

or commercial activities from occurring. 

However, all parties, Federal, State, 

private, and tribal are unable to take 

(e.g., harm, harass, pursue) listed 

species under section 9 without the 

appropriate permit. 

(21) Comment: Some comments 

suggested that the designation of critical 

habitat would prohibit mosquito 

abatement programs. 

Our Response: The Service does not 

believe that mosquito abatement 

programs focused in communities and 

developed areas necessarily pose a risk 

to southwestern willow flycatchers. We 

60892 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

encourage cooperation and coordination 

from those applying chemicals to 

riparian areas in and around river water 

due to possible concerns regarding 

southwestern willow flycatchers, other 

wildlife dependent on insect 

populations, and water quality. We 

believe there are applications of 

mosquito abatement in riparian areas 

that could be compatible with 

southwestern willow flycatchers and 

reduce risk to other wildlife and people. 

For example, application of larvicide is 

typically most effective, target specific, 

and provides the least risk to non-target 

species (CDC 2003). 

Comments Related to Critical Habitat, 

Primary Constituent Elements, and 

Methodology 

(22) Comment: Some questioned the 

scientific evidence used to determine 

critical habitat, one describing it as junk 

science. 

Our Response: In designating critical 

habitat for the southwestern willow 

flycatcher, we have used the best 

available scientific and commercial 

information, including results of 

numerous surveys, peer-reviewed 

literature, unpublished reports by 

scientists and biological consultants, 

habitat models (Hatten and Paradzick 

2003; Dockens and Paradzick 2004), a 

stakeholder-driven Recovery Plan 

(USFWS 2002), and expert opinion from 

biologists with extensive experience 

studying the southwestern willow 

flycatcher and its habitat. Further, 

information provided in comments on 

the proposed designation and the draft 

economic analysis were evaluated and 

taken into consideration in the 

development of this final designation, as 

appropriate. The literature cited for this 

rule is posted at http://www.fws.gov/ 

arizonaes/. Also, the proposed rule has 

undergone peer review, and those 

comments are included above. 

(23) Comment: One commenter 

remarked that the information 

developed for the 29 km (18 mi) radius 

is inappropriate because it was site 

specific and is only a by-product of the 

study area. 

Our Response: We disagree and note 

the support for this radius provided by 

peer reviewers in comment number 6. In 

the instance of the work conducted by 

U.S. Geological Survey (USGS) that 

provided the information on natural 

movements of southwestern willow 

flycatchers, we are familiar with no 

other study that has occurred for as 

many years (since 1997), over as large 

an area, and has trapped, banded, and 

re-sighted as many birds. The primary 

study area occurs along lower Tonto 

Creek, Roosevelt Lake, the Salt River 

immediately above Roosevelt Lake, the 

lower San Pedro River (encompassing 

an area from approximately Bingham 

Cienaga to Winkelman), and the Gila 

River from Dripping Springs Wash 

downstream past Kearny. However, the 

ability to detect banded flycatchers 

extends beyond this general study area 

to AZ, and to a lesser extent, across the 

entire bird’s range. 

Banding and re-sighting of birds by 

the USGS occurs primarily in 

conjunction with crews from Arizona 

Game and Fish Department. In some 

years, approximately 40 or more people 

are directly participating in this effort. 

In past years, the USGS has traveled to 

locations across AZ, such as Camp 

Verde; the Gila River near Safford; and 

Greer to trap, band, and/or re-locate 

banded southwestern willow 

flycatchers, and has traveled throughout 

the subspecies range to trap, band, 

collect genetic material, and possibly 

detect previously banded birds. 

The primary study area encompasses 

a variety of habitats and conditions and 

locations over a large area. The habitat 

varies from free-flowing Tonto Creek 

and Salt River, to the regulated 

conservation space of Roosevelt Lake, to 

the regulated Gila River below Coolidge 

Dam, and the free-flowing San Pedro 

River. The work encompassed withindrainage and between-drainage 

movements. We believe these are 

diverse locations providing diverse 

habitats over a wide ranging study area. 

This large study area did not place 

artificial geographic limits on potential 

re-sightings of banded southwestern 

willow flycatchers. 

A portion of each southwestern 

willow flycatcher recovery permit, 

issued by the Service for surveying in 

Region 2, identifies the importance of 

banded birds and the reporting 

requirements if one is detected. The 

USGS is able to respond to these reports 

to try and confirm these sightings. Also 

in support of this effort, the importance 

of documenting banded flycatchers is a 

section of each survey training session 

that every permitted surveyor attends. 

Therefore, the area and effort to 

determine the movements of flycatchers 

extends beyond the primary Roosevelt/ 

San Pedro/Gila River area, to all survey 

sites across AZ, and to a lesser extent, 

across the bird’s range. The USGS is 

also in contact with scientists studying 

flycatchers across their range, such as 

SWCA, Inc. and the Bureau of 

Reclamation along the lower Colorado 

River, and ongoing research on the Kern 

River, CA. Additionally, band recoveries 

are reported to the USGS Bird Banding 

Lab and reported back to the scientists. 

We understand that the selection of a 

study area could limit the extent of data 

collected, but in this case, we do not 

believe it hampered our ability to make 

an appropriate conclusion on 

southwestern willow flycatcher 

movements to determine high 

connectivity between distant sites. The 

frequency (267 of 292) of band 

recoveries within 29 km (18 mi) radius; 

the approximate 150 km/93 mi distance 

between the limits of intensive 

monitoring (Tonto Creek inflow to 

Roosevelt Lake to Bingham Cienega on 

San Pedro River); the training, survey 

effort, and band recovery opportunities 

statewide and rangewide; and range of 

flycatcher movements recorded (0 km/ 

mi to 440 km/276 mi) leads us to 

conclude that our application of the 

data collected was appropriate. 

(24) Comment: One commented that 

the critical habitat designation is not 

consistent with the Recovery Plan’s 

definition of occupied habitat. 

Our Response: The Recovery Plan and 

survey protocols established for 

southwestern willow flycatchers define 

or describe the determination of an 

occupied nesting territory, but do not 

address, nor were intended to address, 

the amount or extent of area used by 

southwestern willow flycatchers for lifehistory needs, its home range, migration 

stopover areas, or how to delineate 

critical habitat. We note the Recovery 

Plan’s (USFWS 2002: 16) conclusion 

that ‘‘nesting habitat is only a small 

portion of the larger landscape that 

needs to be considered when 

developing management plans, recovery 

actions, biological assessments for 

section 7 consultations with the 

USFWS, or other documents defining 

management areas or goals for flycatcher 

recovery.’’ The critical habitat 

designation follows this guidance. 

(25) Comment: One individual 

commented that critical habitat should 

be designated and recovery should be 

conducted on a patch-by-patch basis. 

Our Response: Flycatcher habitat is 

ephemeral and its mosaic-like 

distribution is dynamic in nature, 

because riparian vegetation is prone to 

periodic disturbance (i.e., flooding) 

(USFWS 2002:17). Therefore, it is not 

realistic to assume that any breeding 

habitat patch will remain suitable over 

the long-term, or persist in the same 

location (USFWS 2002:17). Designation 

at the patch level is technologically 

unfeasible because comprehensive 

mapping of flycatcher habitat at the 

patch level does not exist. 

Cardinal and Paxton (2005) described 

the extent of area or home range used 

by pre-breeding, breeding, and postnesting southwestern willow flycatchers 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60893 

and dispersing young-of-the-year 

southwestern willow flycatchers, and 

discovered flycatchers using a variety of 

habitats extending beyond the area 

where a nest is placed for foraging, 

territory establishment, mate discovery, 

and staging for migration. Koronkiewicz 

et al. (2004) and McLeod et al. (2005) 

described the use of the entire length of 

the lower Colorado River and its 

tributaries by willow flycatchers during 

migration. Also, southwestern willow 

flycatchers exhibit general site fidelity, 

rather than specific nest fidelity, largely 

in response to its dynamic habitat 

(USFWS 2002: 22). Breeding 

southwestern willow flycatchers 

typically move from one season to the 

next, regularly up to 29 km (18 mi). A 

few birds have been detected at greater 

than 400 km (248 miles) from a previous 

year’s breeding location (E. Paxton, 

USGS, e-mail). 

(26) Comment: Many commented that 

areas identified in the Recovery Plan for 

recovery should be designated as critical 

habitat, specifically river segments not 

proposed in the Hassayampa/Agua Fria, 

Amaragosa, Santa Cruz, San Francisco, 

lower Rio Grande, Powell, San Juan, and 

Santa Clara Management Units. 

Our Response: Recovery plans are not 

regulatory documents, and as a result, 

there are no specific protections, 

prohibitions, or requirements afforded a 

species based solely on a recovery plan. 

Critical habitat contributes to the overall 

recovery strategy for listed species, but 

does not by itself achieve recovery plan 

goals. The Act states, at section 3(5)(c), 

that except in particular circumstances 

determined by the Secretary, critical 

habitat shall not include the entire 

geographical area which can be 

occupied by the threatened or 

endangered species. It is not the intent 

of the Act to designate critical habitat 

for every population and every 

documented historical location of a 

species. We have designated habitat that 

contain features essential for the 

conservation of the species. 

While proposed critical habitat for the 

southwestern willow flycatcher does not 

mirror the exact goals identified in the 

Recovery Plan, it does reflect the 

concepts of conservation biology used 

by the Recovery Team (USFWS 2002: 

74–77). Specifically, our methodology 

targeted large populations and small 

populations that exist in high 

connectivity which equaled a large 

population (USFWS 2002: 74–75). This 

approach was chosen by the Team 

because large populations contribute the 

most to metapopulation stability and 

those smaller sites arranged in high 

connectivity may provide as much or 

more stability (USFWS 2002: 74–75). 

This choice subsequently supports 

important conservation principles: (1) 

Populations should be distributed close 

to each other to allow for movement, 

and (2) those populations should 

provide for stable metapopulations, 

gene flow, connectivity, and protection 

against catastrophic losses. As a result, 

across 6 southwestern states, our 

proposal included river segments in 21 

of the 29 Management Units with 

numerical conservation goals. 

(27) Comment: Some commenters 

recommended that all areas occupied by 

the southwestern willow flycatcher be 

designated as critical habitat and more 

unoccupied areas should be designated. 

Our Response: Section 3(5)(c) of the 

Act states that not all areas that can be 

occupied by a species should be 

designated as critical habitat unless the 

Secretary determines that all such areas 

are essential to the conservation of the 

species. Our regulations (50 CFR 

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

shall designate as critical habitat areas 

outside the geographic area occupied by 

the species only when a designation 

limited to its present range would be 

inadequate to ensure the conservation of 

the species.’’ In this instance, we have 

determined that all areas that can be 

occupied or are presently within the 

geographical area of the southwestern 

willow flycatcher are not essential for 

conservation of the bird. 

(28) Comment: Some comments stated 

that our PCEs are too narrow in scope 

and omit important features such as 

water or moist soils. 

Our Response: Our PCEs specifically 

refer to the following: (1) Riparian plant 

species needed for breeding, foraging, 

and shelter for breeding, non-breeding, 

territorial, migrating, and dispersing 

flycatchers, (2) the variety of structural 

vegetation features targeted for nest 

placement, (3) the range of more 

generalized riparian habitat used for 

migrating, foraging, dispersing, and nonbreeding southwestern willow 

flycatchers; and (4) their food 

requirements. River hydrology and 

geomorphology, groundwater, surface 

water, channel-floodplain connectivity, 

overbank flooding, hydrologic regime, 

fine sediments, moist soils, microclimate, and other processes such as 

erosion, precipitation, drought, 

humidity, etc. are important for the 

presence, development, location, 

abundance, growth, regeneration, 

suitability, and maintenance of the 

vegetation and insects identified as the 

PCEs. We described in great detail the 

setting and function of these 

components and their role in supporting 

southwestern willow flycatcher habitat 

in the proposal (69 FR 60712–60715). 

(29) Comment: Several comments 

stated that we included areas where the 

southwestern willow flycatcher and 

their PCEs were absent, such as roads, 

developed areas, agricultural fields, 

bridges, or where the bird’s status is 

uncertain. Some requested that we 

examine the segments more closely, 

particularly in Graham County, AZ, and 

more finely remove areas that do not 

contain PCEs. Others recommended that 

we also exclude right-of-way corridors 

adjacent to bridges or transmission 

lines. 

Our Response: In the development of 

this final rule, we have reviewed lands 

included in our proposal and have 

revised and removed areas from critical 

habitat that we could determine did not 

contain features essential to the 

conservation of the species or in some 

cases entire river segments (see 

Summary of Changes section below). 

For example, we received GIS layers 

and aerial photos where we could 

identify, confirm, and subsequently 

eliminate portions of agricultural fields 

in the Verde Valley, AZ, that fell within 

the designation; we removed Pinto 

Creek and the South Fork of the Little 

Colorado River in AZ; and we shortened 

the Big Sandy River segment in AZ, etc. 

We made an effort to exclude all 

developed areas, such as towns, housing 

developments, and other lands not 

reasonably believed to contain features 

essential to the conservation of the 

southwestern willow flycatcher. 

However, due to the limitations in 

technology, it is not possible to remove 

each and every one of these developed 

areas. Nor does the Service have the 

ability to ground truth and confirm each 

recommended developed area for 

removal. As a result, even at the refined 

mapping scale, the maps of the final 

designation may still include developed 

areas that do not contain primary 

constituent elements (see Criteria Used 

to Identify Critical Habitat section). 

Areas that do not contain the PCEs 

within the boundaries of critical habitat 

are not considered to be critical habitat 

and thus, actions in those areas would 

not trigger consultation unless they 

affected adjacent critical habitat. 

With regard to the request that all 

right-of-ways be removed from critical 

habitat, we are familiar with flycatcher 

habitat within right-of-ways adjacent to 

bridges or underneath transmission 

lines; therefore, those locations would 

have the PCEs. 

(30A) Comment: We received 

numerous comments that the 

designation of critical habitat for the 

southwestern willow flycatcher would 

prevent the restoration of native habitat 

for the southwestern willow flycatcherVerDate Aug<31>2005 15:47 Oct 18, 2005 Jkt 208001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\19OCR2.SGM 19OCR2
60894 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

specifically, the conversion of exotic 

saltcedar/tamarisk to native 

cottonwood-willow habitat. 

Our Response: Our 4(b)(8) 

determination in this final rule, and the 

approach provided in the Recovery Plan 

(USFWS 2002: Appendix H and K), 

supports site-specific restoration of 

habitat from exotic habitat to native 

vegetation (or possibly mixed native/ 

exotic) of equal or better quality for the 

flycatcher. The approach provided in 

the Recovery Plan was designed to 

apply to general riparian restoration in 

addition to those efforts specifically for 

the southwestern willow flycatcher. 

While these efforts may require section 

7 consultation due to temporary adverse 

effects to flycatchers and their habitat, 

we do not believe that a project would 

result in adverse modification if the 

results of site-specific analysis and 

restoration culminate in equal or better 

habitat quality for the flycatcher. 

(30B) Comment: Those supportive of 

the use of biocontrol (introduction of 

nonnative insects) to degrade or kill 

tamarisk (an exotic plant species used 

by flycatchers for nesting, foraging, etc.) 

through leaf consumption expressed: (1) 

Opposition to designation of flycatcher 

critical habitat in general; (2) 

disapproval of the approach to 

biocontrol that is discussed in the final 

Recovery Plan for the flycatcher; (3) 

asserted that tamarisk does not provide 

suitable nesting habitat (i.e., is 

inadequate) for flycatchers and other 

wildlife; and (4) that by removing 

tamarisk, it will reduce the amount of 

water consumed by tamarisk through 

evapo-transpiration from those 

drainages, which will in turn, increase 

the amount of water in the river. 

Our Response: As indicated above in 

our response to comment number 30, 

the Recovery Plan (USFWS 2002: 

Appendix H and K), supports sitespecific restoration of exotic habitat to 

native vegetation (or possibly mixed 

native/exotic) of equal or better quality 

for the flycatcher. The Recovery Plan 

(USFWS 2002: Appendix H and K) 

provides guidance to determine the 

cause for exotic plant proliferation, 

long-term ecosystem solutions, 

measures to determine the success of 

restoration activities, and restoration 

strategies. Absent any new information 

on biocontrol, we continue to support 

the concern related to the use of 

biocontrols and guidance provided in 

the Recovery Plan regarding 

introduction of biocontrol into the 

breeding range of the flycatcher 

(USFWS 2002:121). 

(31) Comment: We received 

comments that our approach in targeting 

occupied segments does not allow for 

the growth of southwestern willow 

flycatcher populations. 

Our Response: We disagree and 

believe our approach in targeting river 

segments with large populations and 

collections of small sites in high 

connectivity that equal a large 

population provides for the growth of 

populations within designated critical 

habitat and outside of critical habitat. 

The focus on protection of large sites 

with the ability to produce dispersers 

was a conservation strategy of the 

Recovery Team (USFWS 2002:75). The 

Recovery Team (USFWS 2002:75) 

described that ‘‘maintaining and 

augmenting existing breeding 

populations is a faster, easier, and more 

reliable way to maintain and achieve 

population goals * * *.’’ ‘‘Thus, 

maintenance and protection of existing 

populations is a priority.’’ Existing sites 

have the opportunity to grow and 

produce dispersers to develop nesting 

areas within designated critical habitat 

segments, or disperse to pioneer sites 

outside of designated critical habitat. 

Because all potential or existing 

flycatcher habitat is not designated as 

critical habitat, this does not imply that 

non-designated areas are not important 

for southwestern willow flycatcher 

conservation. 

(32) Comment: Some commented that 

our departure from our methodology in 

the Coastal CA Recovery Unit, 

specifically in the Santa Ana 

Management Unit, was arbitrary and 

capricious. 

Our Response: We disagree and 

believe we described why we departed 

from our methodology, how we arrived 

at the proposed river segments, and the 

goals of this approach. We described in 

our proposal (69 FR 60716) that due to 

the wide diversity and conditions of 

habitat across the bird’s range and 

complexity of the flycatcher’s habitat 

needs, we believed it was necessary to 

consider other factors in the Coastal CA 

Recovery Unit. Because of the fractured 

and limited nature of habitat in Coastal 

CA Recovery Unit and due to nearly all 

sites being in high connectivity, we did 

not believe that every river segment was 

essential. As a result, we relied on the 

Recovery Plan recommendations, 

conservation goals, flycatcher habitat 

needs, and expert opinion to generate 

appropriate critical habitat segments. 

We sought to provide locations that 

would generate metapopulation stability 

by selecting the drainages with the 

largest amount of territories (Santa Ana, 

Santa Margarita, San Luis Rey, and 

Santa Ynez rivers) and nearby adjacent 

stream segments to allow for population 

connectivity, metapopulation stability, 

growth, dynamic river processes, and 

protection against catastrophic losses. 

We identified that there were some 

locations that held territories that were 

located within our 29 km (18 mi) radius 

that we did not select, because when 

considered within the entire range of 

habitats and stream segments selected, 

these were not believed to be essential. 

(33) Comment: One comment asserted 

that the proposed rule did not support 

the concept that small sites are 

important. 

Our Response: A metapopulation, as 

defined for the flycatcher, is a group of 

spatially disjunct local southwestern 

willow flycatcher populations 

connected to each other by immigration 

and emigration (USFWS 2002:72). 

Results of the status of the southwestern 

willow flycatcher population 

persistence or metapopulation stability 

vary geographically (Lamberson et al. 

2000). Metapopulations are most stable 

where many connected sites and/or 

large populations exist (USFWS 

2002:72). Many connected sites would 

include ‘‘small’’ sites, or those with few 

territories, but are closely connected 

with other ‘‘small’’ sites. The Coastal 

CA, Gila, and Rio Grande Recovery 

Units were the most stable, because of 

the abundance and proximity of 

breeding sites (USFWS 2002:72). This 

critical habitat designation focused on 

those areas with large populations or 

small sites in close proximity to each 

other that equaled a large population. 

While our target was on large 

populations or collections of smaller 

sites in close proximity, we emphasize 

that any southwestern willow flycatcher 

breeding site is important due to the 

bird’s endangered status and the need to 

improve metapopulation stability, gene 

flow, and protect against catastrophic 

losses throughout the bird’s range. 

(34) Comment: Some commented that 

maps and legal descriptions fail to 

indicate the width of critical habitat. On 

the same topic, others wrote that 

because we described that critical 

habitat would be dynamic due to river 

flow, the boundary would also change, 

and using the floodplain boundary is 

inappropriate because the floodplain 

itself is constantly changing and 

difficult to define. 

Our Response: The lateral extent of 

critical habitat, contrary to these 

comments, is a defined boundary. 

Southwestern willow flycatcher habitat 

is expected to be dynamic ‘‘within’’ the 

defined lateral extent boundaries. In our 

proposal, we provided a web site with 

a link to the specific boundaries and 

widths of proposed critical habitat. For 

the final rule, the same web site can be 

accessed with the specific information. 

The web address is http:// 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60895 

criticalhabitat.fws.gov. We also 

published legal descriptions in the 

proposed rule and this final rule 

identifying the lateral extent of critical 

habitat. 

(35) Comment: Some commented that 

the lateral extent of critical habitat is too 

broad. One wrote that the Service may 

need to establish a corridor, but it need 

not be this broad. To simply say that 

because the river may wander it should 

encompass the entire alluvial plain is 

simply overreaching. 

Our Response: We used the best 

available technology (existing digital 

sources and expert visual interpretation 

of aerial photographs and satellite 

imagery) to map the riparian zone 

within river corridors in proposed areas 

across six States. In developing the 

lateral extent, we found that using 

existing data sources such as the 100- 

year floodplain was in some places, too 

wide. However, in other areas, the entire 

100-year floodplain was appropriate 

because it encompassed available 

flycatcher habitat. However, throughout 

the entire designation, the lateral extent 

is constrained to areas either equal to or 

less than the 100-year floodplain. Our 

visual interpretation examined the 

boundaries of actual riparian vegetation 

growth in order to ensure accuracy. 

Therefore, these locations are the areas 

where rivers flow and sandy soils exist 

and riparian vegetation grows. We do 

not extend our boundaries into 

traditionally developed areas 

(commercial and housing) outside of the 

100-year floodplain. 

(36) Comment: Some commented that 

we inappropriately omitted important 

plant species used by southwestern 

willow flycatchers under primary 

constituent element number 1. 

Our Response: In order to not be 

redundant, we provided great detail in 

the text supporting the PCEs and the 

known plant species used by nesting 

southwestern willow flycatchers (69 FR 

60714) by citing the Recovery Plan 

(USFWS 2002: D–3, 5, and 9). In 

response to this comment, we have 

altered the language of this PCE to 

include those known riparian plant 

species important for southwestern 

willow flycatchers. 

(37) Comment: Comments were 

provided using the results of Arizona 

Game and Fish Department’s Mapping 

and Monitoring Southwestern Willow 

Flycatcher Breeding Habitat in Arizona: 

A Remote Sensing Approach (Dockens 

and Paradzick 2004) to demonstrate that 

river segments were not occupied by the 

flycatcher and segments did not have 

the PCEs. 

Our Response: We reviewed and 

considered this model, but did not rely 

solely on it in the development of our 

proposed designation due to the 

limitations of the results that the 

authors of the model described in their 

report. They described, ‘‘this model 

provides a snapshot in time of predicted 

suitable (nesting) habitat * * * 

reoccurring disturbances influence the 

distribution and abundance of SWWF 

(southwestern willow flycatcher) 

breeding habitat in any one year.’’

Therefore, the results of this model do 

not account for the dynamics of habitat 

over time. The authors also described 

other limitations in the use of the results 

of their model as a conservation tool. 

They wrote, ‘‘The model only predicts 

suitable nesting habitat and does not 

predict all habitat used by nesting 

SWWF. Nesting habitat is one part of a 

larger matrix of habitat used by SWWF 

during the migration and breeding 

season.’’

(38) Comment: Some provided 

comment that we should not designate 

critical habitat in Elephant Butte 

Reservoir on the Rio Grande in NM for 

a variety of reasons. Additionally, some 

commented that the power lines were 

an inadequate boundary for the 

southern boundary of the middle Rio 

Grande segment, because it may not be 

a permanent location. 

Our Response: The conservation 

space of Elephant Butte Reservoir was 

not part of the proposal, and therefore, 

is not included in the critical habitat 

designation. The description of the 

southern boundary of the Middle Rio 

Grande segment as the power line 

crossing upstream of Elephant Butte 

Reservoir is to provide readers with an 

easily identifiable reference point. The 

mapping of critical habitat boundaries is 

permanent with legal descriptions for 

the boundaries, and mapped boundaries 

are found in GIS layers at http:// 

criticalhabitat.fws.gov. 

(39) Comment: Some commented that 

our proposal included segments of 

tributaries and washes not described in 

the text, specifically areas along the 

upper Rio Grande, Verde River, and San 

Pedro River. 

Our Response: We agree. There were 

short stream segments of adjacent side 

drainages described in the legal 

descriptions and in the maps that were 

not described in the text of the proposal. 

We have re-examined the proposed 

segments and removed these short side 

drainages (creek, rivers, washes, etc.) 

that were not described in the text that 

extend beyond the stream segments 

proposed. We note that at the 

confluence of a tributary and main stem 

it is difficult to differentiate between 

habitats, therefore, we used our best 

judgment on where to specifically draw 

the line. 

(40) Comment: Some commented that 

because numerical recovery goals were 

reached in the San Luis Valley 

Management Unit and the Santa Ana 

Management Unit, that critical habitat 

should not be designated within these 

areas. 

Our Response: Our methodology for 

critical habitat specifically targeted the 

locations where large populations or 

small populations in high connectivity 

that equaled a large population exist. 

This, we believe, adheres to the 

principles of conservation biology 

described by the Recovery Team 

(USFWS 2002: 74–77). The Recovery 

Team (USFWS 2002: 75) described that 

‘‘maintaining and augmenting existing 

breeding populations is a faster, easier, 

and more reliable way to maintain and 

achieve population goals. * * *’’

‘‘Thus, maintenance and protection of 

existing populations is a priority.’’

The Santa Ana River and Santa Ana 

Management Unit possess a large 

population of flycatchers, with 

territories extending along the length of 

the Santa Ana River and along some of 

its tributaries. We note that the 

numerical goal for the Santa Ana 

Management Unit is 50 territories, and 

the most recent published information 

for this Management Unit cites 41 

territories for 2003 (Durst et al. 2005). 

Compiled rangewide data does not yet 

exist for 2004. There are additional 

recovery goals associated with 

Management Units other than number of 

territories, such as maintenance of 

populations for at least 5 years, 

completed management plans, and 

habitat objectives not yet achieved 

(USFWS 2002: 77–81). 

The San Luis Valley Management 

Unit, as commenters pointed out, has 

reached its numerical goal, reaching 73 

territories in 2003 (Durst et al. 2005) and 

surpassing the goal of 50 territories. But 

other goals have not been met. For 

example, the population has not been 

maintained for 5 years and habitat 

objectives have not been reached. Please 

note though, that due to partnerships 

developed with the Service, we are 

excluding river segments found in the 

San Luis Valley Management Unit (see 

the Application of Section 3(5)(A) and 

4(a)(3) and Exclusions Under Section 

4(b)(2) of the Act section for a detailed 

discussion of this exclusion below). 

(41) Comment: Many commented that 

critical habitat should not be designated 

in areas such as the Middle Rio Grande 

due to the need to manage for fire. 

Our Response: It is our belief that the 

need for fire management, especially 

areas such as the Middle Rio Grande or 

60896 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

the lower Colorado River, is consistent 

with the needs of the southwestern 

willow flycatcher, and if done 

appropriately, is not expected to result 

in adverse modification of critical 

habitat. The Recovery Plan (USFWS 

2002: Appendix L) provides a 

description of changes that have lead to 

increased risk and occurrence of fire in 

riparian areas. It also describes 

measures to reduce occurrence of fire in 

riparian areas and appropriate 

management of areas to reduce the risk 

and damage of wildfire to riparian 

habitat and the southwestern willow 

flycatcher (USFWS 2002: Appendix H, 

K and L). Therefore, we do not believe, 

if conducted appropriately, that fire 

management is inconsistent with 

necessary flycatcher management 

activities. 

(42) Comment: One comment 

remarked that the C-Spear Ranch along 

the San Pedro River, AZ, is not 

occupied by southwestern willow 

flycatchers. 

Our Response: The C-Spear Ranch 

had a southwestern willow flycatcher 

territory detected in 2002 (Smith et al. 

2003). Additionally, flycatchers are 

found nesting in close proximity 

upstream and downstream of the Ranch, 

and as a result, it is reasonably certain 

that, due to the use of riparian areas as 

migration corridors and dispersal areas, 

that non-breeding southwestern willow 

flycatchers visit the Ranch temporarily. 

Therefore, the C-Spear Ranch is within 

the geographical area occupied by the 

species. We refer to our discussion of 

the geographical area occupied by the 

southwestern willow flycatcher below 

for further explanation. 

(43) Comment: We received many 

site-specific comments regarding the 

occupancy of stream segment proposed 

for designation, while others provided 

more general comments on the concept 

of occupancy. For example, some 

claimed that flycatchers do not occupy 

a particular stretch of the Santa Ynez 

River, but described that two migrants 

were recorded. Others remarked we 

improperly designated unoccupied 

areas, claiming that they were occupied. 

Some commented that our conclusion 

that an area we described as having ‘‘no 

territories’’ should be removed because 

it was not occupied. Others claimed that 

we determined that migration habitat 

was essential, but was not adequately 

addressed in the proposal. Additionally 

others indicated that we proposed areas 

not known to be occupied at the time of 

listing and provided no justification. 

Our Response: In this final rule we 

provide specific language to clarify the 

geographic area occupied by the 

southwestern willow flycatcher (see 

Geographic Area Occupied by the 

Species section below) (including areas 

used by breeding, non-breeding, 

migrating, foraging, dispersing, and 

territorial southwestern willow 

flycatchers), and also describe why 

specific areas not known to be occupied 

at the time of listing are essential to the 

conservation of the subspecies (see 

Justification of Including Areas Not 

Known To Be Within the Geographical 

Area Occupied by the Species at the 

Time of Listing section below). Our 

methodology further describes how we 

arrived at determining essential and 

more specific locations to propose and 

subsequently designate as critical 

habitat. 

(44) Comment: One comment 

described that flycatcher habitat at 

Roosevelt Lake, AZ, is not essential for 

the flycatcher because it is ephemeral. 

Our Response: We disagree. The 

southwestern willow flycatcher 

population at Roosevelt Lake, 

depending on the year, can be the 

largest population of flycatchers across 

the subspecies’ range. In 2004, it 

represented 40 percent (209/522) of all 

known flycatcher territories in AZ 

(Munzer et al. 2005) and 12 percent of 

the entire subspecies in the most recent 

2003 rangewide summary report (Durst 

et al. 2005). This population not only 

provides territories to reach 

conservation goals for the Roosevelt 

Management Unit, but provides 

dispersers to other nearby Management 

Units, helps provide gene flow, 

populations stability, and protection 

against catastrophic losses. As a result, 

we believe it is a very important 

location and we made this conclusion in 

a biological opinion for raising 

Roosevelt Dam and for an HCP for dam 

operations. We described in our 

proposal (69 FR 60712) with respect to 

all flycatcher habitat that, ‘‘Because 

riparian vegetation is prone to periodic 

disturbance (e.g., flooding), flycatcher 

habitat is ephemeral and its distribution 

is dynamic in nature.’’

(45) Comment: The proposed 

inclusion of reservoir bottoms as critical 

habitat could unnecessarily hinder 

reservoir operations by limiting the 

timing and magnitude of water elevation 

changes. 

Our Response: Our 4(b)(8) 

determination in the proposed rule (69 

FR 60732) describes how certain dam 

operations, like Roosevelt Dam in 

central AZ, are not likely to destroy or 

adversely modify critical habitat. 

Roosevelt Dam allows water to 

significantly increase and decrease in 

the conservation space depending on 

availability and demand. This 

fluctuation results in the exposure of 

fine/moist soils in the flat/broad 

floodplain of the exposed ground and 

has led to the development of hundreds 

of hectares (acres) of flycatcher habitat. 

The same operating regime that creates 

the habitat will also inundate and cause 

loss of habitat; at this particular 

location, habitat is expected to persist 

on the perimeter and over time will 

increase and decrease (USFWS 2003). It 

is this very process of the ebb and flow 

of the conservation pool that ensures 

persistence of habitat over time, 

although habitat will vary spatially and 

temporally, as does flycatcher habitat in 

natural settings. 

(46) Comment: We received comment 

with respect to portions or lengths of 

many stream segments. In particular, we 

received comments about the Big Sandy 

River, Pinto Creek, and South Fork of 

Little Colorado River, AZ; Upper Gila 

River (Middle Gila Box), NM; Santa Ana 

River below Seven Oaks Dam, Temecula 

Creek, Temescal Creek, Santa Ysabel 

River, Mill Creek, and Cuyamaca Lake, 

CA; and Kern River, CA. We also reevaluated segments that were not 

included in the comments. 

Our Response: In refinements made to 

the delineation of critical habitat in the 

development of this final rule, we 

shortened segments (Big Sandy River, 

Verde River, Bill Williams River, 

Temecula Creek, Santa Ysabel River, 

Mill Creek, Oak Glen Creek, and 

Temescal Creek), removed segments 

(South Fork of Little Colorado River, 

Pinto Creek, San Diego River, Yucaipa 

Creek, Wilson Creek, San Timoteo 

Wash, Cuyamaca Lake, Cristianitos 

Creek), and removed sections (Middle 

Gila Box and Santa Ana River Wash) of 

stream segments in response to 

comments and our re-evaluation of 

these areas because we determined they 

were not essential for the conservation 

of the flycatcher. These changes are also 

listed in the Summary of Changes 

section below, and described in more 

detail with justification in the 

appropriate Unit Description section 

below. 

Comments Related to Military Lands 

(47) Comment: One commenter stated 

that they oppose the designation of 

critical habitat for the southwestern 

willow flycatcher on Naval Weapons 

Station, Seal Beach, Detachment 

Fallbrook because of the existence of an 

Integrated Natural Resources 

Management Plan (INRMP), potential 

complications in conservation efforts 

with other listed species, and adverse 

impacts on national security. 

Our Response: We have reviewed 

Detachment Fallbrook’s Fire 

Management Plan and INRMP. The 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60897 

Secretary determined, in writing, that 

Detachment Fallbrook’s INRMP 

provides a benefit to the southwestern 

willow flycatcher. Therefore, consistent 

with Public Law 108–136 (Nov. 2003): 

Nat. Defense Authorization Act for FY04 

and Section 4(a)(3) of the Act, the 

Department of Defense’s Detachment 

Fallbrook lands are exempt from critical 

habitat based on the adequacy of their 

completed and approved INRMP (see 

the Application of Section 3(5)(A) and 

4(a)(3) and Exclusions Under Section 

4(b)(2) of the Act section for a detailed 

discussion of this exemption below). 

(48) Comment: Some commenters 

recommended that the Service should 

exclude all essential lands on Camp 

Pendleton, including State lease lands 

because of their Integrated Natural 

Resource Management Plan (INRMP). 

Our Response: We agree with the 

commenter and have exempted all 

essential areas, including State lease 

lands, from designated critical habitat 

on Camp Pendleton based on their 

INRMP (see Application of Section 

3(5)(A) and 4(a)(3) and Exclusions 

Under Section 4(b)(2) of the Act section 

for a detailed discussion). Because the 

INRMP provides an overall conservation 

benefit to the southwestern willow 

flycatcher, these lands are exempt from 

critical habitat pursuant to section 

4(a)(3). 

(49) Comment: One commenter 

strongly supported the designation of 

critical habitat for the southwestern 

willow flycatcher within those portions 

of Camp Pendleton that are leased to the 

State (San Onofre State Beach) because 

this area is important for southwestern 

willow flycatchers. 

Our Response: We agree with the 

commenter that this area is important 

for the conservation of the southwestern 

willow flycatcher. However, we have 

exempted these lands that are leased to 

the State because they are within the 

area covered by Camp Pendleton’s 

INRMP (see the Application of Section 

3(5)(A) and 4(a)(3) and Exclusions 

Under Section 4(b)(2) of the Act section 

for a detailed discussion). Because the 

INRMP provides an overall conservation 

benefit to the southwestern willow 

flycatcher, these lands are exempt from 

critical habitat pursuant to section 

4(a)(3). 

Comments Related to Tribal Lands 

(50) Comment: A variety of 

commenters stated that the Service 

needs to work more closely to 

meaningfully contact the Bureau of 

Indian Affairs and/or Tribes to fully 

meet the tenet of Executive Order 13175 

and Secretarial Order 3206. 

Our Response: We agree that we need 

to work closely with Tribes and Pueblos 

potentially impacted by the designation 

of critical habitat. We increased our 

efforts to work with the Tribes/Pueblos 

throughout the process of developing 

this rule. Each Tribe possibly affected 

by this rule was contacted when we 

published our notice of intent to 

designate critical habitat and conduct 

NEPA. They were also provided with 

the location of scoping meetings we 

were holding near their area. We later 

contacted all Tribes/Pueblos specifically 

requesting management plans and 

offering Government-to-Government 

consultations. We provided two 

newsletters updating this process and 

contacted each Tribe/Pueblo when the 

proposed rule was published. We 

provided all Tribes/Pueblos included in 

the draft proposal a Management Plan 

template. Representatives from local 

field offices in AZ, CA, and NM 

contacted Tribes/Pueblos in person, 

through telephone calls, and/or during 

meetings to inform them about this rule 

and offer help with development of 

management plans. In many cases, the 

Service provided review and assisted 

Tribes in the development of 

management plans. We contacted each 

Tribe/Pueblo when the draft Economic 

Analysis and draft Environmental 

Assessment were made available and 

informed them of the dates and 

locations of public hearing and open 

house meetings. We held an open house 

meeting specifically for the Pueblos in 

NM. We intend to keep improving our 

relationships with the Tribes and the 

Bureau of Indian Affairs following the 

tenets of Secretarial Order 3206 and 

Executive Order 13175. 

Comments Related to HCPs, NCCP 

Programs, and Other Exclusion Areas 

(51) Comment: Several comments 

were supportive of the policy that lands 

covered by approved and nearly 

completed HCPs that provide take 

authorization for the southwestern 

willow flycatcher should be excluded 

from critical habitat. Several of these 

commenters also requested that HCP 

exclusions should also apply to draft 

HCPs, lands enrolled in the NCCP 

program, and lands covered by the Joint 

Water Agency (JWA) draft plan. 

Our Response: While we trust that 

jurisdictions will attempt to fulfill their 

commitment to complete conservation 

plans, this voluntary enrollment does 

not assure that such plans will be 

finalized. Protections for southwestern 

willow flycatcher habitat provided 

through participating jurisdiction’s 

enrollment in the California’s Natural 

Communities Conservation Program 

(NCCP) processes are temporary and are 

not assured; such protections may be 

lost if the jurisdiction elects to 

withdraw from the NCCP program. 

Guidelines for the NCCP program direct 

habitat loss to areas with low long-term 

conservation potential that will not 

preclude the development of adequate 

NCCP/HCP plans and ensure that 

connectivity between areas of high 

habitat value will be maintained. We 

will consider excluding lands within 

pending HCP areas where we have 

received a permit application from the 

participants, an environmental analysis 

has been completed and released for 

public review and comment under the 

authority of NEPA, and we have 

completed a preliminary review of the 

HCP to ensure that the issuance of the 

associated incidental take permit would 

not result in a jeopardy or adverse 

modification finding for the subject 

species or its designated critical habitat. 

By completing these criteria, 

jurisdictions demonstrate their intent to 

finalize their HCP/NCCPs. 

(52) Comment: Several comments 

stated that the designation of critical 

habitat removes incentives to participate 

in NCCP and HCP processes, in part 

because of added regulatory uncertainty, 

increased costs to plan development 

and implementation, weakened 

stakeholder support, delayed approval 

and development of the plan, and 

greater vulnerability to legal challenge. 

Our Response: HCPs and NCCPs in 

California are one of the most important 

tools for reconciling land use with the 

conservation of listed species on nonFederal lands. We look forward to 

working with applicants to ensure that 

their plans meet the issuance criteria 

and that the designation of critical 

habitat on lands where a HCP/NCCP is 

in development does not delay the 

approval and implementation of their 

HCP/NCCP. 

(53) Comment: One commenter asked 

whether the designation of critical 

habitat would be considered a changed 

and unforeseen circumstance with 

respect to the various HCPs presently 

approved or pending. 

Our Response: If an area covered by 

a HCP was designated as critical habitat, 

it would cause the Service to reinitiate 

section 7 consultation on the issuance of 

that permit and evaluate critical habitat. 

However, approved or pending HCPs 

that were determined to provide a 

benefit to the conservation of the 

southwestern willow flycatcher and 

were excluded from the critical habitat 

designation would not cause a changed 

circumstance or reinitiation of section 7 

consultation because no critical habitat 

would be designated in those areas (see 

60898 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

Application of Sections 3(5)(A), 4(a)(3), 

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

the Act). The lone HCP where critical 

habitat is designated is along the Virgin 

River in Clark County, NV. In this 

instance, the Service would reinitiate 

section 7 consultation. See comment 56 

below for further explanation. However, 

due to our ‘‘no surprises’’ regulation, we 

would expect no additional measures 

required above and beyond those 

already established in the HCP. 

(54) Comment: Several comments 

stated multiple reasons for why 

essential southwestern willow 

flycatcher habitat within several HCPs, 

military installations, tribes, etc. should 

not be excluded from critical habitat. 

They stated that the benefit of 

designating these areas as critical 

habitat outweighs the benefits of 

excluding them because exclusions are 

based partly on speculative and 

unproven future activities and critical 

habitat provides a greater benefit than 

measures contained in draft and 

approved conservation plans. They also 

stated that the Service unlawfully 

predetermined the benefits of excluding 

essential habitat because our 

determination was made prior to 

soliciting public review. 

Our Response: In many cases, 

partnerships with individual 

landowners and conservation 

agreements with a variety of 

stakeholders can provide a much greater 

conservation benefit for the 

southwestern willow flycatcher and 

other species, as they offer proactive 

positive management actions on private 

lands that cannot be achieved through a 

critical habitat designation. We have 

determined that the exclusion of certain 

lands covered by HCPs, INRMPs, tribal 

management plans, and others from 

critical habitat designation will not 

result in the extinction of the 

southwestern willow flycatcher and that 

a greater conservation benefit to the 

flycatcher than from a critical habitat 

designation will be provided (see the 

Application of Section 3(5)(A) and 

4(a)(3) and Exclusions Under Section 

4(b)(2) of the Act section for a detailed 

discussion). 

However, we did not reach this 

conclusion prior to receipt of public 

comment as contended in this comment; 

areas excluded from the draft proposal 

because of their inclusion in HCPs or 

coverage by INRMPs were identified as 

such, proposed justifications offered for 

public review, and notice was provided 

that these areas might be included in the 

final designation based on public 

comments. 

(55) Comment: One commenter asked 

whether areas covered under existing 

section 7 permits can be excluded from 

critical habitat in a manner similar to 

areas under existing section 10 permits. 

Our Response: Consultation under 

section 7 of the Act does not always 

result in the issuance of an incidental 

take permit for listed species. Federal 

actions where we conclude that the 

project is not likely to jeopardize the 

continued existence of a listed species 

are exempted from the prohibition 

against take of listed animal species 

under section 9 of the Act when the 

Federal agency, and any permittee 

comply with the terms and conditions 

of the incidental take statement 

accompanying the Service’s biological 

opinion. Proposed Federal projects do 

not necessarily commit a Federal agency 

to protect an area for a listed species, 

and in many instances the Federal 

agency is only permitting an action and 

does not have land management 

authority. Section 7 of the Act only 

commits a Federal agency to not 

jeopardize a species or cause adverse 

modification of critical habitat due to a 

specific project it initiates, permits, or 

funds. Typically HCPs provide greater 

conservation benefits to a covered 

species by assuring the long-term 

protection and management of a covered 

species and its habitat, and funding for 

such management is assured through 

the standards found in the 5-Point 

Policy for HCPs (64 FR 35242), the HCP 

No Surprises regulation (63 FR 8859), 

and relevant regulations governing the 

issuance and implementation of HCPs, 

such as those requiring the permittee to 

minimize and mitigate the taking to the 

maximum extent practicable. However, 

such assurances are typically not 

provided in connection with Federal 

projects subject to section 7 

consultations which, in contrast to 

activities on non-Federal lands covered 

by HCPs, are not required to and often 

do not commit to long-term special 

management or protections. Thus, a 

consultation unrelated to a HCP 

typically does not accord the lands it 

covers the extensive benefits a HCP 

provides. However, management of 

some Federal lands included in this 

designation, such as Lake Isabella, 

Roosevelt Lake, and Horseshoe Lake 

provide protection of southwestern 

willow flycatcher habitat in conjunction 

with section 7 consultation and/or HCPs 

(see the Application of Section 3(5)(A) 

and 4(a)(3) and Exclusions Under 

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

cases where we have determined that 

conservation by a Federal landowner 

provides a substantial, long-term benefit 

to the species, we have excluded these 

Federal lands from the critical habitat 

designation (see the Application of 

Section 3(5)(A) and 4(a)(3) and 

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

Act section). 

(56) Comment: We received a few 

comments recommending we exclude 

the Virgin River as a result of the Clark 

County HCP. 

Our Response: The Clark County 

Multiple Species Habitat Conservation 

Plan (MSHCP) was completed in 

November 2000, and the incidental take 

permit was issued on January 9, 2001. 

The southwestern willow flycatcher, as 

well as five additional riparian obligate 

species, was included in the MSHCP 

and permit application. The permit 

issued for the MSHCP covered the 

County, the Cities of Clark County, and 

Nevada Department of Transportation 

(permittees) for take of the covered 

species on all non-Federal Land with 

the County, up to a maximum loss of 

58,681 ha (145,000 ac) of habitat within 

a 30-year period. However, due to the 

relatively large percentage of riparian 

habitat that occurs on non-Federal 

lands, the permit obligated the County 

to fulfill certain conditions prior to 

authorization of take of the avian 

riparian obligate species. These 

conditions include (1) the development 

of conservation management plans that 

identify the management and 

monitoring actions needed for desert 

riparian habitats along the Muddy River, 

Virgin River, and Meadow Valley Wash; 

and (2) the acquisition of private lands 

in desert riparian habitats along the 

Muddy River, Virgin River, and 

Meadow Valley Wash, with the total 

number and location of hectares (acres) 

within each watershed to be identified 

in the conservation management plans. 

These two conditions have not yet been 

fulfilled, as the development of the 

conservation management plans has not 

yet begun. A habitat conservation 

planning process has been initiated for 

the Virgin River, but planning efforts 

have not yet identified the activities that 

may impact the species, or the 

conservation actions that would be 

required to offset those impacts. Until 

these conditions are met, the permittees 

are not authorized for take of the 

flycatcher, or the other covered riparian 

obligate species in the event they are 

listed under the Act. Given the lack of 

progress the permittees have 

demonstrated in fulfilling these 

conditions, we have determined that the 

status of the conservation planning for 

the Virgin River falls short of meeting 

the criteria for exclusion under section 

4(b)(2) of the Act. 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60899 

Comments Related to Economic Impacts 

and Analysis; Other Relevant Impacts 

Policy Issues 

(57) Comment: Several commenters 

state that the economic analysis should 

incorporate the recent ruling in the 

Ninth Circuit Court of Appeals, Gifford 

Pinchot Task Force v. U.S. Fish and 

Wildlife Service. 

Our Response: The economic analysis 

acknowledges that a recent Ninth 

Circuit judicial opinion, Gifford Pinchot 

Task Force v. United States Fish and 

Wildlife Service, has invalidated the 

Service’s regulation defining destruction 

or adverse modification of critical 

habitat. The Service is currently 

reviewing the decision to determine 

what effect it (and to a limited extent 

Center for Biological Diversity v. Bureau 

of Land Management (Case No. C–03–

2509–SI, N.D. Cal.)) may have on the 

outcome of consultations pursuant to 

section 7 of the Act. 

(58) Comment: Several comments 

stated that the economic analysis fails to 

use the proper baseline for analysis as 

determined in New Mexico 

Cattlegrowers’ Association (10th Circuit 

Court of Appeals). Two comments 

stated that the economic analysis should 

differentiate between impacts of listing 

and impacts of critical habitat 

designation. Another comment stated 

that the economic analysis should 

describe the costs of designation above 

and beyond those costs associated with 

past and future conservation activities, 

including listing, ongoing activities, and 

potential future conservation costs. 

Our Response: The economic analysis 

estimates the total cost of species 

conservation activities without 

subtracting the impact of pre-existing 

baseline regulations (i.e., the cost 

estimates are fully co-extensive). In 

2001, the U.S. 10th Circuit Court of 

Appeals instructed the Service to 

conduct a full analysis of all of the 

economic impacts of proposed critical 

habitat designation, regardless of 

whether those impacts are attributable 

co-extensively to other causes (New 

Mexico Cattle Growers Ass’n v. USFWS, 

248 F.3d 1277 (10th Cir. 2001)). The 

economic analysis complies with 

direction from the U.S. 10th Circuit 

Court of Appeals. 

This analysis identifies those 

economic activities believed to most 

likely threaten the flycatcher and its 

habitat and, where possible, quantifies 

the economic impact to avoid, mitigate, 

or compensate for such threats within 

the boundaries of the critical habitat 

designation. In instances where critical 

habitat is being proposed after a species 

is listed, some future impacts may be 

unavoidable, regardless of the final 

designation and exclusions under 

4(b)(2). However, due to the difficulty in 

making a credible distinction between 

listing and critical habitat effects within 

critical habitat boundaries, this analysis 

considers all future conservation-related 

impacts to be coextensive with the 

designation. 

(59) Comment: One comment stated 

that the economic analysis did not 

identify the criteria or analytical 

methods by which the Secretary will 

make the decision on where benefits of 

including areas in the critical habitat 

designation for flycatcher outweigh the 

benefits of excluding areas from the 

critical habitat designation. One 

comment stated that the economic 

analysis failed to determine whether 

benefits of inclusion outweigh the 

benefits of exclusion within each 

flycatcher management unit. Another 

comment specifically noted that the 

economic analysis does not identify 

biological terms that are used to balance 

the benefits and costs of designation. 

Finally, one comment stated that the 

cost-effectiveness approach is the 

appropriate method to use in weighing 

the costs and benefits of critical habitat 

designation, and that the economic 

analysis does not use this method. 

Our Response: In the context of a 

critical habitat designation, the primary 

purpose of the rulemaking (i.e., the 

direct benefit) is to designate areas in 

need of special management that 

contain the features that are essential to 

the conservation of listed species. 

The designation of critical habitat 

may result in two distinct categories of 

benefits to society: (1) Use; and (2) nonuse benefits. Use benefits are simply the 

social benefits that accrue from the 

physical use of a resource. Visiting 

critical habitat to see endangered 

species in their natural habitat would be 

a primary example. Non-use benefits, in 

contrast, represent welfare gains from 

‘‘just knowing’ that a particular listed 

species’’ natural habitat is being 

specially managed for the survival and 

recovery of that species. Both use and 

non-use benefits may occur 

unaccompanied by any market 

transactions. 

A primary reason for conducting this 

analysis is to provide information 

regarding the economic impacts 

associated with a proposed critical 

habitat designation. Section 4(b)(2) of 

the Act requires the Secretary to 

designate critical habitat based on the 

best scientific data available after taking 

into consideration the economic impact, 

and any other relevant impact, of 

specifying any particular area as critical 

habitat. Economic impacts can be both 

positive and negative and by definition, 

are observable through market 

transactions. 

Where data are available, this analysis 

attempts to recognize and measure the 

net economic impact of the proposed 

designation. For example, if the fencing 

of a species’ habitat to restrict motor 

vehicles results in an increase in the 

number of individuals visiting the site 

for wildlife viewing, then the analysis 

would recognize the potential for a 

positive economic impact and attempt 

to quantify the effect (e.g., impacts that 

would be associated with an increase in 

tourism spending by wildlife viewers). 

In this particular instance, however, the 

economic analysis did not identify any 

credible estimates or measures of 

positive economic impacts that could 

offset some of the negative economic 

impacts analyzed earlier in this 

analysis. 

Under Executive Order 12866, OMB 

directs Federal agencies to provide an 

assessment of both the social costs and 

benefits of proposed regulatory actions. 

OMB’s Circular A–4 distinguishes two 

types of economic benefits: Direct 

benefits and ancillary benefits. 

Ancillary benefits are defined as 

favorable impacts of a rulemaking that 

are typically unrelated, or secondary, to 

the statutory purpose of the rulemaking. 

In the context of critical habitat, the 

primary purpose of the rulemaking (i.e., 

the direct benefit) is the potential to 

enhance conservation of the species. 

The published economics literature has 

documented that social welfare benefits 

can result from the conservation and 

recovery of endangered and threatened 

species. In its guidance for 

implementing Executive Order 12866, 

OMB acknowledges that it may not be 

feasible to monetize, or even quantify, 

the benefits of environmental 

regulations due to either an absence of 

defensible, relevant studies or a lack of 

resources on the implementing agency’s 

part to conduct new research. Rather 

than rely on economic measures, the 

Service believes that the direct benefits 

of the proposed rule are best expressed 

in biological terms that can be weighed 

against the expected cost impacts of the 

rulemaking. 

We have accordingly considered, in 

evaluating the benefits of excluding 

versus including specific area, the 

biological benefits that may occur to a 

species from designation (see below, 

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

Act), but these biological benefits are 

not addressed in the economic analysis. 

General Issues 

(60) Comment: One comment stated 

that the economic analysis should 

60900 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

combine efficiency and distributional 

impacts for each management unit. 

Our Response: As stated in Section 1 

of the economic analysis, efficiency and 

distributional economic impacts are 

fundamentally different measurements 

of economic impact, and as such, cannot 

be added or directly compared. See 

section 1 of the economic analysis for a 

more detailed discussion of the 

distinctions between these terms. 

(61) Comment: One comment stated 

that the economic analysis should 

consider the cumulative effects of 

flycatcher habitat and other existing and 

proposed critical habitat designations in 

Southern California. 

Our Response: The economic analysis 

quantifies economic effects associated 

with flycatcher conservation activities. 

This information is intended to assist 

the Service in determining whether the 

benefits of excluding particular areas 

from the designation outweigh the 

benefits of including those areas. It is 

therefore beyond the scope of the 

economic analysis to evaluate the 

cumulative effects of all previous 

designations. 

(62) Comment: Two comments stated 

that the economic analysis 

underestimates the length of delay on 

projects that are subject to Section 7 

consultations (e.g. water facility 

maintenance, fire management 

activities). 

Our Response: The revised analysis 

includes a discussion of the potential 

impacts of delay in Section 4 (Water 

Management), Section 6 (Development) 

and Section 10 (Other Activities). 

Mining Issues 

(63) Comment: Several comments 

stated that the economic analysis failed 

to consider potential economic impacts 

of the flycatcher critical habitat 

designation on mining activities in the 

southwestern United States. 

Our Response: The draft economic 

analysis did not discuss potential 

impacts to mining activities. Based on 

information provided during the public 

comment period from mining interests, 

the economic analysis has been revised 

to include a chapter that considers 

potential impacts to the mining 

industry. 

Water Issues 

(64) Comment: At least two public 

comments question how flycatcher 

critical habitat designation may impact 

existing state and Federal water law. 

Our Response: The Recovery Plan 

recognizes a number of legal constraints 

on the Service’s or other action agencies 

ability to modify water management 

practices to protect for the flycatcher, 

including water rights, delivery 

contracts, legal commitments to power 

generation, and requirements for flood 

control. These types of arrangements 

exist on many of the rivers included in 

critical habitat designation areas. 

However, where legal precedents exist, 

no changes to water law are anticipated 

to result from this rulemaking. For 

example, currently there is no legal 

requirement for USBR to maintain water 

levels below flycatcher habitat at the 

lake created by Hoover Dam [Southwest 

Center for Biological Diversity v. U.S. 

Bureau of Reclamation, 143 F.3d 515 

(9th Cir. 1998)]. The Department of the 

Interior has interpreted the U.S. 

Supreme Court’s injunction [Arizona v. 

California, 376 U.S. 340 (1964)] as 

precluding the release of water from 

Lake Mead for the sole purpose of 

protecting flycatcher habitat. Congress 

has also enacted legislation to prohibit 

USBR from releasing San Juan/Chama 

water for flycatcher management 

purposes at Heron Reservoir. 

(65) Comment: One comment 

questioned a number of water price and 

supply assumptions in the economic 

analysis. First, the comment stated that 

the economic analysis makes water 

price assumptions that are inappropriate 

given the large water supply potentially 

impacted by the critical habitat 

designation, the probable difference in 

the marginal value of water across 

different scenarios, and the variation in 

water prices over time. This comment 

also stated that the economic analysis 

makes water supply assumptions that 

fail to consider the costs of alternate 

water supply sources, barriers to water 

reallocation and marketing, and water 

supply conditions in relatively dry 

years. 

Our Response: Scenario 2 provides 

context for understanding the 

magnitude of impacts that could occur 

if operators are forced to alter water 

management in order to avoid adverse 

modification of habitat. As stated in 

Section 4 of the economic analysis, 

considerable uncertainty surrounds 

Scenario 2 and the probability of 

various outcomes is unknown. As 

discussed in the economic analysis, 

detailed assessment of the economic 

impacts on facilities and end users 

would require detailed system-wide 

hydrologic and economic models. That 

is, the analysis would require models 

that predict changes in water allocation 

under alternative water management 

regimes and the behavioral responses of 

various water users when faced with 

potential shortfalls and/or higher water 

prices. Such models do not exist for 

most areas potentially affected by 

flycatcher conservation activities. As a 

result, this analysis utilizes best 

available data and simplifying 

assumptions to provide estimates that 

bound the magnitude of potential 

impacts that could result from 

alterations to water operations. 

Given the geographic and 

hydrological variation across systems, it 

is unlikely that all facilities will lose 

storage capacity in the same year. 

Furthermore, the economic analysis 

assumes that flycatcher conservation 

measures will not affect regional water 

markets or prices because the potential 

storage capacity lost represents a very 

small component of the total available 

storage capacity. Refer to Exhibits 4–3, 

4–7, and Appendix exhibits A–2, A–3 

and A–4. 

This analysis conservatively assumes 

that any spilled water is lost from 

consumptive (i.e., municipal, industrial, 

commercial, etc.) use and develops an 

approximate estimate of related 

economic losses using information on 

water rights prices and other 

replacement costs. This analysis 

assumes that these costs are a 

reasonable proxy for the value of water 

in conservation storage, and the value 

lost when storage is limited. Note that 

the market value of consumptive water 

rights is dependent on a variety of 

considerations, including priority and 

point of diversion, among other factors. 

If the actual cost of water is higher (or 

lower) than the reported cost, the 

economic impacts will also be higher (or 

lower). 

The economic analysis estimates costs 

to water storage facilities based on 

average conditions. In reality, some 

years are wetter or dryer than others. 

Dry-year constraints may create an 

additional economic burden for water 

managers. The revised economic 

analysis presents information on the 

likely amount of spill that would be 

needed in the 50th and 95th percentile 

driest water years, to provide a sense of 

the sensitivity of the results presented. 

(66) Comment: Several comments 

highlight water supply and flood control 

structures and projects that are not 

considered in the economic analysis, 

and for which they claim potential 

impacts are possible pursuant to critical 

habitat designation for flycatcher. In 

addition, two comments state that the 

economic analysis failed to consider the 

potential loss of the ability to divert 

surface and groundwater in the Little 

Colorado MU and the Upper Gila MUs. 

Our Response: The revised economic 

analysis incorporates a discussion of 

potential economic impacts on water 

users in the Little Colorado, Upper Gila 

MUs, and other concerned areas for 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60901 

which public comments were 

submitted. 

Section 4 of the economic analysis 

provides an analysis of economic 

impacts associated with flycatcher 

conservation activities related to water 

management activities, including dam 

operations, hydropower production, 

water diversion, groundwater pumping, 

river channelization, and bank 

stabilization. As discussed in Section 4, 

detailed assessment of the economic 

impacts on facilities and end users 

would require detailed system-wide 

hydrologic and economic models. This 

analysis utilizes best available data and 

simplifying assumptions to provide 

estimates that bound the magnitude of 

potential impacts that could result from 

alterations to water operations in 

proposed critical habitat designation 

areas. 

(67) Comment: One commenter states 

that the assumption that, in the case of 

Horseshoe Reservoir, reservoir managers 

will adapt water management to avoid 

water losses caused by a reduction in 

reservoir capacity over time is 

unrealistic because the storage capacity 

of the reservoirs is small in relation to 

the flow of the river system, and thus 

water losses would occur. Second, the 

commenter states that the economic 

analysis inappropriately downplays the 

loss of water resulting from flycatcher 

critical habitat designation by stating 

that some windfall use by downstream 

users may occur. Another comment 

states that the assumption made in the 

economic analysis related to Scenario 2 

do not consider the recent drought and 

current low water levels, or ongoing 

population growth and resulting 

increases in water demand. 

Our Response: The ability of storage 

facilities to adapt water management 

practices is unique for each facility 

based on hydrology, water management 

system, and current legal water 

agreements. Some facilities may be able 

to adapt management practice to reduce 

water losses due to flycatcher 

conservation measures, while others 

may not. As stated in Section 4 of the 

economic analysis, analysis does not 

subtract any costs associated with 

‘‘windfall’’ downstream use of water 

following spillage—that is, this analysis 

assumes that all water released will be 

not be used by downstream users (i.e., 

lost to the ocean). 

However, we agree that flycatcher 

conservation measures may impose 

additional costs and changes on top of 

significant ongoing trends, including 

long-term drought, in the Southwest. 

The economic analysis notes in Section 

4 that flycatcher conservation measures 

may accelerate and compound ongoing 

trends in natural resource use in the 

Southwest, including increasing 

population growth and long-term 

droughts. 

Tribal Issues 

(68) Comment: Numerous comments 

state that the economic analysis does 

not address the full suite of impacts to 

affected Tribes. Two comments state 

that estimates included in the economic 

analysis grossly understate the real 

economic costs to Tribal governments of 

critical habitat designation on Tribal 

lands. Another comment states that 

administrative costs to Tribes are not 

adequately discussed in the economic 

analysis. Three Tribes were concerned 

that they were overlooked in the 

economic analysis: Taos Pueblo, the 

Pueblo of Isleta, and the Santo Domingo 

Tribe. 

Our Response: Section 7 of the 

economic analysis presents all available 

information regarding potential 

flycatcher conservation activities that 

have affected or which may affect the 

fifteen Tribes whose lands fall within 

proposed critical habitat designation 

areas. Attempts were made to contact 

each Tribe with lands in proposed 

critical habitat designation, as well as a 

number of other Tribes outside of 

critical habitat designation that 

expressed concern about potential 

impacts on them. Exhibit 7–3 

summarizes potential impacts on the 

Tribes, and highlights where costs to the 

Tribes are unknown. Section 7 of the 

economic analysis also notes that 

publicly available information was not 

always available to fully assess the 

potential costs of flycatcher 

conservation activities. The revised 

economic analysis now includes a 

statement that ‘‘in many cases, 

information was not available for costs 

of flycatcher conservation activities [to 

Tribes], such as species surveys. In 

addition, administrative costs [to Tribes] 

of compliance with the Act are often not 

known. Overall, the absence of cost 

information related to the potential 

impacts of flycatcher conservation on 

Tribal lands results in a probable 

underestimate of future costs to Tribal 

entities in this section.’’

Known potential administrative costs 

are included Section 3 of this analysis. 

However, some additional 

administrative costs of compliance with 

ESA are unknown and therefore not 

included in estimates. To the extent that 

these unknown administrative costs 

relate to southwestern willow 

flycatcher, administrative costs 

estimates for the Tribes may be 

underestimated. Section 7 

acknowledges this limitation. 

The economic analysis did not 

include Taos Pueblo or Santo Domingo 

in the its analysis of potential economic 

impacts to tribal activities since they fall 

outside of critical habitat designation 

areas. The economic analysis discussed 

potential impacts on the Pueblo of Isleta 

in Section 7 of the economic analysis. 

However, public comments submitted 

by the Tribe expressed concerns related 

to economic, cultural, and treaty 

impacts of critical habitat designation. 

Additional information provided in 

these comments were incorporated into 

the economic analysis. 

Grazing Issues 

(69) Comment: Numerous comments 

state that the economic analysis 

underestimates impacts of flycatcher 

critical habitat designation to grazing 

and does not consider the impact that 

even a small reduction in AUMs may 

have on ranching operations. 

Our Response: Section 5 of the 

economic analysis examines potential 

impacts on grazing activities that 

include exclusion or removal of 

livestock grazing from riparian areas 

year-round or during the flycatcher 

breeding season. In many cases, the 

estimates include impacts that may be 

associated with other riparian habitat 

initiatives and other endangered 

species. Estimates also include potential 

impacts on private lands grazing, 

although the Service questions the 

assumption that private grazing will be 

affected in the future. The analysis 

includes a range that includes the 

potential for all private grazing to be 

removed from the riparian are due to 

flycatcher conservation activities. As a 

result, Section 5 acknowledges that the 

loss of 89,000 AUMs is conservative, 

that is, estimates are more likely to 

overstate than understate impacts due to 

flycatcher. 

Section 5 of the revised economic 

analysis now recognizes the possibility 

that small reductions in AUMs could 

affect the viability of some ranching 

operations. The analysis now places 

impacts that could occur in the context 

of the economics of ranching, and 

points out that ‘‘ranchers often have 

debts to repay that rely on the current 

number of AUMs grazed. NMCA states 

that even small cuts in the number of 

AUMs grazed by these ranchers can 

affect the financial stability of those 

operations.’’

(70) Comment: One commenter states 

that estimated impacts on grazing 

activities are overstated. The commenter 

states that the economic analysis 

inappropriately assigns grazing impacts 

to flycatcher, as opposed to other 

species or causes. 

60902 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

Our Response: Section 5.2.2 of the 

economic analysis discusses factors that 

affect the number of permitted and 

authorized AUMs approved by USFS 

and BLM for a given Federal grazing 

allotment. These factors include the 

presence of endangered species, tree 

encroachment, fire suppression, forage 

availability, and forage by other 

ungulates. The analysis states that ‘‘on 

a particular allotment containing 

flycatcher habitat, reductions to 

authorized or permitted AUMs made by 

USFS or BLM may be: (1) Directly 

related to flycatcher conservation; (2) 

indirectly related to flycatcher 

conservation; (3) not related to 

flycatcher conservation at all; or (4) 

resulting from a combination of factors.’’

The analysis then explains each 

scenario in detail, and suggests that in 

most cases, reductions in AUMs result 

from a combination of factors. The 

analysis also concludes that because of 

the spatial and temporal overlap of past 

reductions in AUMs with flycatcher 

habitat, it is difficult to separate 

flycatcher-related causes from other 

causes of changes that occur in 

flycatcher critical habitat designation 

areas. Section 5 acknowledges that the 

loss of 89,000 AUMs is conservative, 

that is, estimates are more likely to 

overstate than understate impacts due to 

flycatcher. 

(71) Comment: One comment states 

that the economic analysis does not 

consider impacts to ranching activities 

outside of flycatcher critical habitat 

designation. 

Our Response: Ranching activities 

located outside of the proposed critical 

habitat designation were not expected to 

experience direct economic impacts 

related to the designation, and therefore 

these activities are not specifically 

addressed in the analysis. However, to 

the extent that there are regional 

economic impacts related to restrictions 

on grazing activities, these have been 

captured in the regional economic 

impact analysis of grazing. This analysis 

is presented in Section 5 of the final 

economic analysis. 

Transportation Issues 

(72) Comment: One comment states 

that the economic analysis 

underestimates impacts of flycatcher 

critical habitat designation on future 

transportation projects based on the 

uncertainty associated with these 

projects; however, the economic 

analysis should use caveats and 

assumptions as it does with other 

activities to estimate future 

transportation projects. One comment 

states that the economic analysis does 

not take into account economic impacts 

on the Foothill/Eastern Transportation 

Corridor Agency and the Corridor. 

Our Response: The economic analysis 

analyzes potential impacts 

transportation activities in Section 8. 

Conversations with state transportation 

agency staff, identified 11 transportation 

projects in NV (1), NM (3), and AZ (7) 

expected to occur in critical habitat 

designation areas in the future. No 

projects were identified in critical 

habitat designation areas by UT 

Department of Transportation or the CO 

Department of Transportation. Using the 

CA Transportation Investment System, 

the economic analysis identified 8.4 km 

(5.2 mi) of highway construction and 

improvements expected to occur within 

critical habitat designation areas in the 

future in CA. The economic analysis 

relied on the expertise of state 

transportation agencies to identify 

future projects that occur within critical 

habitat designation areas. In addition, 

major road projects are generally 

planned and constructed over a very 

long time horizon. As such, it is 

reasonable to assume that state 

transportation agencies will have the 

best information available regarding 

future transportation projects. 

The economic analysis did not take 

into account economic impacts to the 

Foothill/Eastern Transportation 

Corridor Agency (TCA). Analysis of this 

project has been added in Section 8.2.1. 

based on public comments submitted by 

TCA. 

Development Issues 

(73) Comment: One comment states 

that the economic analysis mistakenly 

assumes that there is no projected 

development in proposed critical 

habitat designation in San Diego 

County. 

Our Response: As described in section 

6 of this analysis, floodplain 

development is assumed to be most 

probable in those census tracts that are 

densely populated and largely devoid of 

opportunities for new development 

(thereby necessitating development 

within the floodplain). Specifically, in 

CA, those census tracts intersecting 

flycatcher habitat that are both the most 

densely populated (i.e., the densest 25 

percent of tracts intersecting habitat) 

and least developable (i.e., the least 

developable 25 percent of tracts 

intersecting habitat) are isolated for 

further analysis. This included the 

census tract discussed in the comment. 

To analyze development projections, 

GIS maps of the proposed critical 

habitat designation boundaries were 

correlated with census tract level data 

provided by the San Diego Association 

of Governments (SANDAG). SANDAG is 

a quasi-governmental agency 

responsible for providing official 

demographic projections for San Diego 

County. The SANDAG land use 

projections are used to identify 

undeveloped acres slated for residential, 

retail, office, or industrial development. 

SANDAG provides acreage estimates for 

these land use categories. At this time, 

SANDAG does not project growth in 

proposed critical habitat designation 

areas in San Diego County. 

(74) Comment: Two comments raised 

concerns concerning impacts of 

flycatcher critical habitat designation on 

the regional real estate market. One 

comment states that the DEA incorrectly 

concludes that critical habitat 

designation will not have a significant 

impact on the regional real estate 

market. Another comment states that the 

DEA makes unrealistic conclusions 

about how the critical habitat 

designation would affect residential real 

estate downstream of Seven Oaks Dam 

and along the San Ana River’s 

tributaries. 

Our Response: To determine the 

regional significance of flycatcher 

conservation activities on the real estate 

market, the economic analysis compares 

the reduction in acres slated for 

development to market-wide demand 

and supply conditions. Ideally, land setaside requirements should be compared 

with the total supply of developable 

acreage in the region. However, accurate 

estimates of total regional development 

potential were not readily available. 

Consequently, projected acres of growth 

through 2023 in the three Counties 

where floodplain development is most 

probable are used as proxies for regional 

market supply. Total land development 

potential is based on SCAG and 

SANDAG forecasts. 

As discussed in Section 10 of the 

analysis, impacts are estimated to be 

0.04 percent of projected real estate 

supply. Thus, the set-aside land 

associated with flycatcher protection is 

not expected to affect the dynamics of 

the regional real estate market. Hence, 

housing prices in each County are not 

likely to be affected. However, regulated 

landowners will bear the cost associated 

with flycatcher protection, in the form 

of lower property values. As this 

analysis assumes that the total supply of 

housing will be met, some projects may 

be distributed to other locations while 

others may proceed with higher 

flycatcher protection costs and lower 

land values. No broader effects on 

regional real estate prices are 

anticipated. 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60903 

Fire Management Issues 

(75) Comment: Two comments state 

that the economic analysis does not 

consider economic impacts to fire 

management activities in certain areas. 

One comment states that the economic 

analysis failed to consider impacts to 

the Rio Grande Valley State Park, and 

specifically the potential impacts to fire 

management within the park that is 

undertaken to prevent damage to 

adjacent residential and commercial 

areas. The other comment states that the 

economic analysis does not address 

potential wildland fire prevention and 

suppression costs for Arizona counties, 

including Graham County. 

Our Response: Section 10 of the 

revised economic analysis states that 

fire was probably uncommon in 

flycatcher habitat. However, fire in some 

riparian zones (primarily low and midelevation areas) has increased as a result 

of flood suppression, dewatering of 

rivers, and other manmade effects. 

These changes to the environment have 

led to the proliferation of more 

flammable exotic vegetation such as 

tamarisk, giant reed, and red brome. 

Ignition sources have also increased due 

to greater use of riparian areas from 

recreation and urbanization. 

In areas that are in relatively close 

proximity to large urban populations, 

fire management, including exotic 

species removal and fuels management, 

is a critical component of urban 

planning efforts. Thus, local officials in 

areas proximal to urban areas have 

understandable concerns with about 

ongoing and future plans for these 

activities, particularly exotic species 

removal (most particularly, tamarisk 

control). The revised economic analysis 

includes an expanded discussion of 

potential impacts on fire management 

activities. 

Agricultural Issues 

(76) Comment: Three comments state 

that the economic analysis does not 

adequately address the impact of 

flycatcher critical habitat designation on 

agricultural activities. One of these 

comments states that the economic 

analysis underestimates future 

consultation requirements because it 

does not consider the Federal nexuses 

that are present. 

Our Response: Section 5 of the 

economic analysis describes and 

quantifies potential impacts on ranching 

activities. Regarding potential impacts 

on crop agriculture, these are addressed 

as part of Scenario 2 for water 

management activities in Section 4. 

Because several water districts 

potentially affected under Scenario 2 for 

water management provide water for 

agricultural purposes, reductions in 

available water to these districts could 

result in corresponding reductions in 

irrigated crop acres for end users, if 

farmers are unable to switch to less 

water-intensive crops or find substitute 

water sources. Vail Dam, Isabella Dam, 

Horseshoe Dam, Roosevelt Dam, and the 

Lower Colorado systems dams all serve 

a significant number of agricultural 

users and are projected to lose water 

under Scenario 2. As detailed in Exhibit 

A–4, estimated water losses to districts 

supplying agricultural end users may 

reduce irrigated agricultural acreage in 

the affected counties by up to 12,520 ha 

(30,938 ac), assuming all reservoir 

facilities are affected. A cropland 

reduction of that magnitude would 

represent approximately 1.05 percent of 

total irrigated and non-irrigated 

cropland in the affected areas. 

Additional detail is provided in Section 

4 and Appendix A of the economic 

analysis. 

Small Business Issues 

(77) Comment: Numerous comments 

state that the economic analysis did not 

adequately estimate impacts of 

flycatcher critical habitat designation on 

small businesses. One comment states 

that the economic analysis does not 

quantify county-level impacts of AUM 

reductions, such as lost tax revenues. 

The other comment states that the 

economic analysis does not, and should, 

provide an economic and social analysis 

of how flycatcher critical habitat 

designation may impact each rural 

locality in the designation. 

Our Response: Appendix A considers 

the extent to which the analytic results 

presented in the main body of the 

economic analysis reflect potential 

future impacts to small businesses. 

Appendix A, Small Business Impacts, 

has been revised to provide additional 

details about the estimated location of 

potential impacts by county as well as 

by water user, where appropriate. The 

revised economic analysis presents 

impacts on grazing activities organized 

by county and on a per ranch basis in 

Appendix A. 

Recreational Issues 

(78) Comment: One commenter states 

that a late spring-early summer 

drawdown under Scenario 2 could 

affect recreation, including sport 

fisheries, at several reservoirs. One 

comment states that the economic 

analysis does not provide dollar values 

for the impacts of forest service 

closures. 

Our Response: Facility managers were 

consulted as to the potential for 

flycatcher conservation activities to 

impact recreational activities at affected 

reservoirs. To the extent that 

recreational impacts were identified, 

recreational impacts are presented in 

Chapter 10 of the final economic 

analysis. Section 10 of the revised 

economic analysis discusses the impacts 

of closures that have occurred for 

flycatchers, and quantifies these 

estimates where possible. Restrictions 

(primarily already in place) on certain 

uses of recreation areas in Tonto NF, 

AZ; San Bernardino NF, CA; and at Lake 

Isabella, CA, are discussed in detail in 

Section 10 of the revised economic 

analysis. 

Several studies have investigated how 

recreational impacts could change with 

varying reservoir levels (Cordell, K. H. 

and J. C. Bergstrom. 1993. Comparison 

of Recreation Use Values Among 

Alternative Reservoir Water Level 

Management Scenarios. Water 

Resources Research. 29 (2): 247–258; 

Huszar et al. 1999. Recreational 

damages from reservoir storage level 

changes. Water Resources Research) 

However, these studies were case 

specific, and were conducted in 

geographic areas distinct from those 

affected by potential flycatcher 

conservation activities. Conducting a 

site specific study of the impact of 

alternative water management regimes 

on recreation is beyond the scope of this 

analysis. 

Summary of Changes From the 

Proposed Rule 

In developing the final designation of 

critical habitat for the southwestern 

willow flycatcher, we reviewed public 

comments received on the proposed 

designation of critical habitat published 

on October 12, 2004; the draft economic 

analysis and draft environmental 

assessment published on April 28, 2005 

(70 FR 21988); conducted further 

evaluation of lands proposed as critical 

habitat; refined our mapping 

methodologies; excluded additional 

habitat containing features essential to 

the conservation of the subspecies from 

the final designation pursuant to section 

4(b)(2) of the Act; and exempted those 

military lands that met the criteria for 

statutory exemptions pursuant to 

section 4(a)(3) of the Act. Table 1, 

included at the end of this section, 

outlines changes in area for each 

subunit. Specifically, we are making the 

following changes to the final rule from 

the proposed rule published on October 

12, 2004: 

(1) In AZ, in response to comments, 

we made further site visits and/or reevaluated information through habitat 

models, maps, and reports, and made 

60904 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

changes to Pinto Creek, South Fork 

Little Colorado River, Big Sandy River, 

lower Verde River, and Bill Williams 

River. Further site visits, surveys, and 

evaluation occurred for Pinto Creek, the 

South Fork of the Little Colorado River, 

and lower Verde River segment below 

Bartlett Dam that resulted in 

determining that these segments were 

not essential for inclusion in critical 

habitat, and therefore we removed these 

entire segments. We examined habitat 

models and further analyzed the quality 

of habitat that resulted in shortening the 

Big Sandy River segment to more 

accurately reflect habitat with essential 

features. Through site-specific habitat 

evaluation reports, we re-examined the 

quality of habitat upstream from the Bill 

Williams National Wildlife Refuge at 

Planet Ranch, and determined that it 

contained features important, but not 

essential, to the conservation of the 

subspecies, and removed it from critical 

habitat. More discussion on these 

segments can be found in the 

appropriate Unit Descriptions below. 

(2) In NV, we identified in our 

proposal the Muddy River within the 

boundaries of the Overton State Wildlife 

Area, as an essential location we may 

consider for exclusion as a result of 

assurances, protections, and 

conservation benefit the flycatcher and 

its habitat receive from the State of 

Nevada’s ownership and management of 

the property. We did not identify in the 

text of the proposed rule that a segment 

of the Virgin River containing features 

essential to the conservation of the 

subspecies also lies within the 

boundaries of the Overton Wildlife 

Area. Our maps did however identify 

this essential segment of the Virgin 

River within the boundaries of the 

Overton Wildlife Area. We considered 

both the Muddy and Virgin River 

segments within the Overton Wildlife 

Area for exclusion, and subsequently, as 

described below under Relationship of 

Critical Habitat to State and Federal 

Wildlife Areas—Exclusions Under 

Section 4(b)(2) of the Act, have excluded 

these river segments from critical 

habitat. 

(3) In NV, we identified a 1.2 km (2 

mi) (approximately 158 ha/390 ac) 

segment of the Virgin River located 

between two distinct conservation lands 

on the Overton Wildlife Area, NV. As a 

result of this segment being surrounded 

by conservation lands, being detached 

from a considerably larger designated 

segment, being a very small piece of an 

overall large segment, and because a 

significant portion was purchased for 

conservation of wildlife, it is our 

determination that this segment is no 

longer essential for critical habitat and 

was removed from consideration. More 

discussion on this segment can be found 

in the appropriate Unit Description 

below. 

(4) In CA, in response to comments 

and further evaluation, we identify 

below entire proposed stream segments 

and portions of segments that we are not 

including in the final designation. We 

are not including Cuyamaca Lake in the 

final designation due to our reevaluation that the habitat included in 

the proposed designation provided 

minimal habitat for flycatchers, 

metapopulation stability, or prevention 

against catastrophic loss. Due to Forest 

Service, Bureau of Land Management, 

and Southern California Edison 

comments and our re-evaluation of river 

segments, portions of the Santa Ana 

River (below Seven Oaks Dam), 

Temescal Creek, Temecula Creek, Santa 

Ysabel River, Oak Glen Creek, and Mill 

Creek were determined to not be 

essential and removed. Due to these 

same comments and our further 

scrutiny, remaining segments of the San 

Diego River, San Timoteo Wash, 

Yucaipa Creek, and Wilson Creek were 

determined to not be essential which 

left no remaining designated habitat on 

those streams. The re-evaluation of 

these segments resulted in us more 

accurately reflecting essential habitat in 

this final rule. We also re-evaluated and 

removed the segment of Cristianitos 

Creek proposed upstream of Marine 

Corps Base, Camp Pendleton, because 

we determined it was not essential due 

to it unlikely being able to support 

flycatcher nesting habitat. More 

discussion on these segments can be 

found in the appropriate Unit 

Descriptions below. 

(5) In NM, in response to comments 

and further evaluation of maps, we 

removed the middle Gila Box, located 

primarily on the Gila National Forest 

upstream of Red Rock and downstream 

of the Gila Bird Area, because it does 

not have, nor can it support abundant 

vegetation and is unlikely to be able to 

support flycatcher nesting and 

migration habitat as a result of it being 

a narrow canyon. Also, four small 

pieces of vegetation surrounding the 

San Juan, Santa Clara, and San 

Illdefonso Pueblos are being removed 

from this designation. More discussion 

on this segment can be found in the 

appropriate Unit Description below. 

(6) Although we attempted to remove 

as many developed areas (areas that 

have no conservation value as 

southwestern willow flycatcher habitat) 

as possible before publishing the 

proposed rule, we were not able to 

eliminate all developed areas. Since 

publication of the proposed rule and the 

receipt of more accurate mapping data 

and information, we were able to further 

refine the designation, which has 

resulted in a more precise delineation of 

essential habitat containing one or more 

of the primary constituent elements. 

This resulted in a minor reduction from 

the total area published in the proposed 

rule. However, it is not possible to 

remove each and every one of these 

developed areas even at the refined 

mapping scale used; therefore, the maps 

of the designation may contain areas 

that do not contain primary constituent 

elements. Lands within the boundaries 

of the designation that do not contain 

one or more of the PCEs are not 

considered to be critical habitat for the 

flycatcher. 

(7) While mapping the lateral extent 

of critical habitat, some side drainages, 

tributaries, and/or washes were 

included in the Little Colorado, Middle 

Colorado, Verde, Middle Gila/San 

Pedro, Upper Gila Management Unit, 

and Upper Rio Grande Management 

Units that extend beyond the rivers we 

described in the proposal. These pieces 

of habitat sometimes extended about 2 

km (3 mi) along a tributary or wash not 

described in the proposal. We did not 

describe these segments in the text of 

the proposed rule. As a result, to the 

best of our ability, we have truncated 

these segments, so only those habitats 

on the rivers described are included in 

the final designation. We defer to the 

specific mapped boundaries of the final 

designation (http:// 

criticalhabitat.fws.gov). These areas 

extending up side drainages, tributaries, 

and/or washes are not intended to be 

included as critical habitat and are 

removed from the designation, leading 

to a minor reduction in the total area 

published in the proposed rule. 

(8) Due to peer review, comments, 

and re-evaluation of the PCEs, we reorganized and revised PCE numbers 1 

through 5 (as PCE 1, 1a, 1b, 1c, 1d, and 

1e) to more accurately reflect the 

content of our proposal by describing 

flycatcher uses of riparian habitat, the 

importance of a dynamic system and 

succession (i.e., germination and growth 

of riparian plants), and identifying 

specific riparian plant species. See the 

Primary Constituent Elements section 

below for specific language. 

(9) To more accurately reflect our 

proposal, we updated PCE number 6 to 

include the order Odonata (dragonflies) 

to the list of flying insects consumed by 

southwestern willow flycatchers and renumbered PCE number 6 as PCE 

number 2. See the Primary Constituent 

Elements section below for specific 

language. 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60905 

(10) Due to comments received, we 

have added two specific sections to this 

critical habitat rule that describe the 

geographical area occupied by the 

southwestern willow flycatcher and the 

nature of essential habitat not known to 

be within the geographical area 

occupied by the species at the time of 

listing. Please see the: Geographic Area 

Occupied by the Species and 

Justification of Including Areas Not 

Known To Be Within the Geographic 

Area Occupied by the Species at the 

Time of Listing sections below. 

(11) We have exempted State Lease 

lands (primarily Cristianitos Creek) 

included within the boundary of Marine 

Corps Base, Camp Pendleton per section 

4(a)(3). See the Relationship of Critical 

Habitat to Military Lands—Application 

of Section 4(a)(3) and Exclusions Under 

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

(12) We excluded river segments and 

reservoir bottoms under section 4(b)(2) 

of the Act and exempted two Military 

Areas under section 4(a)(3) of the Act 

from the final critical habitat 

designation (see the Application of 

Sections 3(5)(A) and 4(a)(3) and 

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

Act section below). This is the primary 

source of reduction in total designated 

critical habitat area that was identified 

in the proposed rule. Exemptions under 

section 4(a)(3) included identified 

streams within Marine Corps Base, 

Camp Pendleton and Naval Weapons 

Station, Seal Beach, Detachment 

Fallbrook based on their approved 

INRMPs. Exclusions pursuant to section 

4(b)(2) based on approved HCPs include 

San Diego County MSCP, Western 

Riverside County MSHCP, City of 

Carlsbad HMP, Roosevelt Lake HCP, and 

the Lower Colorado River MSCP. State 

Wildlife Areas excluded under section 

4(b)(2) include the Overton and Key 

Pittman State Wildlife Areas, NV, and 

Alamo State Wildlife Area, AZ. 

Additional Wildlife Conservation Areas 

excluded include the South Fork Kern 

River Wildlife Area and Sprague Ranch, 

Kern River, CA. We excluded, pursuant 

to section 4(b)(2) of the Act, various 

Tribal lands and Pueblos that completed 

approved southwestern willow 

flycatcher management plans from the 

final designation. These include the 

following: Yavapai-Apache, 

Chemehuevi, Colorado River, Quechan 

(Fort Yuma), Fort Mohave, Hualapai, 

and San Carlos Apache Tribes in AZ, 

Pueblo of Isleta in NM, and Rincon and 

La Jolla Tribes in CA. We also excluded, 

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

the San Illdefonso, San Juan, and Santa 

Clara Pueblos in Northern New Mexico 

along the Rio Grande due to 

partnerships associated with 

southwestern willow flycatcher habitat 

management. National Wildlife Refuges 

(NWR) excluded from the final 

designation under section 4(b)(2) of the 

Act due to wildlife conservation 

management include: Alamosa NWR, 

CO; Sevilleta and Bosque del Apache 

NWR, NM; Bill Williams, Havasu, 

Imperial, and Cibola NWR, AZ; and 

Pahranagat NWR, NV. Other lands 

excluded under section 4(b)(2) of the 

Act due to southwestern willow 

flycatcher/riparian habitat conservation 

plans/programs/easements and/or 

partnerships include: Los Angeles 

Department of Water and Power, Owens 

River, CA; San Luis Valley Partnership, 

Rio Grande and Conejos Rivers, CO; 

Hafenfeld Ranch, Kern River, CA; Salt 

River Project—Horseshoe Lake, Verde 

River, AZ; the City of Albuquerque/Rio 

Grande Valley State Park, Rio Grande, 

NM; and U-Bar Ranch, Gila River, NM. 

TABLE 1.—CRITICAL HABITAT UNITS FOR THE SOUTHWESTERN WILLOW FLYCATCHER

Critical habitat management units Final rule 

ha (ac) / km (mi) 

Santa Ynez Management Unit ................................................................................................................................ 1560 (3855) / 32 (20) 

Santa Ana Management Unit .................................................................................................................................. 1103 (2727) / 97 (60) 

San Diego Management Unit .................................................................................................................................. 1944 (4805) / 102 (64) 

Owens Management Unit ........................................................................................................................................ 0 

Kern Management Unit ............................................................................................................................................ 1241 (3067) / 15 (10) 

Mohave Management Unit ...................................................................................................................................... 1033 (2553) / 55 (34) 

Salton Management Unit ......................................................................................................................................... 84 (206) / 11 (7) 

Little Colorado Management Unit ............................................................................................................................ 216 (534) / 35 (22) 

Virgin Management Unit .......................................................................................................................................... 3903 (9643) / 119 / 74) 

Middle Colorado Management Unit ......................................................................................................................... 0 

Pahranagat Management Unit ................................................................................................................................. 0 

Bill Williams Management Unit ................................................................................................................................ 1883 (4654) / 30 (19) 

Hoover to Parker Management Unit ........................................................................................................................ 0 

Parker to Southerly International Border Management Unit ................................................................................... 0 

Verde Management Unit .......................................................................................................................................... 2191 (5414) / 96 (59) 

Roosevelt Management Unit ................................................................................................................................... 3064 (7572) / 60 (37) 

Middle Gila/San Pedro Management Unit ............................................................................................................... 9692 (23949) / 170 (106) 

Upper Gila Management Unit .................................................................................................................................. 6897 (17043) / 162 (101) 

San Luis Valley Management Unit .......................................................................................................................... 0 

Upper Rio Grande Management Unit ...................................................................................................................... 664 (1640) / 66 (41) 

Middle Rio Grande Management Unit ..................................................................................................................... 13410 (33137) / 135 (84) 

Critical Habitat 

Critical habitat is defined in section 

3(5)(A) of the Act as—(i) the specific 

areas within the geographical area 

occupied by a species, at the time it is 

listed in accordance with the Act, on 

which are found those physical or 

biological features (I) essential to the 

conservation of the species and (II) that 

may require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by a species at the time 

it is listed, upon a determination that 

such areas are essential for the 

conservation of the species. 

‘‘Conservation’’ means the use of all 

methods and procedures that are 

necessary to bring an endangered or a 

threatened species to the point at which 

listing under the Act is no longer 

necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

60906 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species at the time of 

listing must first have features that are 

‘‘essential to the conservation of the 

species.’’ Critical habitat designations 

identify, to the extent known using the 

best scientific and commercial data 

available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found the 

primary constituent elements, as 

defined at 50 CFR 424.12(b)). 

Specific areas within the geographic 

area occupied by the species at the time 

of listing may be included in critical 

habitat only if the essential features may 

require special management or 

protection. As discussed below, such 

areas may also be excluded from critical 

habitat pursuant to section 4(b)(2). 

When the best available scientific and 

commercial data do not demonstrate 

that the conservation needs of the 

species so require, we will not designate 

critical habitat in areas outside the 

geographical area occupied by the 

species at the time of listing. An area 

currently occupied by the species but 

that was not known to be occupied at 

the time of listing will likely be 

essential to the conservation of the 

species and, therefore, included in the 

critical habitat designation. 

Our Policy on Information Standards 

Under the Endangered Species Act, 

published in the Federal Register on 

July 1, 1994 (59 FR 34271), and our 

associated Information Quality 

Guidelines, provides criteria and 

guidance, and establishes procedures to 

ensure that our decisions represent the 

best scientific and commercial data 

available. Our biologists are required, to 

the extent consistent with the Act and 

with the use of the best scientific and 

commercial data available, to use 

primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are designated as critical habitat, a 

primary source of information is 

generally the listing package for the 

species. Additional information sources 

include a recovery plan for the species, 

articles in peer-reviewed journals, 

conservation plans developed by States 

and counties or other entities that 

develop HCPs, scientific status surveys 

and studies, biological assessments, or 

other unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Methods 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific and 

commercial data available in 

determining areas that are essential to 

the conservation of the southwestern 

willow flycatcher. Our methods for 

identifying the southwestern willow 

flycatcher critical habitat included in 

this final designation are those methods 

we used to propose critical habitat for 

the southwestern willow flycatcher, 

published on October 12, 2004 (69 FR 

60706). In addition, we used 

information and data received during 

both the October 12, 2004 to May 31, 

2005, and July 7 to 18, 2005 public 

comment periods, the economic 

analysis, environmental assessment 

National Environmental Policy Act 

(NEPA) document, and communications 

with individuals inside and outside the 

Service who are knowledgeable about 

the species and its habitat needs. 

We have also reviewed available 

information that pertains to the habitat 

requirements of this species. The 

material included data in reports 

submitted during section 7 

consultations and by biologists holding 

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

research published in peer-reviewed 

articles, agency reports, and databases; 

and regional Geographic Information 

System (GIS) coverages and habitat 

models. 

A variety of sources were used to 

determine territory site information and 

locations. The Recovery Plan (USFWS 

2002), the U.S. Geological Survey 

(USGS 2004) southwestern willow 

flycatcher rangewide database, and 2002 

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

2005) rangewide status report of the 

flycatcher were the most authoritative 

and complete sources of information. 

The database maintained by USGS, 

Colorado Plateau Research Station, 

Flagstaff, AZ compiles the results of 

surveys conducted throughout the bird’s 

range. We had compiled 2004 data from 

AZ (Munzer et al. 2005), but did not 

have compiled data from other states. A 

summary of known historical breeding 

records can be found in the Recovery 

Plan (USFWS 2002: 8 to10). 

Geographic Area Occupied by the 

Species 

The geographic area occupied by the 

southwestern willow flycatcher is 

widespread as a result of its behavior, 

breeding range, known migration and 

dispersal habits, and the dynamics of its 

habitat development. Unlike other 

animals whose habitat changes slowly 

or where movements are limited, the 

southwestern willow flycatcher is a neotropical migrant that travels annually 

between its breeding grounds in the 

United States of America (U.S.) and 

wintering grounds in Central and South 

America. The riparian habitat it uses for 

breeding, foraging, migrating, 

dispersing, and shelter can change (is 

dynamic) in its quality, growth, and 

location due to its proximity to water 

and susceptibility to flooding (USFWS 

2002; Koronkiewicz et al. 2004; 

Cardinal and Paxton 2005). As a result 

of the dynamic nature of its habitat, the 

southwestern willow flycatcher will 

typically move its breeding location 

from year-to-year (Luff et al. 2000; 

Kenwood and Paxton 2002; USFWS 

2002; Newell et al. 2003, 2005). The 

bird does not usually exhibit nest 

fidelity (using the same nest tree yearto-year), but commonly demonstrates 

site-fidelity (Luff et al. 2000; Kenwood 

and Paxton 2002; USFWS 2002; Newell 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60907 

et al. 2003, 2005). In other words, 

flycatchers do not typically return to use 

the same nest tree or habitat patch for 

breeding from year-to-year, but 

commonly returns to or near the general 

area (or site) where they previously bred 

or hatched (Luff et al. 2000; Kenwood 

and Paxton 2002; USFWS 2002:22; 

Newell et al. 2003, 2005). As result of 

these factors, the geographical area 

occupied by the flycatcher is much 

broader than the specific locations used 

while nesting. 

The southwestern willow flycatcher 

currently breeds across six southwestern 

states (southern CA, southern NV, 

southern UT, southern CO, AZ, and 

NM) from sea level to about 2438m 

(8000 feet) above sea level. While the 

bird occupies a broad area, its breeding 

locations are irregularly distributed 

within its range. Genetic studies 

conducted by Paxton (2000) helped 

confirm the subspecies and refine the 

northern boundary of the bird’s 

breeding range (particularly in UT and 

CO) in the U.S. The current breeding 

range of the southwestern willow 

flycatcher is reflected in the maps found 

in the Recovery Plan (USFWS 2002). 

The southwestern willow flycatcher, a 

neo-tropical migrant, travels between its 

breeding areas in the U.S. to wintering 

grounds in Central and South America. 

During these migrations, it occupies 

habitat (primarily riparian habitat along 

river corridors) across a wide geographic 

area during spring and fall migration. 

These essential migration stopover 

habitats are used for shelter, and to 

forage in order to sustain life, continue 

migration, and be in appropriate 

condition for breeding. These stopover 

areas are used briefly, can differ from 

year-to-year, are less habitat-specific 

than areas where nests are placed, but 

cover a greater geographic area than 

breeding locations. Birds have even 

been detected occupying non-riparian 

areas during migration (USFWS 

2002:19). Current work along extensive 

sections of river drainages has provided 

the best information on the bird’s 

migration habits (Yong and Finch 1997, 

2002; Koronkiewicz et al. 2004; McLeod 

et al. 2005). 

The most current and comprehensive 

drainage-wide look at the use of 

migration habitat by willow flycatchers 

has occurred along the Lower Colorado 

River and its major tributaries 

(Koronkiewicz et al. 2004; McLeod et al. 

2005). A total of 15 large study areas 

(comprised of over 90 smaller survey 

sites) exist along the length of the 

Colorado River from the Grand Canyon 

above Lake Mead to Yuma, AZ 

(including the lower Virgin and Bill 

Williams rivers) and also include 

separate locations in southern Nevada 

along other tributaries of the Colorado 

River (the Pahranagat River and 

Meadow Valley Wash) (Koronkiewicz et 

al. 2004; McLeod et al. 2005). In 2003, 

willow flycatchers were recorded at 13 

of 15 study areas and 54 of 94 survey 

sites, occupying each large study area 

along the length of the Colorado River 

from the Grand Canyon above Lake 

Mead downstream to Yuma, AZ 

(Koronkiewicz et al. 2004). Also, study 

areas on the Virgin, Bill Williams, and 

Pahranagat rivers were occupied by 

willow flycatchers (Koronkiewicz et al. 

2004). Similarly, in 2004, each of the 15 

study areas and 72 of 92 survey sites 

were occupied by willow flycatchers 

(McLeod et al. 2005). This 

comprehensive view of willow 

flycatcher migration shows occupancy 

of a variety of riparian habitats along the 

entire length of a major drainage (Lower 

Colorado River) and its significant 

tributaries (Virgin, Bill Williams, and 

Pahranagat rivers), occupancy of 

different sites from one season to the 

next, and occupancy of a major drainage 

and its significant tributaries where 

breeding locations are interspersed 

(Koronkiewicz et al. 2004; McLeod et al. 

2005). As a result of, (1) the study along 

the Lower Colorado River and its major 

tributaries (discussed above), (2) studies 

of willow flycatchers occurring along 

the Rio Grande (Yong and Finch 1997, 

2002), and (3) detections of willow 

flycatchers along the same major 

drainages where breeding occurs 

throughout AZ (Munzer et al. 2005), we 

expect similar flycatcher migration 

behavior for the other major drainages 

where southwestern willow flycatchers 

breed throughout its range and where 

these locations are included within this 

designation. 

While southwestern willow 

flycatchers place their nests in dense 

riparian habitat (USFWS 2002), 

occupancy of habitat in river corridors 

by pre-breeding, breeding, and postnesting southwestern willow flycatchers 

extends beyond the dense vegetation 

where a nest is placed (Cardinal and 

Paxton 2005). Results from radiotelemetry studies determined that 

southwestern willow flycatchers 

explored a variety of riparian habitats of 

varying quality (Cardinal and Paxton 

2005). Mixed (native and exotic) mature 

habitat was used 53 percent of the time 

(Cardinal and Paxton 2005). Smaller and 

younger immature vegetation comprised 

of willow and salt cedar was used 25 

percent of the time (Cardinal and Paxton 

2005). Also used were habitats classified 

as young (17 percent), open (4 percent), 

and mature exotic (1 percent) (Cardinal 

and Paxton 2005). Therefore, while 

vegetation required for nest placement 

is the most dense and specific of all 

habitats used by southwestern willow 

flycatchers, matrices of open spaces and 

shorter/sparser vegetation are also used. 

However, during the entire time 

southwestern willow flycatchers were 

tracked, none were found using upland 

habitat (i.e., habitat that extended 

outside of the floodplain to non-riparian 

habitat) (Cardinal and Paxton 2005). 

The distances traveled and areas 

occupied by telemetered breeding and 

dispersing young-of-the year fledgling 

southwestern willow flycatchers varied, 

but were larger than the nest area 

(Cardinal and Paxton 2005). Breeding 

southwestern willow flycatcher home 

ranges varied from 0.15 ha (0.4 ac) to 

360 ha (890 ac) (Cardinal and Paxton 

2005). Movements by male 

southwestern willow flycatchers prior to 

and after nesting were the farthest, 

while birds did not travel as far while 

nesting (Cardinal and Paxton 2005). One 

post-nesting male traveled through 

many territories, moving over 500 m 

(0.31 mi) in one day and collectively 

over several days, 2 km (1.2 mi). Other 

post-nesting southwestern willow 

flycatchers were also observed traveling 

long distances to exploit a spike in food 

availability that may indicate staging 

behavior for migration (Cardinal and 

Paxton 2005). As a result, Cardinal and 

Paxton (2005) concluded that previous 

home ranges estimated for nesting 

southwestern willow flycatchers 

underestimated the actual home range 

of an individual southwestern willow 

flycatcher throughout the entire nesting 

season. In addition, to demonstrate how 

mobile flycatchers can be, a dispersing 

young-of-the-year fledgling 

southwestern willow flycatcher was 

detected traveling over 24 km (15 mi) in 

a single day (Cardinal and Paxton 2005). 

Therefore, the use and occupancy of 

riparian habitat surrounding nesting 

areas by breeding and dispersing 

southwestern willow flycatchers is 

greater than previously believed, and is 

likely important for flycatchers to seek 

territories, to detect future nesting areas, 

search for mates, forage, and/or stage for 

migration (Cardinal and Paxton 2005). 

Therefore, the boundary of the current 

geographic area occupied by the 

southwestern willow flycatcher in the 

U.S. is supported by genetic studies 

(Paxton 2000) and is reflected in the 

range map included in the Recovery 

Plan (USFWS 2002) that describes its 

breeding range across southern CA, 

southern NV, southern UT, southern 

CO, AZ, and NM. Because this bird is 

a neotropical migrant traveling mainly 

along riparian areas where habitat 

60908 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

rapidly changes condition and location, 

its use of riparian habitat within this 

boundary along migration corridors is 

widespread (i.e., more extensive than 

specific breeding locations) and less 

predictable. However, all studies and 

surveys support that the flycatcher uses 

riparian habitat for migration stopover 

areas along the same major drainages 

where breeding sites are known to 

occur. Because of the bird’s site fidelity 

to general breeding areas and the 

dynamics of its habitat, its nesting and 

foraging areas will also change over 

time, but will occur primarily along the 

same major river drainages where it is 

currently found in locations that can 

support the necessary vegetation 

qualities. Based upon continued surveys 

and recent telemetry studies on the use 

of habitat during the nesting season, the 

extent and diversity of habitat used is 

more widespread than previously 

believed. Pre-breeding, breeding, 

dispersing, and non-territorial 

flycatchers can use a wide variety of 

riparian habitats that can encompass 

hundreds of hectares (acres). 

In the methodology section below, we 

further describe how we address the 

dynamic aspects of flycatcher habitat, 

the subspecies biology, and its life 

history needs (breeding, migration, 

dispersing, foraging, and shelter) and 

how we arrived at specific essential 

river segments for the designation of 

critical habitat occupied by breeding, 

non-breeding, migrating, foraging, 

dispersing, and territorial southwestern 

willow flycatchers. 

Primary Constituent Elements 

In accordance with section 4(b)(2) of 

the Act and regulations at 50 CFR 

424.12, in determining which areas to 

designate as critical habitat, we are 

required to base critical habitat 

determinations on the best scientific 

data available. Critical habitat is defined 

in section 3(5)(A)(i), in part, as areas 

occupied by the species at the time of 

listing and containing those physical 

and biological features (PCEs) that are 

essential to the conservation of the 

species, and that may require special 

management considerations or 

protection. These general requirements 

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 breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The specific PCEs required for the 

southwestern willow flycatcher are 

derived from the biological needs of the 

southwestern willow flycatcher. 

Supporting details are found below and 

can also be found in the Background 

section of the October 12, 2004, 

proposed rule (69 FR 60706) and the 

Recovery Plan (USFWS 2002). The 

specific biological and physical features, 

or PCEs, which are essential to the 

conservation of the southwestern 

willow flycatcher, are described below. 

Identified lands provide aquatic and 

terrestrial habitat containing the 

essential PCEs supporting the 

maintenance of self-sustaining 

populations and metapopulations (see 

description below) of southwestern 

willow flycatchers throughout its range. 

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 2438 meters (m) (8000 feet) 

(USFWS 2002: D–1) (Munzer et al. 

2005). 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. 

As a neotropical migrant (migrating 

between Central and South America and 

the United States), migration stopover 

areas for the southwestern willow 

flycatcher, even though not used for 

breeding, are 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. 

2004, McLeod et al. 2005, Munzer et al. 

2005). 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). 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). 

Southwestern willow flycatchers 

breeding populations 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 

southwestern willow flycatcher 

breeding 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). Metapopulation persistence 

or stability is more likely to increase by 

adding more breeding sites (see 

definition below) rather than adding 

more territories (see definition below) 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). 

Breeding site and territory are 

common terms used to describe areas 

where southwestern willow flycatchers 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60909 

breed or attempt to breed. A breeding 

site may encompass a discrete nesting 

location (i.e. territory) or several 

(USFWS 2002: 72). A territory is defined 

as a territorial or singing male detected 

during field surveys and generally 

equates to an area where both a male 

and female are present (Sogge et al. 

1997). For more specific information on 

southwestern willow flycatcher 

presence/absence survey protocol, 

please see Sogge et al. (1997) and any 

subsequent updates at http://fws.gov/ 

arizonaes or http://www.usgs.nau.edu/ 

swwf. Breeding site and patch (a 

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

southwestern willow flycatcher habitat) 

fidelity and habitat use by 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, Cardinal 

and Paxton 2005). 

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 

kilometers (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). 

The Recovery Plan for the 

southwestern willow flycatcher 

(USFWS 2002) 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). 

All the PCEs 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 nesting, feeding, 

and sheltering while breeding, 

migrating, and dispersing. Because 

riparian vegetation is prone to periodic 

disturbance, flycatcher habitat is 

ephemeral and its distribution is 

dynamic in nature (USFWS 2002: 17). In 

other words, riparian trees and shrubs 

used by flycatchers will be altered by 

flood waters, drought, or possibly 

succumb to fire, but will be replaced by 

new trees or shrubs which grow in their 

place (but not necessarily in the same 

location). Sapling riparian trees and 

shrubs must germinate and grow to 

reach the appropriate height and 

structure to be used by flycatchers. After 

reaching appropriate structure for 

nesting, 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). 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. 

Therefore, the riparian vegetation used 

by flycatchers is part of a gradually 

changing system, not only in its rapid 

growth due to its proximity to water, but 

its location within the floodplain due to 

the dynamic riverine environment. As a 

result of this dynamic riverine 

environment, it is not realistic to 

assume that any given breeding habitat 

patch will remain suitable over the longterm, or persist in the same location 

(USFWS 2002: 17), or always be used 

for the same purpose by flycatchers. 

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 

established nesting sites are lost or 

degraded (USFWS 2002: 42). 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. Therefore, the germination 

and growth of riparian vegetation (i.e. 

succession) in this dynamic 

environment is integral for developing 

and maintaining appropriate habitat for 

use by southwestern willow flycatchers. 

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 described 

below in the text supporting the PCEs, 

and in more detail in the Recovery Plan 

(USFWS 2002: Chapter II), it is 

important to recognize the combined 

nature of the relationships between river 

function, water, hydrology, floodplains, 

soils, aquifers, and plant growth to form 

and support the vegetation and insect 

populations (PCEs) important for the 

conservation of the southwestern 

willow flycatcher. 

The natural hydrologic regime (i.e., 

river flow frequency, magnitude, 

duration, and timing) 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 

60910 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

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 areas designated as critical 

habitat provide riparian habitat for 

breeding, non-breeding, territorial, 

dispersing, and migrating southwestern 

willow flycatchers and to sustain 

southwestern willow flycatchers across 

their range. No areas are being 

designated as critical habitat solely 

because they serve as a migration 

corridor; rather areas designated serve a 

variety of functions that 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 (USFWS 

2002: Chapter II and Appendix D). 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 and 

Appendix D), one or more of the 

primary constituent elements described 

below are found throughout each of the 

specific areas that are being designated 

as critical habitat. 

Space for Individual and Population 

Growth, and for 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 2438 

m (8000 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 at 

high elevations, 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 a 

hectare or acre 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. 

Many willow flycatchers are found 

along riparian corridors during 

migration (McCabe 1991; Yong and 

Finch 1997, 2002; USFWS 2002; E–3, 

Koronkiwiecz et al. 2004; McLeod et al. 

2005; Munzer et al. 2005). Migration 

stopover areas can be similar to 

breeding habitat (McCabe 1991) or 

riparian habitats of less density and 

abundance than areas for nest 

placement (i.e., the vegetation structure 

is too short or sparse or the patch is too 

small) (USFWS 2002: E–3). For 

example, many locations where migrant 

willow flycatchers were detected on the 

lower Colorado River (Koronkewiecz et 

al. 2004; McLeod et al. 2005) and 

throughout AZ in 2004 (Munzer et al. 

2005) were areas surveyed for nesting 

birds, but no breeding was detected. 

Such migration stopover areas, even 

though not used for breeding, are 

critically important resources affecting 

productivity and survival (USFWS 

2002: E–3). The variety of riparian 

habitats occupied by migrant flycatchers 

range from smaller patches with shorter/ 

sparser vegetation to larger, more 

complex breeding habitats. 

Water 

Flycatcher nesting habitat is largely 

associated with perennial (i.e., 

persistent) stream flow that can support 

the expanse of vegetation characteristics 

needed by breeding flycatchers. 

However, flycatcher nesting habitat can 

also persist on intermittent (i.e., 

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, 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, Roosevelt Lake, AZ, and Elephant 

Butte Reservoir, NM (USFWS 2002: D–

12). Similarly, where a river channel has 

changed naturally there may be a total 

absence of water or visibly saturated soil 

for several years (Sferra et al. 1997). 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, 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 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60911 

those waters it can be an area for both 

breeding, and non-breeding, territorial, 

dispersing, foraging, and migrating 

southwestern willow flycatchers, and 

elevated groundwater helps create moist 

soil conditions believed to be important 

for nesting conditions and prey 

populations (USFWS 2002: 11 and 18), 

as further discussed below. 

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). Fine 

sediments provide seed beds for 

flycatcher habitat. In almost all cases, 

moist or saturated soil is present at or 

near breeding sites during wet or nondrought years (USFWS 2002: 11). 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). Microclimate 

features (i.e., 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). 

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 are essential qualities 

of southwestern willow flycatcher 

breeding habitat, although they may 

vary widely at different sites (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, 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 to 4 m (10 to 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 Goodings willow (Salix 

gooddingii), coyote willow (Salix 

exigua), Geyers willow (Salix geyerana), 

arroyo willow (Salix lasiolepis), red 

willow (Salix laevigata), yewleaf willow 

(Salix taxifolia), pacific willow (Salix 

lasiandra), boxelder (Acer negundo), 

tamarisk (Tamarix ramosissima), and 

Russian olive (Eleagnus angustifolia) 

(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 (willow and cottonwood), by 

exotic (i.e., non-native) vegetation (salt 

cedar), and those with mixed native and 

exotic plants (salt cedar and willow). 

These broad habitat descriptors reflect 

the fact that southwestern willow 

flycatchers inhabit riparian habitats 

dominated by both native and nonnative plant species. Salt cedar and 

Russian olive are two exotic plant 

species used by flycatchers for nest 

placement and also foraging and shelter 

(USFWS 2002: D–4). 

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 breeding 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). 

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 nesting areas (Hatten and 

Paradzick 2003); therefore, areas 

adjacent to nest sites can be an 

important component of a breeding site. 

How size and shape of riparian patches 

relate to factors such as flycatcher nest 

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 

60912 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

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 

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) 

(Hymenoptera) to large (dragonflies) 

(Odonata) flying insects, with, 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, email). 

Southwestern 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). 

Pursuant to our regulations, we are 

required to identify the known physical 

and biological features or PCEs, 

essential to the conservation of the 

southwestern willow flycatcher, 

together with a description of any 

critical habitat that is designated. Based 

on our current knowledge of the life 

history, biology, and ecology of the 

species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined that the southwestern 

willow flycatcher’s primary constituent 

elements are: 

(1) Riparian habitat in a dynamic 

successional riverine environment (for 

nesting, foraging, migration, dispersal, 

and shelter) that comprises: 

(a) Trees and shrubs that include 

Gooddings willow (Salix gooddingii), 

coyote willow (Salix exigua), Geyers 

willow (Salix geyerana), arroyo willow 

(Salix lasiolepis), red willow (Salix 

laevigata), yewleaf willow (Salix 

taxifolia), pacific willow (Salix 

lasiandra), boxelder (Acer negundo), 

tamarisk (Tamarix ramosissima), 

Russian olive (Eleagnus angustifolia), 

buttonbush (Cephalanthus 

occidentalis), cottonwood (Populus 

fremontii), 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), false 

indigo (Amorpha californica), Pacific 

poison ivy (Toxicodendron 

diversilobum), grape (Vitus arizonica), 

Virginia creeper (Parthenocissus 

quinquefolia), Siberian elm (Ulmus 

pumila), and walnut (Juglans hindsii). 

(b) Dense riparian vegetation with 

thickets of trees and shrubs ranging in 

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

Lower-stature thickets (2 to 4 m or 6 to 

13 ft tall) are found at higher elevation 

riparian forests and tall-stature thickets 

are found at middle- and lowerelevation riparian forests; 

(c) 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; 

(d) 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); 

(e) 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 

(2) A variety of insect prey 

populations found within or adjacent to 

riparian floodplains or moist 

environments, including: flying ants, 

wasps, and bees (Hymenoptera); 

dragonflies (Odonata); flies (Diptera); 

true bugs (Hemiptera); beetles 

(Coleoptera); butterflies/moths and 

caterpillars (Lepidoptera); and 

spittlebugs (Homoptera). 

The discussion above outlines those 

physical and biological features 

essential to the conservation of the 

southwestern willow flycatcher and 

presents our rationale as to why those 

features were selected. The primary 

constituent elements described above 

are results of the dynamic river 

environment that germinates, develops, 

maintains, and regenerates the riparian 

forest and provides food for breeding, 

non-breeding, dispersing, territorial, and 

migrating southwestern willow 

flycatchers. Anthropogenic factors such 

as dams, irrigation ditches, or 

agricultural field return flow can assist 

in providing conditions that support 

flycatcher habitat. Because the 

flycatcher exists in disjunct breeding 

populations across a wide geographic 

and elevation range, and is subject to 

dynamic events, critical habitat river 

segments described below are essential 

for the flycatcher to maintain 

metapopulation stability, connectivity, 

gene flow, and protect against 

catastrophic loss. All river segments 

designated as southwestern willow 

flycatcher critical habitat are within the 

geographical area occupied by the 

species and contain at least one of the 

primary constituent elements. It is 

important to recognize that the PCEs are 

present throughout the river segments 

selected (PCE 1a and 2), but the specific 

quality of riparian habitat for nesting 

(PCE 1b, 1c, 1d, 1e), migration (PCE 1), 

foraging (PCE 1 and 2), and shelter (PCE 

1) will not remain constant in their 

condition or location over time due to 

succession (i.e., plant germination and 

growth) and the dynamic environment 

in which they exist. 

Criteria Used To Identify Critical 

Habitat 

We are designating critical habitat on 

lands that (1) we have determined are 

occupied at the time of listing and 

contain the primary constituent 

elements of the southwestern willow 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60913 

flycatcher, and (2) in some instances, 

designated areas not known to be within 

the geographical area occupied at the 

time of listing, but have been 

determined to be essential to the 

conservation of the species. See the 

Justification of Including Areas Not 

Known To Be Within the Specific 

Geographical Area Occupied by the 

Species at the Time of Listing section 

below for our rationale for including 

such areas. This critical habitat 

designation focuses on providing 

riparian habitat for breeding, nonbreeding, territorial, dispersing, and 

migrating southwestern willow 

flycatchers, thus promoting the 

conditions for maintaining selfsustaining southwestern willow 

flycatcher populations and 

metapopulations across their range in 

areas of AZ, CA, NM, NV, CO, and UT. 

Since southwestern willow flycatchers 

are found in a variety of ecologically 

and geographically disjunct areas that 

are prone to disturbance, it is important 

to preserve metapopulation stability, 

connectivity, gene flow, and protect 

against catastrophic loss for populations 

distributed across a large geographic 

and elevational range, as well as the 

variety of ecological environments in 

which it lives. 

To identify areas containing features 

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). This led to us to 

focus on the wide, but irregular 

distribution of this bird, the dynamic 

nature of its habitat, and scientific 

principles behind southwestern willow 

flycatcher metapopulation stability, 

gene flow, ecological connectivity 

among disjunct populations, and 

prevention of catastrophic losses 

(USFWS 2002: 61–95). In addition, 

information provided during the 

comment periods for this proposed rule 

and the draft economic and draft NEPA 

analyses were evaluated and considered 

in the development of the final 

designation for southwestern willow 

flycatcher. 

The Recovery Plan (USFWS 2002: 61–

95) identifies important factors to 

consider in minimizing the likelihood of 

extinction: (1) Populations should be 

distributed throughout the bird’s range; 

(2) populations should be distributed 

close enough to each other to allow for 

movement among them; (3) large 

populations contribute most to 

metapopulation stability; smaller 

populations can contribute to 

metapopulation stability when arrayed 

in a matrix with high connectivity; (4) 

as the population of a site increases, the 

potential to disperse and colonize 

increases; (5) increase/decrease in one 

population affects other populations; (6) 

some Recovery/Management Units have 

stable metapopulations, others do not; 

(7) maintaining/augmenting existing 

populations is a greater priority than 

establishing new populations; and (8) 

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 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 critical habitat 

designation focuses on those Recovery 

Plan recommendations that we believe 

are important in determining areas that 

have essential features for the 

conservation of the species. 

The focus of this designation is a 

conservation strategy which relies on 

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). This approach for defining 

critical habitat areas 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 with 

features 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; U.S. Geological Survey 2003; 

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

NMGFD, e-mail 2004). 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 and the expertise of the 

Technical Recovery Team indicates a 

breeding site exhibits greatest long-term 

stability with at least 10 territories 

(Lamberson et al. 2000; USFWS 2002: 

72). 

We are designating stream ‘‘segments’’

as critical habitat for the southwestern 

willow flycatcher. The reaches 

designated provide for flycatcher habitat 

(nesting, foraging, migrating, 

regenerating, etc.) and allows for the 

changes in habitat locations or 

conditions from those that exist 

presently. The actual riparian habitat in 

these areas is expected to expand, 

contract, or change as a result of 

flooding, drought, inundation, and 

changes in floodplains and river 

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

that result from current flow 

management practices and priorities. 

Stream segments include breeding sites 

in high connectivity and other essential 

flycatcher habitat components needed to 

conserve the subspecies. Those other 

essential components of flycatcher 

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

regenerating habitat, streams, elevated 

groundwater tables, moist soils, flying 

insects, and other alluvial floodplain 

habitats, etc.) adjacent to or between 

sites, along with the dynamic process of 

riparian vegetation succession and river 

hydrology, provide current and future 

habitat for the flycatcher which is 

dependent upon vegetation succession. 

As a result, these segments represent the 

boundaries within which flycatcher 

habitat of all types currently persist, and 

due to dynamic river processes, is 

expected to persist over time. We used 

expert opinion, location of territories, 

habitat models, existing dam and river 

operations, and the physical and 

60914 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

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 (same river drainage) 

and between-drainage (separate river 

drainages) movements of southwestern 

willow flycatchers (Luff et al. 2000; 

Kenwood and Paxton 2002; USFWS 

2002; Newell et al. 2003, 2005; E. 

Paxton, USGS, e-mail). Using banding 

studies from 1997 to 2003 which were 

focused in central AZ, scientists resighted 292 banded southwestern 

willow flycatchers that, between years, 

moved within the same river drainage 

and to different river drainages (Luff et 

al. 2000; Kenwood and Paxton 2001; E. 

Paxton, USGS, e-mail). Most recorded 

between-year movements (n = 267) 

occurred within the same river drainage 

from 1.6 to 29 km (1 and 18 mi), but 

movements ranging from 40 km (25 mi) 

to as far as 440 km (276 mi) were 

recorded for movements occurring 

between different river drainages (Luff 

et al. 2000; Kenwood and Paxton 2001; 

E. Paxton, USGS, e-mail). Flycatchers 

are not restricted to within river 

drainage movements, but longer 

distance movements were infrequent 

and would not be indicative of highly 

connected populations (USFWS 2002: 

22, E. Paxton, USGS, e-mail). Therefore, 

as a result of the known movements of 

banded southwestern willow 

flycatchers, the ability of birds to move 

between drainages, and the intent to 

capture collections of small separate 

breeding sites, we chose a 29 km (18 mi) 

radius as the distance to identify the 

high connectivity of collections of 

flycatcher breeding sites. 

As a result of defining the degree of 

connectivity to assign populations, we 

identified territories (with a minimum 

of 10 territories) and areas containing 

features essential to the subspecies’

conservation or areas defined as 

essential habitat within a 29 km (18 mi) 

radius of each other to include as 

proposed critical habitat. This approach 

captures habitat for the persistence of 

the largest and most stable breeding 

populations in the best habitat 

throughout the subspecies’ range. These 

populations within these areas provide 

metapopulation stability, gene flow, 

connectivity, and protects against 

catastrophic losses. The large breeding 

populations found within these 

segments provide dispersers that can 

colonize new breeding sites within and 

outside of designated critical habitat. 

These segments also capture habitat 

with features essential for non-breeding, 

dispersing, migrating, and territorial 

southwestern willow flycatchers. As a 

result of using this radius to identify 

areas containing features essential to the 

subspecies’ conservation or areas 

defined as essential habitat, it accounts 

for the dynamic aspects of riparian 

habitat and allows for a change in 

location, distribution, abundance, and 

quality of flycatcher habitat over time. 

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 (less than 29 

km/18 mi) with a large population 

(greater than 10 territories). We are not 

designating these areas as critical 

habitat because the areas do not meet 

the criteria that we established for 

containing essential features or essential 

habitat. 

We adjusted the methodology used to 

determine essential habitat in the 

Coastal CA Recovery Unit. Unlike the 

other Recovery Units in the flycatcher’s 

range, streams in the Coastal CA 

Recovery Unit are located in closer 

proximity to each other and territories 

exist on a greater number of streams. As 

a result, flycatcher breeding sites in this 

Recovery Unit are almost all located in 

close proximity to one another. Because 

of this, our methodology could not 

distinguish habitat with essential 

features for the flycatcher. This caused 

us to further scrutinize stream segments 

in these Management Units to determine 

which had essential features for the 

flycatcher and which ones did not. In 

order to do that, we had to rely on 

Recovery Plan recommendations, 

distribution and abundance of 

territories, conservation goals, habitat 

quality, and expert opinion to determine 

those segments with essential features 

for this critical habitat designation. 

Our approach in these Coastal CA 

Management Units was to still target 

large populations and smaller breeding 

sites that together equaled a large 

population. In the Santa Ynez, Santa 

Ana, and San Diego Management Units 

we selected segments from streams with 

large populations (Santa Ynez, Santa 

Ana, Santa Margarita and San Luis Rey 

Rivers). In addition to these stream 

segments with large populations, we 

selected other nearby stream segments 

with high quality habitat and smaller 

numbers of territories to provide for 

population connectivity, 

metapopulation stability, population 

growth, and protection against 

catastrophic loss. We however, omitted 

some locations with lone territories that 

were not believed to be essential. These 

omitted locations were, compared to 

other habitat segments, believed to be of 

lesser quality and did not contribute as 

much to connectivity, stability, or 

protect against catastrophic loss. 

Consequently, there are stream segments 

in the Coastal CA Recovery Unit, 

specifically in the Santa Ana and San 

Diego Management Units in CA, where 

lone territories exist that fell within the 

29 km (18 mi) radius, but are not being 

designated 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 

for inclusion in this critical habitat 

designation. 

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 (Dockens 

and Paradzick 2004) as a result of 

shifting river channels, flooding, 

drought, springs, seeps, and other 

factors such as agricultural run-off, 

diversions, dam operations, and 

modifications of riverbeds, etc. The 

methodology that we used to generate 

river segments and map the river 

channel and associated alluvial areas 

within the riparian zone is intended to 

identify locations where dynamic river 

functions exist that create and maintain 

southwestern willow flycatcher habitat 

for nesting, feeding, sheltering, cover, 

dispersal, and migration. 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60915 

In this designation, 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 

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 designation 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 (2) 

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, 1 meter, 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 

designation by creating electronic maps 

of the lateral extent and attributing them 

according to the following riparian subclassifications. Riparian developed 

areas, as defined below, are not 

included in our 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 which can still 

support southwestern willow flycatcher 

habitat and features essential to the 

subspecies’ conservation (i.e., riparian 

forest, vegetated and unvegetated 

wetlands, water bodies, any 

undeveloped or unmanaged lands 

within the approximate riparian zone). 

Some of these areas may encompass 

man-made features which support 

flycatcher habitat such as ditches or 

canals. 

(2) Riparian Developed: This class is 

used to describe all developed areas 

found within the boundary of critical 

habitat with existing physical 

infrastructure features that do not 

contain the PCEs to support 

southwestern willow flycatcher habitat. 

Developed lands include, urban/ 

suburban development, agricultural 

fields, utility structures, roads, mining/ 

extraction pits, cement pads, and 

landscaped residential areas which no 

longer contain the ability to develop the 

PCEs. 

Critical Habitat Designation 

Critical habitat for the southwestern 

willow flycatcher is being designated 

across a wide portion of the subspecies’

range and is organized in Management 

Units (as described in the Recovery 

Plan). We are designating stream 

segments in 15 Management Units 

found in 5 Recovery Units as critical 

habitat for the southwestern willow 

flycatcher and excluding or exempting 

from this designation various river or 

stream segments previously proposed as 

critical habitat within many of those 

units. For those areas that have been 

excluded or exempted, a brief 

description of the segment is included 

and why it is being excluded or 

exempted. More thorough discussions 

are provided in the Exclusions under 

Section 4(a)(3) and 4(b)(2)of the Act and 

Summary of Changes from the Proposed 

Rule portions of this rule. The stream 

segments designated occur in southern 

CA, southern NV, southwestern UT, AZ, 

and NM. Lands we are designating are 

under private, local agency, county, 

State, Tribal, and Federal ownership. 

In the development of southwestern 

willow flycatcher critical habitat, we 

determined which lands have features 

essential to the conservation of the 

species by defining the physical and 

biological features essential to the 

species’ conservation and delineating 

the specific areas containing them. We 

then evaluated those lands determined 

to have essential features to ascertain if 

any specific areas are appropriate for 

exemption or exclusion from critical 

habitat pursuant to either sections 

4(a)(3) or 4(b)(2) of the Act. On the basis 

of our evaluation, we have determined 

that the benefits of excluding certain 

approved HCPs, lands owned and 

managed by the Department of Defense, 

State and Federal Wildlife Areas, 

National Wildlife Refuges, and Tribal 

and private lands under appropriate 

management for the southwestern 

willow flycatcher outweighs the benefits 

of their inclusion. We have 

subsequently excluded those lands from 

southwestern willow flycatcher critical 

habitat pursuant to section 4(a)(3) and 

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

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

below). 

The resulting designation, after 

exclusions and exemptions, is a subset 

of lands that have features essential to 

the conservation of the southwestern 

willow flycatcher or lands determined 

to be essential to the conservation of the 

subspecies. Following exclusions and 

exemptions some proposed river 

segments are completely removed, some 

are effectively divided in half, and 

others had a variety of sections 

removed. In a few cases, after exclusion 

or exemption, such a small piece of the 

segment is left, that it was removed from 

critical habitat because in the context of 

the protected segment, it was no longer 

essential. In those instances, we provide 

an explanation below of those small 

sections. 

The value and purpose of each 

segment to flycatcher conservation are 

shared throughout the designation; 

segments provide riparian habitat for 

breeding, migrating, non-breeding, 

territorial, and dispersing southwestern 

willow flycatchers. This is especially 

true due to the dynamic nature of 

riparian habitat and the variety of 

purposes and conditions that are used 

by the flycatcher for life-history needs. 

A location in these segments that has a 

specific purpose today, such as a 

breeding site, foraging location, or areas 

used for migration or dispersal, can 

change over time (sometimes within a 

year or over a few years). Changes can 

occur due to flooding, drought, fire, or 

choices in land management. These 

changes can result in an increase or 

decrease in habitat suitability, growth, 

and location depending on which 

influence is exercised. Current breeding 

site locations, with few exceptions, are 

described in the Recovery Plan with a 

code describing (USFWS 2002: Figs. 3–

11, 67–71) its general location. In this 

designation’s proposal (69 FR 60706), 

we described each segment and the 

most recent known distribution of sites 

and territories. 

The critical habitat areas described 

below constitute our best assessment of 

the areas: (1) With essential habitat 

features within the geographical area 

occupied by the species at the time of 

listing; (2) that contain the PCEs; and (3) 

that may require special management. 

Although all of the segments are within 

60916 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

the geographical area occupied by the 

species, we are not designating all of the 

areas known to be occupied by the 

southwestern willow flycatcher. We 

provide separate discussions on (1) the 

reasons why these segments contain 

features essential for the conservation of 

the southwestern willow flycatcher; (2) 

special management considerations for 

these Units; and (3) if a unit was not 

known to be occupied at the time of 

listing, we have described why we have 

determined the segment to be essential 

to the conservation of the species. 

Special Management Considerations or 

Protection 

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

critical habitat as the specific areas 

within the geographic area occupied by 

the species on which are found those 

physical and biological features (I) 

essential to the conservation of the 

species and (II) which may require 

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. 

Secondly, we then evaluate lands 

defined by those features to assess 

whether they may require special 

management considerations or 

protection. As discussed throughout this 

rule, the southwestern willow flycatcher 

and its habitat are threatened by a 

multitude of factors occurring at once. 

Threats to those features that define 

essential habitat (PCEs) are caused by 

various factors. 

We believe the areas designated 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 PCEs essential to its 

conservation in order to ensure the 

overall conservation of the species. 

Areas in need of management include 

not only the immediate locations where 

the species may be present, but 

additional areas adjacent to these that 

can provide for normal population 

fluctuations and/or habitat succession 

that may occur in response to natural 

and unpredictable events. The 

southwestern willow flycatcher may be 

dependent upon habitat components 

beyond the immediate areas where 

individuals of the species occur if they 

are important in maintaining ecological 

processes such as hydrology; stream 

flow; hydrologic regimes; plant 

germination, growth, maintenance, 

regeneration (succession); 

sedimentation; groundwater elevations; 

plant health and vigor; or maintenance 

of prey populations. 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 of the Act if they may 

affect the flycatcher or its critical habitat 

(such as groundwater pumping, 

developments, watershed condition, 

etc.). Prohibitions of section 9 of the Act 

also continue to apply both inside and 

outside of designated critical habitat. 

A 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 FR39129, July 22, 1997), and the 

final Recovery Plan (August 2002). 

Special management that may be 

needed for the southwestern willow 

flycatcher is briefly summarized below: 

(1) Manage fire to maintain and 

enhance habitat quality and quantity. 

Suppress fires that occur. Restore 

groundwater, base flows, flooding, and 

natural hydrologic regimes to prevent 

flammable exotic species from 

developing and reducing fire risk. 

Reduce recreational fires. 

(2) Manage biotic elements and 

processes. Manage livestock grazing to 

increase flycatcher habitat quality and 

quantity by determining appropriate 

areas, seasons, and use constituent 

within the natural historical norm and 

tolerances. Reconfigure grazing units, 

improve fencing, and improve 

monitoring and documentation of 

grazing practices. Manage wild and feral 

ungulates to restore desired processes to 

increase flycatcher habitat quality and 

quantity. Manage keystone species such 

as beaver to restore desired processes to 

increase habitat quality and quantity. 

(3) Manage exotic plant species such 

as tamarisk or Russian olive by reducing 

conditions that allow exotics to be 

successful, and restoring or reestablishing conditions that allow native 

plants to thrive. To a large extent, 

abundance of exotic plants is a 

symptom of land management 

(groundwater withdrawal, surface water 

diversion, dam operation, over grazing) 

that has created conditions favorable to 

exotics over native plants. Eliminate or 

reduce dewatering stressors such as 

surface water diversion and 

groundwater pumping to increase 

stream flow and groundwater 

elevations. Reduce salinity levels by 

modifying agricultural practices and 

restoring natural hydrologic regimes and 

flushing flood flows. Restore natural 

hydrologic regimes that favor 

germination and growth of native plant 

species. Improve timing of water draw 

down in lake bottoms to coincide with 

the seed dispersal and germination of 

native species. Restore ungulate 

herbivory to intensities and levels under 

which native riparian species are more 

competitive. 

(4) Retain native riparian vegetation 

in the floodplain. Prevent clearing 

channels for flood flow conveyance or 

plowing of flood plains. Manage 

projects to minimize clearing of native 

vegetation will help ensure that the 

desired native species persist. 

(5) Exotic plant species removal and 

native plant restoration should be 

evaluated and conducted on a site-bysite basis. If habitat assessment reveals 

sustained increase in exotic abundance, 

conduct habitat evaluation of 

underlying causes and conduct 

restoration pursuant to measures 

described in the Plan. Remove exotics 

only if: Underlying causes for 

dominance have been addressed; there 

is evidence that exotic species will be 

replaced by vegetation of higher 

functional value; and the action is part 

of an overall restoration plan. 

Restoration plans should include at 

least; a staggered approach to create 

mosaics of different aged successional 

stands; and consideration of whether 

the sites are presently occupied by 

nesting flycatchers. Biocontrol agents 

should not be used within the occupied 

range of the southwestern willow 

flycatcher. 

(6) Protect riparian areas from 

recreational impact. Manage items such 

as trails, campsites, off-road vehicles, 

fires, etc. to prevent habitat degradation 

in order to maintain, protect, and 

develop flycatcher habitat. 

Justification of Including Areas Not 

Known To Be Within the Specific 

Geographical Area Occupied by the 

Species at the Time of Listing 

The areas included in this designation 

not known to be within the specific 

geographic area occupied by the species 

at the time of listing are portions of the 

bird’s range associated with the large 

populations in CA, NV, UT, and AZ. In 

the Santa Ana Management Unit, 

breeding southwestern willow 

flycatchers were not known from 

streams associated with the Santa Ana 

Drainage including the: Santa Ana 

River, Bear Creek, Mill Creek, Oak Glen 

Creek, and Waterman Creek. In the San 

Diego Management Unit, breeding 

southwestern willow flycatchers were 

not known from the Santa Margarita 

River, Temecula Creek, Agua Hedionda 

Creek, Santa Ysabel River, and Temescal 

Creek. In the Mohave Management Unit, 

breeding southwestern willow 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60917 

flycatchers were not known from the 

Deep Creek, Holcomb Creek, and 

Mohave River. In the Virgin 

Management Unit, breeding 

southwestern willow flycatchers were 

not known from the Virgin River in NV 

and UT. And finally, breeding 

southwestern willow flycatchers were 

not known from the East Fork of the 

Little Colorado River and the Little 

Colorado River in AZ. 

The river segments listed above are 

essential because they represent areas 

with large breeding populations or a 

collection of smaller breeding 

populations that together equals a large 

population. Together with other areas 

known to be occupied at the time of 

listing, these segments provide for a 

wide distribution of flycatcher 

populations and other essential habitat 

needs such as migration, dispersal, 

foraging, shelter, etc. As a result of 

targeting these large populations, these 

segments represent the highest quality 

flycatcher habitat, protection against 

simultaneous catastrophic loss, 

maintenance of gene flow, prevention of 

isolation and extirpation, and colonizers 

to new areas. 

The known geographical area 

historically occupied by the subspecies 

was once much larger (USFWS 2002). 

Historical records described nesting 

birds in CA, NV, UT, CO, AZ, NM, and 

TX. At the time of listing in February 

1995 (USFWS 1995), the distribution 

and abundance of nesting southwestern 

willow flycatcher populations, its 

habits, and areas occupied by nonbreeding, migrating, and dispersing 

southwestern willow flycatchers were 

not well known. At the time of listing 

in February 1995, 359 territories (from 

limited 1994 survey data) were known 

only from CA, AZ, and NM. Unitt (1987) 

estimated the entire population was 

‘‘well under a 1000 pairs, more likely 

500,’’ and 200 to 500 territories were 

estimated to exist in the proposal to list 

the flycatcher (USFWS 1993). 

Since listing, the known distribution 

and abundance of flycatcher territories 

has increased primarily due to increased 

survey effort (Durst et al. 2005). 

Population increases have also been 

detected at specific areas where habitat 

improved. As a result of re-establishing 

occupancy of nesting areas (especially 

in NV, UT, and CO) and from more 

extensive surveys and research, the 

extent of riparian corridors currently 

occupied by migrating, non-breeding, 

and dispersing southwestern willow 

flycatchers has also expanded. As of the 

end of the 2003 breeding season (Durst 

et al. 2005), 1137 territories were known 

in CA, NV, UT, CO, AZ, and NM. 

Territories have still not been detected 

in TX. However migrant southwestern 

willow flycatchers may still move 

through TX. 

At the time of listing, breeding areas 

in CA, NV, UT, and CO described by 

Unitt (1987) were adopted as the 

subspecies northern boundary. 

However, the collection of genetic 

material across this part of the bird’s 

range has since refined this boundary 

(Paxton 2000). The results of the DNA 

work reduced the extent of the northern 

boundary of the southwestern 

subspecies. Territories once believed to 

be occupied by southwestern willow 

flycatchers in UT and CO, now are more 

accurately known to be of a different 

subspecies of the willow flycatcher that 

is not currently listed. This genetic work 

also confirmed the southwestern willow 

flycatcher subspecies throughout the 

rest of its range. 

As discussed above, southwestern 

willow flycatchers are believed to exist 

and interact as groups of 

metapopulations (Lamberson et al. 

2000; Noon and Farnsworth 2000; 

USFWS 2002). A meta-population is a 

group of spatially disjunct local willow 

flycatcher populations connected to 

each other by immigration and 

emigration (USFWS 2002). The 

distribution of willow flycatchers varies 

geographically (currently over a six-state 

region) and is most stable where many 

connected sites and/or large populations 

exist (Lamberson et al. 2000; USFWS 

2002). 

Most southwestern willow flycatcher 

breeding sites contain small numbers of 

territories (Durst et al. 2005). Eighty-two 

percent of all breeding sites between 

1993 and 2003 contained five or fewer 

flycatcher territories (Durst et al. 2005). 

Some locations no longer contain 

flycatcher territories which can largely 

be attributed to a variety of reasons that 

can in some cases be inter-related such 

as: Site isolation; small numbers of 

territories; degraded habitat conditions; 

habitat loss due to inundation, fire or 

drought; and the overall small 

rangewide population size of this 

endangered subspecies. 

Our methodology focused on 

identifying those areas with large 

populations and those populations in 

high connectivity that together 

constitute a large population. In areas 

such as the Santa Ana and San Diego 

Management Units, where habitat was 

more fragmented and nearly all 

territories were in close proximity, we 

had to be more selective, because we 

did not believe all habitat was essential 

and thus should be designated as 

critical habitat. We therefore targeted 

the largest populations surrounding the 

Santa Margarita, Santa Ana, and San 

Luis Rey river drainages (including 

adjacent tributaries). A by product of 

targeting river segments with the largest 

populations is that they also have the 

highest quality flycatcher habitat, the 

greatest chance of long-term persistence, 

and the greatest source of dispersers. 

Also as a result of the flycatcher’s site 

fidelity, migration, and dispersal 

behaviors, these habitats are reasonably 

certain to be used for migrating and 

dispersing, and offer the greatest 

opportunity for growth in the breeding 

population. 

There are also many areas occupied at 

the time of listing that we are not 

considering for inclusion in the critical 

habitat proposal. We did not propose 

critical habitat along Bluewater Creek, 

Rio Chama, San Francisco River, the 

lower Rio Grande, and the Little 

Colorado River drainage in NM, the 

upper Santa Ynez River and Santa Clara 

River in CA, and the Colorado River in 

Grand Canyon and San Francisco River 

in AZ. Our methodology for identifying 

critical habitat segments only included 

large populations or small populations 

that in high connectivity were large, and 

these areas did not meet our criteria. 

Because flycatcher habitat is dynamic, 

distribution of populations throughout 

the bird’s range is important to retain 

meta-population stability, gene flow, 

prevention of simultaneous catastrophic 

loss, and therefore prevention of local 

extirpation. For example, in central AZ 

in early 2005, flooding caused the 

temporary loss or alteration of habitat 

for approximately 200 pairs of 

flycatchers (about 42 percent of the 

state’s population) and about 15 percent 

of the entire subspecies due to 

inundation and other flood related 

damages. While river flows caused some 

significant change to nesting areas along 

the Verde, Salt, Tonto, and Big Sandy 

river drainages, river flow was not as 

severe on the San Pedro, Gila, Lower 

Colorado, and Bill Williams river 

drainages. Habitat on these drainages 

that were not as severely changed will 

be important for existing and displaced 

flycatchers. In turn, the critical habitat 

designation will be important in those 

areas which were disturbed in order for 

them to recover. This scenario is 

expected to occur across the subspecies 

range in any given year and over time. 

Conservation of the flycatcher is 

largely focused on increasing the 

number of populations and decreasing 

the distance between them (USFWS 

2002). Meta-population 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). 

Because riparian habitat is dynamic and 

60918 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

is widely, but sparsely distributed, 

flycatcher meta-population stability, 

population connectivity, gene flow, and 

avoidance of simultaneous catastrophic 

loss can be achieved by: Birds being 

distributed throughout its range, birds 

being close enough to each other to 

allow for interaction; having large 

populations and a matrix of smaller 

sites with high connectivity; and 

establishing habitat close to existing 

breeding sites, thereby increasing the 

chance of colonization (USFWS 2002). 

As the population at a site increases, the 

potential to disperse and colonize new 

areas increases (Lamberson et al. 2000). 

The segments not known to be occupied 

at the time of listing are essential 

individually to the stability and 

persistence of a local breeding 

population, metapopulation, and 

connectivity of the entire subspecies, 

plus habitat for migrating, dispersing, 

and nonbreeding southwestern willow 

flycatchers. 

Critical Habitat Unit Descriptions 

Below are tables, lists, and 

descriptions of the critical habitat 

segments. In order to help further 

understand the location of these stream 

segments please see the associated maps 

found within this rule and examine 

additional maps at http://www.fws.gov/ 

arizonaes/. These additional maps will 

show areas that have been excluded 

from this final designation. To 

determine with specificity, the lateral 

extent boundaries of critical habitat, 

please see the electronic data layers 

found at http://criticalhabitat.fws.gov. 

The following tables describe: (1) Lands 

being excluded and exempted from this 

critical habitat designation pursuant to 

section 4(b)(2) and 4(a)(3) of the Act 

(Table 2); (2) approximate area 

designated by land ownership per State 

(Table 3). 

TABLE 2.—APPROXIMATE AREA HA (AC)/KM (MI) EXCLUDED AND EXEMPTED FROM SOUTHWESTERN WILLOW FLYCATCHER

CRITICAL HABITAT PURSUANT TO SECTION 4(B)(2) AND 4(A)(3)OF THE ACT

AZ CA CO, NM, NV, UT 

Exempted and Excluded Area Totals ........................................................................ 36871 (91111) / 

303 (188) 

18884 (46563) / 

361 (224) 

38875 (96063) / 

267 (166) 

TABLE 3.—SOUTHWESTERN WILLOW FLYCATCHER CRITICAL HABITAT BY LAND OWNERSHIP PER STATE IN HA (AC)/KM (MI) 

Federal State Private Other Totals 

AZ .......................................................... 5296 (13087) / — 1136 (2806) / — 15856 (39182) / 

—

89 (221) — 22377 (55296) / 

519 (323) 

CA .......................................................... 846 (2092) / — 333 (823) / — / — — / — 5658 (17212) / — 6966 (17212) / 

313 (195) 

CO .......................................................... — / — — / — — / — — / — — / —

NM ......................................................... 2596 (6416) / — 86 (214) / — 14052 (34724) / 

—

16735 (41353) / 

—

16735 (41353) / 

510 (317) 

NV .......................................................... 1118 (2763) / — — / — 495 (1223) — / — / — 1613 (3986) /30 / 

(19) 

UT .......................................................... 195 (483) / — 10 (26) / — 999 (2468) — — / — 1205 (2977) / 37 

(23) 

Totals .............................................. 10052 (24840) /— 1566 (3869) / — 31403 (77598) / 

—

5875 (14518) / — 48896 (120824) / 

1186 (737) 

The 5 Recovery and 15 Management 

Units, and designated stream segments 

are: 

Coastal California Recovery Unit 

(1) Santa Ynez Management Unit—

Santa Ynez River 

(2) Santa Ana Management Unit—Santa 

Ana River, Bear Creek, Mill Creek, 

Oak Glen Creek, and Waterman 

Canyon. 

(3) San Diego Management Unit—Santa 

Margarita River, San Luis Rey River, 

Pilgrim Creek, Agua Hedionda 

Creek, San Ysabel River, Temescal 

Creek, and Temecula Creek. 

Basin and Mohave Recovery Unit in 

California 

(4) Kern Management Unit—South Fork 

Kern River 

(5) Mohave Management Unit—Deep 

Creek, Holcomb Creek, and Mohave 

River 

(6) Salton Management Unit—San 

Felipe Creek 

Lower Colorado Recovery Unit—

Nevada, California/Arizona Border, 

Arizona, Utah 

(7) Little Colorado Management Unit—

Little Colorado River, and West and 

East Forks of the Little Colorado 

River, AZ 

(8) Virgin Management Unit—Virgin 

River, NV/AZ/UT 

(9) Bill Williams Management Unit—Big 

Sandy River, AZ 

Gila Recovery Unit in Arizona and New 

Mexico 

(10) Verde Management Unit—Verde 

River, AZ 

(11) Roosevelt Management Unit—Salt 

River and Tonto Creek, AZ 

(12) Middle Gila/San Pedro 

Management Unit—Gila and San 

Pedro River, AZ 

(13) Upper Gila Management Unit—Gila 

River in AZ/NM 

Rio Grande Recovery Unit in New 

Mexico 

(14) Upper Rio Grande Management 

Unit—Coyote Creek, Rio Grande, 

and Upper Rio Grande del Rancho, 

NM 

(15) Middle Rio Grande Management 

Unit—Rio Grande, NM 

Coastal California Recovery Unit 

The Coastal CA Recovery Unit 

stretches along the coast of southern CA 

from just north of Point Conception 

south to the Mexico border. In 2003, 

there were an estimated 165 

southwestern willow flycatcher 

territories in this Recovery Unit (15 

percent of the rangewide total) (Durst et 

al. 2005). A total of 149 territories were 

estimated in the three Management 

Units included in this designation 

(Santa Ynez: n = 8 territories, Santa 

Ana: n = 41 territories, San Diego: n = 

100 territories). No critical habitat is 

being designated in the Santa Clara 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60919 

Management Unit. In 2001, territories 

were distributed along 15 watersheds, 

mostly in the southern third of the 

Recovery Unit (USFWS 2002: 64). The 

largest number of territories are within 

the San Luis Rey (n = 67), Santa 

Margarita (n = 19), and Santa Ana (n = 

40) watersheds (Durst et al. 2005). In 

2001, all territories occurred in native or 

native-dominated habitats; over 60 

percent were on government-managed 

lands (Federal, State, and/or local) 

(USFWS 2002: 64). This Recovery Unit 

contains designated segments within the 

Santa Ynez, Santa Ana, and San Diego 

Management Units. The stream 

segments designated as critical habitat 

are described below in their appropriate 

Management Units. 

Santa Ynez Management Unit 

We are designating a 32 km (20 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 designated 

segment holds a single breeding site. A 

high of 28 territories were detected at 

this breeding site in 2000. In 2003, four 

territories were known at this site. 

Southwestern willow flycatchers have 

been detected nesting on the Santa Ynez 

River since 1994. 

Santa Ana Management Unit 

The Santa Ana River is the single 

largest river system in southern CA with 

flycatchers distributed throughout the 

stream from its headwaters/tributaries 

in the San Bernardino Mountains in San 

Bernardino County, CA, downstream to 

Riverside County. We are designating 

two segments (an upper 40.8 km/25.3 

mi segment and a 13.6 km/ 8.5 mi lower 

segment) of the Santa Ana River in San 

Bernardino County (after removing a 

non-essential approximate 18 km/11 mi 

segment immediately below Seven Oaks 

Dam through the Santa Ana wash—see 

justification below) and other segments 

with high connectivity near its 

headwaters. In San Bernardino County 

we are designating 14.2 km (8.8 mi) of 

Bear Creek, 19.2 km (11.9 mi) of Mill 

Creek, 4.1 km (2.6 mi) of Waterman 

Creek, and 4.5 km (2.8 mi) of Oak Glen 

Creek. 

The combination of these streams 

provides riparian habitat for breeding, 

migrating, dispersing, non-breeding and 

territorial southwestern willow 

flycatchers, metapopulation stability, 

gene flow, connectivity, population 

growth, and prevention against 

catastrophic loss. There are seven 

breeding sites known along the Santa 

Ana River, one breeding site on Bear 

Creek, three breeding sites on Mill 

Creek, one breeding site on Waterman 

Creek, one breeding site on Oak Glen 

Creek, one breeding site on San Timoteo 

Wash, and no breeding sites on Wilson 

or Yucaipa creeks (USGS 2004). Durst et 

al. (2005) estimated 40 territories were 

on the Santa Ana River drainage in 

2003. 

Portions of the Santa Ana Watershed 

in Riverside County identified as having 

features essential for the southwestern 

willow flycatcher (the lower Santa Ana 

River, Yucaipa Creek, Temecula Creek, 

and Vail Lake on Temecula Creek) that 

lie within the boundaries of the Western 

Riverside MSHCP are being excluded 

from this critical habitat designation 

(see Relationship of Critical Habitat to 

Approved Habitat Conservation Plans—

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

Act). 

We have re-evaluated an approximate 

18 km (11 mi) portion of the Santa Ana 

River immediately below Seven Oaks 

Dam, and portions of San Timoteo 

Wash, Yucaipa Creek, Wilson Creek, 

Oak Glen Creek, and Mill Creek. The 

portion of the Santa Ana Wash has little 

riparian habitat, is dry, and is not 

expected to develop riparian vegetation 

that can support nesting southwestern 

willow flycatchers due to the lack of 

surface water flow and the long-term 

establishment of Riversidean alluvial 

fan sage scrub vegetation in this area. 

Therefore, we have removed this 

approximate 18 km (11 mi) wash 

segment of the Santa Ana River to more 

accurately define the essential boundary 

of the critical habitat designation. To 

further more accurately define the 

essential boundaries of critical habitat, 

we reviewed and also removed 

segments of San Timoteo Wash, Yucaipa 

Creek, and Wilson Creek, and the lower 

portion of Mill Creek. Through further 

analysis of habitat, we have determined 

that these segments do not have areas 

with the appropriate topography, 

vegetation, or water that we would 

expect to support nesting southwestern 

willow flycatcher habitat, and therefore, 

we have removed them from this 

designation. 

San Diego Management Unit 

The longest two streams in the San 

Diego Management Unit, the San Luis 

Rey and Santa Margarita Rivers, contain 

the largest numbers of flycatcher 

territories within this Management Unit. 

In addition to these two streams, we are 

designating a collection of smaller 

streams within the Unit. Collectively, 

these segments contain essential 

features for breeding, non breeding, 

territorial, migrating, and dispersing 

southwestern willow flycatchers and 

help provide metapopulation stability, 

population growth, gene flow, 

connectivity, and protection against 

catastrophic losses. In 2003, Durst et al. 

(2005) estimated a total of 100 territories 

for the entire San Diego Management 

Unit, with 86 territories on these two 

river drainages. 

We are designating an 9 km (5.6 mi) 

segment of the Santa Margarita River 

and a 1.6 km (1 mi) segment of De Luz 

Creek in San Diego County, CA, 

upstream of Camp Pendleton. 

Territories have been detected on the 

Santa Margarita River at Camp 

Pendleton since 1994. A high of 22 

territories in 2002 and 19 in 2003 were 

detected at the two known breeding 

sites on the Santa Margarita River on 

Camp Pendleton. The segment upstream 

from Camp Pendleton maintains a 

diversity of riparian vegetation used by 

dispersing and migrating southwestern 

willow flycatchers and the ability to 

develop breeding habitat for population 

growth or discovery of undetected 

territories. 

We are designating six segments of 

the San Luis Rey River and the lowest 

5 km (3.1 mi) portion of Pilgrim Creek 

in San Diego County, CA. Five separate 

segments of the San Luis Rey River are 

located upstream (7.5 km/4.7 mi), 

adjacent to (0.75 km/0.5 mi, 1 km/0.6 

mi), between (1.7 km/1 mi), and 

immediately (3 km/1.9 mi) below the La 

Jolla and Rincon and Indian Tribes. The 

lowest 51.3 km/32 mi segment of the 

San Luis Rey River is a contiguous 

segment extending to the ocean. A total 

of eight breeding sites (seven on San 

Luis Rey River and one on Pilgrim 

Creek) are spread along the length of 

these streams. Breeding sites have been 

detected since 1994. Durst et al. (2005) 

reported 67 territories from the San Luis 

Rey River drainage with a single site on 

the upper San Luis Rey River holding 44 

territories. A single breeding site exists 

on Pilgrim Creek where one to two 

territories were detected in 1994, 1995, 

and 1999. 

We are designating a short 3.2 km (2 

mi) portion of Agua Hedionada Creek in 

San Diego County, CA. A single territory 

was detected from 1998 to 2000. No 

territories were detected from 2001 to 

2003. 

We are designating joining segments 

of Temescal Creek (7 km/4.4 mi) and 

Santa Ysabel River (6 km/3.7 mi) in San 

Diego County, CA. Both segments are 

found upstream of known breeding sites 

that are being excluded due to their 

inclusion in the San Diego County 

MSCP. As a result, these two segments 

currently provide habitat for dispersing 

60920 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

and migrating flycatchers and locations 

for population growth and/or discovery 

of undetected territories. 

We are designating a 5.1 km (3.2 mi) 

segment of Temecula Creek in San 

Diego County, CA. Two breeding sites 

are known from Temecula Creek, with 

one occurring on the designated 

segment. Territories were first detected 

in 1997, and Durst et al. (2005) reported 

a single territory for 2003. 

Habitat with features essential for the 

southwestern willow flycatcher 

identified within the boundaries of the 

San Diego MSCP on the San Dieguito 

River (including Lake Hodges), San 

Diego River, and a portion of Santa 

Ysabel River is being excluded from this 

critical habitat designation (see 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans—

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

Act section below). 

Habitat with features essential for the 

southwestern willow flycatcher 

identified within the boundaries of 

Marine Corps Base, Camp Pendleton on 

Cristianitos, San Mateo, San Onofre, Los 

Flores/Las Pulgas, Pilgrim, and DeLuz 

Creeks, and the Santa Margarita River 

are being excluded from this critical 

habitat designation (see Relationship of 

Critical Habitat to Military Lands—

Application of Section 4(a)(3) and 

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

Act section below). 

Habitat with features essential for the 

southwestern willow flycatcher on 

portions of the Santa Margarita River 

located within the boundaries of the 

Seal Beach Naval Weapons Station, 

Fallbrook Detachment, is being 

excluded from this critical habitat 

designation (see Relationship of Critical 

Habitat to Military Lands—Application 

of Section 4(a)(3) and Exclusions Under 

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

Habitat with features essential for the 

southwestern willow flycatcher 

identified within the boundaries of the 

City of Carlsbad’s HMP at Agua 

Hedionda Lagoon and Agua Hedionda 

Creek is being excluded from this 

critical habitat designation (see 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans—

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

Act section below). 

Habitat with features essential for the 

southwestern willow flycatcher was 

identified within the boundaries of 

Rincon and La Jolla Tribal Lands along 

the San Luis Rey River. These Tribes 

developed, completed, and are 

implementing actions described in their 

Southwestern Willow Flycatcher 

Management Plans. As result, we are 

excluding these tribal lands from the 

critical habitat designation (see 

Relationship of Critical Habitat to 

American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the 

Endangered Species Act section below). 

We have re-evaluated our 

determination of the essential nature of 

the habitat features at Cuyamaca Lake. 

We determined that the small amount of 

habitat and disjunct nature from any 

other locations in the Santa Ana or 

Salton Management Units provided 

minimal habitat for metapopulation 

stability or prevention against 

catastrophic loss. As a result, this 

segment is no longer considered 

essential habitat and we have removed 

it from this designation. 

We have re-evaluated our 

determination of the essential nature of 

the habitat features associated with a 

short segment of Cristiantos Creek 

upstream of Camp Pendleton. Further 

evaluation concluded that there was 

little riparian habitat due to the lack of 

flowing water. As a result, we no longer 

consider this segment as essential 

habitat and we have removed it from 

this designation. 

We have re-evaluated our 

determination of the essential nature of 

the most upstream portions of the Santa 

Ysabel River, Temescal Creek, Temecula 

Creek, and San Diego River. The 

Cleveland National Forest provided 

comments describing specific portions 

that they believe do not provide the 

appropriate habitat for southwestern 

willow flycatchers because the 

vegetation is not dense, water is 

intermittent, understory (i.e. vegetation 

below the tree canopy) is absent, and 

could not improve for flycatchers as a 

result of Forest Service management. 

The Forest provided pictures and more 

accurate boundaries for these habitat 

segments. We agree with their 

assessment and have shortened these 

four segments to more accurately reflect 

in our designation the essential habitat 

on these river segments. 

Basin and Mohave Recovery Unit 

This unit is comprised of a broad 

geographic area including the arid 

interior lands of southern CA and a 

small portion of extreme southwestern 

NV. For 2003, Durst et al. (2005) 

estimated 61 flycatcher territories at 16 

sites (5 percent of the rangewide total) 

were distributed among widely 

separated drainages. Almost all sites 

had less than five territories; the 

exception was the largest breeding sites 

on the Kern and Owens River drainages 

(USFWS 2002:64). In 2002, all territories 

were in native or native-dominated 

riparian habitats, and approximately 70 

percent were on privately owned lands 

(USFWS 2002:64). The Recovery Unit 

contains the Owens, Kern, Mohave, 

Salton, and Amargosa Management 

Units. Stream segments designated in 

this proposal are found in the Kern, 

Mohave, and Salton Management Units. 

Owens Management Unit 

Habitat with features essential for the 

southwestern willow flycatcher 

identified along the Owens River are 

being managed by the Los Angeles 

Department of Water and Power 

(LADWP) and are being conserved 

through implementation of their 

Southwestern Willow Flycatcher 

Conservation Strategy. LADWP entered 

into a Memorandum of Understanding 

with the Service to implement these 

conservation actions. As a result, the 

entire 82.6 km (51.3 mi) Owens River, 

with 5 known breeding sites holding 28 

territories as of 2003 (Durst et al. 2005) 

in Inyo and Mono Counties, CA, is being 

excluded from this critical habitat 

designation (see Relationship of Critical 

Habitat to Partnerships and 

Conservation Plans/Easements on 

Private Lands—Exclusions Under 

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

Kern Management Unit 

We are designating a 15.5 km (9.6 mi) 

segment of the South Fork of the Kern 

River in Kern County, CA. 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 2003, 20 territories were 

reported from a single site (Durst et al. 

2005). 

Habitat with features essential for the 

southwestern willow flycatcher 

identified on the Haffenfeld Ranch 

along the South Fork of the Kern River 

is being excluded due to a conservation 

easement established with the National 

Resource Conservation Service (NRCS) 

specific to protecting habitat needs of 

the southwestern willow flycatcher. As 

a result of the protections provided 

through this easement, this property is 

being excluded from this critical habitat 

designation (see Relationship of Critical 

Habitat to Partnerships and 

Conservation Plans/Easements on 

Private Lands—Exclusions Under 

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

Two pieces of Federal land (Sprague 

Ranch and South Fork Kern Wildlife 

Area) with habitat features essential for 

the southwestern willow flycatcher 

within the Kern Management Unit are 

being excluded due to protections 

assured by their long-term commitments 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60921 

to management programs specific to the 

riparian habitat and needs of the 

flycatcher. The Sprague Ranch was 

recently purchased specifically for the 

conservation needs of the southwestern 

willow flycatcher and is co-managed by 

the U.S. Army Corps of Engineers 

(Corps), the California Department of 

Fish and Game (CDFG), and the 

National Audubon Society (Audubon). 

The South Fork Kern River Wildlife 

Area, located at the upper end of Lake 

Isabella and Kern River immediately 

above the lake is co-managed by the 

Corps and the U.S. Forest Service to 

protect riparian habitat values. Both of 

these properties are managed in 

accordance with a long-term biological 

opinion and are being excluded from 

this critical habitat designation (see 

Relationship of Critical Habitat to 

Federal Conservation Programs—

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

Act section below). 

Mohave Management Unit 

We are designating a 16.1 km (10 mi) 

portion of the Mojave River, a 18.8 km 

(11.7 mi) section of Holcomb Creek, and 

a 20.3 km (12.6 mi) section of Deep 

Creek (including the uppermost portion 

of Mohave River Forks Reservoir) in San 

Bernardino County, CA, near the Town 

of Victorville. Since 1995, southwestern 

willow flycatchers have been detected 

nesting at three sites along this reach of 

the Mojave River, one site on Holcomb 

Creek, and zero sites on Deep Creek. 

Deep Creek connects Holcomb Creek 

with the Mohave Forks Reservoir and 

provides riparian habitat for dispersal 

and migration, and areas for population 

growth. In 2002, a high of 13 territories 

were detected at all 5 sites within these 

segments; however in 2003, 10 

territories were recorded (Durst et al. 

2005). 

Salton Management Unit 

We are designating an 11 km (6.8 mi) 

portion of San Felipe 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 

were detected on this stream segment. 

In 2003, two territories were estimated 

from this site (Durst et al. 2005). This 

stream and the territories on it have 

high connectivity with other smaller 

populations in the adjacent San Diego 

Management Unit in the Coastal CA 

Recovery Unit raising the collective 

population above 10 territories. 

Lower Colorado Recovery Unit 

This is a geographically large and 

ecologically diverse Recovery Unit, 

encompassing the Colorado River and 

its major tributaries from the high 

elevation streams in the White 

Mountains of East/Central Arizona to 

the main stem Colorado River through 

the Grand Canyon and continuing 

downstream through the arid lands 

along the lower Colorado River to the 

Mexico border (USFWS 2002:64). In 

2003, despite its size, the Unit was 

estimated to have only 150 known 

flycatcher territories (13 percent of the 

rangewide total) (Durst et al. 2005), most 

of which occur away from the mainstem Colorado River (Sogge et al. 2003). 

The largest populations are found on the 

Bill Williams, Virgin, and Pahranagat 

River drainages (USFWS 2002:64). In 

2002, approximately 69 percent of 

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

Tribal lands (USFWS 2002:64). Habitat 

characteristics range from purely native 

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

tamarisk) dominated stands (USFWS 

2002:64). This Recovery Unit contains 

the Little Colorado, Middle Colorado, 

Virgin, Pahranagat, Bill Williams, 

Hoover to Parker, and Parker to 

Southerly International Border 

Management Units. Stream segments are 

being designated within the Little 

Colorado, Virgin, and Bill Williams 

Management Units. 

Little Colorado Management Unit 

We are designating a portion of the 

Little Colorado River and portions of the 

East and West Forks of the Little 

Colorado River in Apache County, AZ. 

The 11.2 km (7 mi) segment of the East 

Fork of the Little Colorado River 

extends from Forest Service Road 113 

downstream to its confluence with the 

West Fork of the Little Colorado River 

and Little Colorado River. The 8 km (5 

mi) section of the West Fork of the Little 

Colorado goes from just upstream of 

Forest Service Road 113 downstream to 

its confluence with the East Fork Little 

Colorado River and Little Colorado 

River. The Little Colorado River 

segment extends for 15.8 km (9.8 mi) 

downstream from the confluence of the 

East and West Forks to the diversion 

ditch near the Town of Greer. 

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. Due to its close 

proximity, the East Fork of the Little 

Colorado River is currently expected to 

be used for dispersing and migrating 

southwestern willow flycatchers and 

have the features to develop breeding 

habitat for southwestern willow 

flycatchers for population growth and 

stability. 

We re-evaluated the 7 km (4 mi) 

segment of the South Fork of the Little 

Colorado River extending from Joe Baca 

Draw downstream to its confluence with 

the Little Colorado River and removed 

it from this designation. We visited the 

South Fork of the Little Colorado River 

on September 22, 2004, with Forest 

Service personnel and determined that 

the floodplain is not wide enough to 

support habitat currently known to be 

used by breeding southwestern willow 

flycatchers. While it is expected to be 

used by migrating southwestern willow 

flycatchers, our approach was to target 

stream segments that would serve a 

combination of purposes, including 

breeding habitat. Therefore, because it 

did not have nesting habitat, nor did we 

believe the topography allowed it to be 

able to develop nesting habitat, we no 

longer believe it is essential habitat and 

we have removed it from the 

designation. 

Middle Colorado Management Unit 

The upper most portion of the 

conservation space of Lake Mead, 

including the Colorado River to river 

mile 243, was identified as having 

features essential to the flycatcher in 

Mohave County, AZ. 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 

(USGS 2004). In 2003, no territories 

were detected on this stream segment, 

and in 2004, two territories were found 

(Munzer et al. 2005). The conservation 

space of Lake Mead and the Colorado 

River immediately upstream is covered 

under the Lower Colorado River MultiSpecies Conservation Plan (LCR MSCP) 

up to full pool elevation of Lake Mead. 

The full pool elevation is defined by 

water surface elevation 1,229 feet 

National Geodetic Vertical Datum which 

extends up to near river mile 235 at 

Separation Canyon. As a result of upper 

portion of Lake Mead and Colorado 

River through river mile 235 being 

covered under the LCR MSCP, this 

entire segment is being excluded from 

this critical habitat designation (see 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans—

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

Act section below). 

60922 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

The Colorado River above Lake Mead 

on the Hualapai Nation was identified 

as having features essential to the 

southwestern willow flycatcher. The 

Nation developed, completed, and is 

implementing actions described in their 

Southwestern Willow Flycatcher 

Management Plan. As a result, and in 

conjunction with coverage under the 

LCR MSCP, the southern bank of the 

Colorado River on Hualapai Lands is 

being excluded from this designation 

(see Relationship of Critical Habitat to 

American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the 

Endangered Species Act section below). 

Virgin Management Unit 

We are designating a contiguous 

segment of the Virgin River in UT, AZ, 

and NV. The segment extends for 118.7 

km (73.8 mi) from the Washington Field 

Diversion Impoundment in Washington 

County, UT, downstream through the 

Town of Littlefield, AZ, and ends in NV 

at the upstream boundary of the Overton 

State Wildlife Area in Clark County, NV. 

This segment exists for 36.7 km (22.8 

mi) in UT, approximately 52 km (32.3 

mi) through AZ, and 30 km (18.6 mi) in 

NV. The Virgin River is the only stream 

within this Management Unit and 

within UT known to have nesting 

southwestern willow flycatchers. 

Southwestern willow flycatchers have 

been detected nesting in 1995 at three 

sites in the NV segment, a single site in 

the AZ segment since 2001, and two 

sites in the UT segment 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 2003, 37 territories 

were detected at 4 of the 6 sites (Durst 

et al. 2005). 

The Overton State Wildlife Area 

encompasses a segment of the Virgin 

River where it enters into Lake Mead. 

This segment of the Virgin River was 

identified as having features essential to 

the southwestern willow flycatcher. As 

a result of the State of Nevada’s 

management of this property for wildlife 

and riparian habitat for the flycatcher, 

this segment is being excluded from this 

designation (see Relationship of Critical 

Habitat to State and Federal Wildlife 

Conservation Areas—Exclusions Under 

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

A 1.2 km (2 mi) (approximately 158 

ha/390 ac of riparian habitat) segment of 

the Virgin River exists between two 

excluded areas of the Overton State 

Wildlife Area. About 61ha (150 ac) of 

this area was purchased by the Bureau 

of Reclamation for conservation of 

wildlife and riparian habitat, with the 

possibility of turning management over 

to the State of Nevada. As a result of this 

remaining 1.2 km (2 mi) segment being 

surrounded by conservation lands, 

being detached from a considerably 

larger designated segment, being a very 

small piece of an overall larger segment 

that is being excluded from critical 

habitat, and because a significant 

portion was purchased for the 

conservation of wildlife, it is our 

determination that this segment is no 

longer essential habitat and we have 

removed it from the final designation. 

Pahranagat Management Unit 

The Pahranagat River, within the 

Pahranagat National Wildlife Refuge 

and Key Pittman State Wildlife Area in 

Lincoln County, NV, and the Muddy 

River within the boundaries of the 

Overton State Wildlife Area in Clark 

County, NV, were identified as having 

features essential to the southwestern 

willow flycatcher. Durst et al. (2005) 

reported 21 territories from these three 

locations in 2003. As a result of the 

Service’s management of this National 

Wildlife Refuge and the State of 

Nevada’s management of the Key 

Pittman and Overton Wildlife Areas for 

wildlife and riparian habitat for the 

flycatcher, all of the three segments 

proposed in this Management Unit are 

being excluded from this designation 

(see Relationship of Critical Habitat to 

National Wildlife Refuge Lands—

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

Act and Relationship of Critical Habitat 

to State and Federal Wildlife 

Conservation Areas—Exclusions Under 

Section 4(b)(2) of the Act sections 

below). 

Bill Williams Management Unit 

We are designating a 30.4 km (18.9 

mi) segment of the Big Sandy River from 

the Town of Wikieup to Groom Peak 

Wash, in Mohave County, AZ. This 

segment contains a known breeding site 

(15 territories in 2003 and 28 in 2004), 

habitat for dispersing, migrating, and 

non-breeding southwestern willow 

flycatchers, as well as areas for 

population growth. 

We re-evaluated the upper most 

portion of the Big Sandy River segment, 

examined habitat models (Dockens and 

Paradzick 2004), consulted local 

experts, and determined that due to the 

intermittent surface flow of this stream, 

there is a limited amount of riparian 

habitat that is able to support nesting 

habitat for southwestern willow 

flycatchers. Thus, we shortened this 

segment to more accurately reflect the 

essential nature of this segment for the 

flycatcher by removing the northernmost (12.9 km/20.8 mi) portion from the 

designation. 

The Alamo Lake State Wildlife Area, 

which includes the Big Sandy, Santa 

Maria, and Bill Williams River 

confluence area (included within upper 

Alamo Lake), in Mohave and La Paz 

Counties, AZ, was identified as having 

features essential to the southwestern 

willow flycatcher. A total of 31 

territories were detected in 2004. As a 

result of the State of AZ’s management 

of this Area for wildlife and riparian 

habitat for the flycatcher, all of the river 

segments within this Wildlife Area are 

being excluded from this designation 

(see Relationship of Critical Habitat to 

State and Federal Wildlife Conservation 

Areas—Exclusions Under Section 

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

The Bill Williams River within the 

Bill Williams National Wildlife Refuge 

was identified as having features 

essential to the southwestern willow 

flycatcher. A total of two territories were 

detected on the refuge in 2004. As a 

result of the Service’s management of 

the refuge for wildlife and riparian 

habitat for the flycatcher, the Bill 

Williams River within the refuge 

boundary is being excluded from this 

designation (see Relationship of Critical 

Habitat to National Wildlife Refuge 

Lands—Exclusions Under Section 

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

We re-evaluated the remaining 

approximately 1.6 km (1 mi) section of 

habitat along the Bill Williams River 

above the Bill Williams NWR (primarily 

occurring on Planet Ranch). This 

location is dominated by farm fields 

associated with the Ranch, and 

subsequently has little habitat for the 

southwestern willow flycatcher (U.S. 

Bureau of Reclamation 2005). There is 

potential for habitat improvement for 

the southwestern willow flycatcher but 

it would take a significant change in 

land operations, money, time, and 

effort, and may be more likely to 

develop habitat for yellow-billed 

cuckoos (U.S. Bureau of Reclamation 

2005). We encourage continued 

management of the resources of this 

Ranch with respect to downstream 

riparian values, and toward developing 

future habitat for the southwestern 

willow flycatcher. But due to the 

present condition and the changes 

required to convert existing locations to 

flycatcher habitat, we have concluded it 

is not essential habitat, and have 

therefore removed it from the 

designation. 

Hoover to Parker Management Unit 

A 107 km (66.5 mi) segment of the 

Colorado River from Davis Dam to 

Parker Dam (including the Havasu 

National Wildlife Refuge, Fort Mohave 

Tribe, and Chemehuevi Tribe) in 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60923 

Mohave and La Paz County, AZ, and 

San Bernardino County, CA, was 

identified as having features essential to 

the southwestern willow flycatcher and 

proposed as critical habitat. Six 

breeding sites are known from this 

segment, with the largest at Topock 

Marsh having 34 territories in 2004. As 

a result of the completion of the Lower 

Colorado River MSCP, Service 

management of Havasu National 

Wildlife Refuge for riparian habitat, and 

implementation of completed 

Southwestern Willow Flycatcher 

Management Plans by the Chemehuevi 

and Fort Mohave Tribes, this entire river 

segment is being excluded from this 

designation (see Relationship of Critical 

Habitat to American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act, Relationship of Critical 

Habitat to National Wildlife Refuge 

Lands—Exclusions Under Section 

4(b)(2) of the Act, and Relationship of 

Critical Habitat to Approved Habitat 

Conservation Plans—Exclusions Under 

Section 4(b)(2) of the Act sections 

below). 

Parker to Southerly International Border 

Management Unit 

A 24.1 km (15 mi) Colorado River 

segment in La Paz and San Bernardino 

Counties, CA, and another 74.4 km (46.2 

mi) Colorado River segment in La Paz 

and Yuma, Counties, AZ, and Imperial 

CA (including Cibola and Imperial 

National Wildlife Refuges, Colorado 

River and Fort Yuma (Quechan) Tribes) 

were identified as having features 

essential to the southwestern willow 

flycatcher and proposed as critical 

habitat. A high of 13 territories at 10 

sites were detected on this segment in 

1996, and 2 were detected in 2003. As 

a result of the Lower Colorado River 

MSCP, Service management of Cibola 

and Imperial National Wildlife Refuges, 

and implementation of completed 

Southwestern Willow Flycatcher 

Management Plans by the Colorado 

River and Fort Yuma (Quechan) Tribes 

these two river segments are being 

excluded from this designation (see 

Relationship of Critical Habitat to 

American Indian Tribal Rights, FederalTribal Trust Responsibilities and the 

Endangered Species Act, Relationship of 

Critical Habitat to National Wildlife 

Refuge Lands—Exclusions Under 

Section 4(b)(2) of the Act, and 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans—

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

Act sections below). 

Gila Recovery Unit 

This unit includes the Gila River 

watershed, from its headwaters in 

southwestern NM downstream to near 

the confluence with the Colorado River 

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

known flycatcher territories (51 percent 

of the rangewide total) were distributed 

primarily on the Gila and lower San 

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

of 505 territories were detected in 2003 

within the segments proposed in this 

Management Unit. Many sites are small 

(less than five territories), but sections 

of the upper Gila River, 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 were on government-managed 

lands (USFWS 2002: 65). While 58 

percent of territories were in nativedominated habitats, flycatchers in this 

Recovery Unit also make extensive use 

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

(primarily tamarisk). 

Verde Management Unit 

We are designating two separate 

segments of the upper Verde River in 

Yavapai County, AZ. The first segment 

occurs in the Verde Valley and extends 

for 23.1 km (14.4 mi) from near the 

Town of Cottonwood (2 miles north of 

Highway 89A/260 intersection) 

downstream to the upstream end of 

Yavapai-Apache Tribal lands. The 

second segment extends for 29.2 km 

(18.1 mi) from the downstream 

boundary of Yavapai-Apache lands 

through the town of Camp Verde to 

Beasley Flat on the Prescott National 

Forest. A small (less than 1 km/0.6 mi) 

non-Tribal section of critical habitat 

separates two segments of excluded 

Yavapai—Apache Tribal lands. 

Two segments occur in the middle 

Verde River in Yavapai and Maricopa 

Counties, AZ. A 37 km (23 mi) segment 

begins at the East Verde/Verde River 

confluence in Yavapai County on the 

Tonto National Forest and extends 

downstream to the conservation space 

boundary of Horseshoe Lake. The 

second segment begins immediately 

below Horseshoe Dam and extends for 

6.5 km (4.1 mi) to the USGS gauging 

station in Maricopa County. 

Since 1993, southwestern willow 

flycatchers have been confirmed at three 

breeding sites on the upper Verde River 

(Tuzigoot to Beasley Flat), with 

additional sightings in 2005 of about 

seven unsolicited singing flycatchers 

near the West Clear Creek confluence 

downstream to Beasley Flat (E. Paxton, 

USGS, e-mail). In 1997, 10 territories 

were the highest recorded on the upper 

Verde River segment. In 2003, 13 

territories were detected at 2 sites 

within the Middle Verde River section 

(Smith et al. 2004, and in 2004, 17 

territories were detected at Horseshoe 

Lake (Munzer et al. 2005). 

The Verde River within the 

conservation space of Horseshoe 

Reservoir was identified as having 

features essential to the southwestern 

willow flycatcher. As a result of the 

partnership developed with Salt River 

Project, and their continued effort 

toward managing Horseshoe Lake to 

maintain flycatcher habitat for the longterm, and formalizing management and 

appropriate mitigation in a HCP, we are 

excluding the lake from this designation 

(see Relationship of Critical Habitat to 

Partnerships and Conservation Plans/ 

Easements on Private Lands—

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

Act section below). 

Three separate areas in the Verde 

River within the boundary of YavapaiApache Tribal lands were identified as 

having features essential to the 

southwestern willow flycatcher. The 

Tribe developed, completed, and is 

implementing actions described in their 

Southwestern Willow Flycatcher 

Management Plan. As a result, the 

segments identified on Yavapai-Apache 

Tribal Lands are being excluded from 

this designation (see Relationship of 

Critical Habitat to American Indian 

Tribal Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act section below). 

We re-evaluated the lowest 8 km (5 

mi) segment of the Verde River located 

on the Tonto National Forest in 

Maricopa County, AZ, from Needle 

Rock to near the Fort McDowell Indian 

Tribal Boundary. While habitat here 

may be used in the future for breeding 

and migrating flycatchers, the results of 

recent surveys (Smith et al. 2004 and 

Munzer et al. 2005) did not detect 

flycatchers. We therefore concluded that 

due to the disconnected nature of this 

segment to upstream occupied areas, the 

short distance of the segment, and the 

lack of detections during surveys that it 

is not essential and we have removed 

from the designation. We encourage 

management of the Verde River below 

Bartlett Dam for flycatchers due to 

appropriate features to develop and 

maintain habitat. 

60924 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

Roosevelt Management Unit 

We are designating a contiguous 

segment of lower Tonto Creek and the 

Salt River immediately upstream from 

the conservation space of Roosevelt 

Lake in Gila and Pinal Counties, AZ. A 

31.7 km (19.7 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 28.3 km (17.6 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. 

Outside of the conservation space of 

Roosevelt Lake, 10 territories were 

detected along Tonto Creek in 2004 

(Munzer et al. 2005), and approximately 

30 in 2005 (R. Ockenfels, AGFD, e-mail). 

We re-evaluated the 34 km (21 mi) 

Pinto Creek segment and removed it 

from the designation because it does not 

have the essential habitat features 

identified for the flycatcher. The 

Arizona Game and Fish Department, 

U.S. Bureau of Reclamation, Tonto 

National Forest, and the Service 

identified Pinto Creek as habitat that 

could provide nesting locations for 

displaced flycatchers following 

inundation of habitat at Roosevelt Lake 

as a result of its proximity and habitat 

quality. Surveys in 2004 (Munzer et al. 

2005), and particularly in 2005 (A. 

Smith, AGFD, e-mail) after flycatcher 

habitat was inundated at Roosevelt 

Lake, found no migrant or breeding 

flycatchers. While habitat may be used 

in the future for breeding and migrating 

flycatchers, the results of these surveys 

determined that it is not reasonably 

certain to be used by displaced 

Roosevelt flycatchers for nesting or 

migration, and therefore, we conclude 

that this segment is not essential habitat 

and we have removed it from the 

designation. We encourage continued 

management and monitoring of this 

segment for use by flycatchers. 

The riparian habitat within the 

conservation space of Roosevelt Lake 

has features essential for the 

conservation of the southwestern 

willow flycatcher. In 2004, a total of 209 

territories were found at Roosevelt Lake. 

The Roosevelt HCP covers the 

conservation space and as a result of 

protections provided from this HCP and 

management by the Tonto National 

Forest, this area is being excluded from 

this critical habitat designation (see 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans—

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

Act section below). 

Middle Gila/San Pedro Management 

Unit 

We are designating 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 97.4 km (60.5 mi) to the Gila 

River. The Gila River segment begins at 

Dripping Springs Wash and extends for 

72.4 km (45 mi) downstream past the 

San Pedro/Gila confluence and the 

Towns of Winkleman and Kelvin to the 

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 proposed for 

critical habitat within this Management 

Unit. In 2004, a total of 157 territories 

were detected from these sites (Munzer 

et al. 2004). Dripping Springs Wash had 

one to two territories detected in 2005 

(R. Ockenfels, AGFD, e-mail). 

Degradation of habitat quality due to an 

apparent reduction in river flow has 

dropped the number of territories on the 

Gila River segment from 68 in 1999, 26 

in 2003, to 14 in 2004. This location, 

along with populations at Roosevelt 

Lake, AZ, and in the Cliff-Gila Valley, 

NM, have the most southwestern willow 

flycatcher territories throughout its 

range. 

Upper Gila Management Unit 

We are designating four distinct 

southwestern willow flycatcher critical 

habitat segments along the Upper Gila 

River from the Turkey Creek/Gila River 

confluence on the Gila National Forest, 

NM, downstream to San Carlos Apache 

Tribal Land, AZ. There are three full 

segments we are designating as 

southwestern willow flycatcher critical 

habitat on the upper Gila River in 

southwestern NM (Grant and Hildalgo 

Counties) and immediately across the 

AZ State line into Greenlee County. We 

are also designating four small parcels 

of land that are interspersed within an 

excluded portion of the U-Bar Ranch in 

the Cliff/Gila Valley, NM. A fourth full 

segment occurs in AZ through the 

Safford Valley in Gila, Graham, and 

Pinal Counties. 

The first full segment extends for 15.5 

km (9.7 mi) from the Turkey Creek/Gila 

River confluence on the Gila National 

Forest, NM, downstream to the 

upstream boundary of the U-Bar Ranch 

in the Cliff/Gila Valley, NM. We are 

excluding the U-Bar Ranch from this 

point downstream for approximately 6 

km (3.7 mi) to near the Highway 180 

Bridge. Along this approximate 6 km 

(3.7 mi) stretch of river are four small 

distinct parcels of land not owned by 

the U-Bar Ranch which are being 

designated as critical habitat. The 

second full segment extends from the 

downstream boundary of the U-Bar 

Ranch exclusion near where Highway 

180 crosses the Gila River for 21.1 km 

(13.1 mi) through the Cliff/Gila Valley to 

the upstream entrance of the middle 

Gila Box on the Gila National Forest, 

NM (the middle Gila Box is being 

removed, see below). The third full 

segment begins at the gauging station 

above the Town of Red Rock in Grant 

County, NM, at the downstream end of 

the middle Gila Box and extends for 

54.7 km (34 mi) into Hidalgo County, 

NM, and across the NM/AZ State line 

through the town of Duncan in Greenlee 

County, AZ. 

A fourth full segment on the Gila 

River in AZ in Gila, Graham, and Pinal 

Counties extends for 69.2 km (43 mi) 

from the upper end of Earven Flat in 

AZ, above the Town of Safford, through 

the Safford Valley to the San Carlos 

Apache Tribal Boundary. 

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 Upper 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 that we proposed as critical 

habitat within this Management Unit. 

The U-Bar Ranch had 123 of these 

territories in 2003, many nesting in the 

canopy of mature boxelder trees along 

maintained irrigated ditches. 

The U-Bar Ranch, located in the Cliff/ 

Gila Valley in Grant County, NM, was 

identified as having features essential to 

the conservation of the southwestern 

willow flycatcher. Since the mid-1990s, 

the U-Bar Ranch has been the focus of 

studies and research by the Forest 

Service’s Rocky Mountain Research and 

Experiment Station in Albuquerque, 

NM. The number of territories detected 

has fluctuated between approximately 

110 and 210 territories. The U-Bar exists 

at approximately 1372 m (4500 feet) 

above sea level. Dense stands of 

boxelder trees are found along irrigation 

canals. As a result, nearly 75 percent of 

the flycatcher territories are found 

nesting in the canopies of these 

boxelders, approximately 60 feet above 

the ground. No where else throughout 

this subspecies range are southwestern 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60925 

willow flycatchers found nesting at this 

elevation, in this type of environment, 

in these types of trees, at this density. 

The combination of anthropogenic 

influence, elevation, and boxelder 

canopy structure has helped create a 

unique situation that is beneficial for 

nesting flycatchers. The result of these 

southwestern willow flycatcher studies 

has fostered the maintenance and 

management of one of the three largest 

known breeding populations. As a result 

of the stewardship demonstrated by the 

U-Bar Ranch and the commitment to 

future management of this population 

and its habitat, we are excluding the UBar Ranch from southwestern willow 

flycatcher critical habitat (see 

Relationship of Critical Habitat to 

Partnerships and Conservation Plans/ 

Easements on Private Lands—

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

Act section below). 

We re-evaluated an 11.3 km (7 mi) 

segment of the Gila River downstream of 

the Gila Bird Area in NM, located 

primarily on the Gila National Forest in 

Grant County, known as the middle Gila 

Box. While flycatchers could use this 

location for migration and/or dispersal 

habitat, this section of river is bordered 

by canyon walls without the floodplain 

characteristics to develop the vegetation 

for nesting habitat. Therefore, we 

conclude that it is not essential habitat 

and we have removed it from the 

designation. 

The Gila River immediately above San 

Carlos Lake and within the conservation 

space of the lake on San Carlos Apache 

Tribal Land was identified as having 

features essential to the southwestern 

willow flycatcher. The Tribe developed, 

completed, and is implementing actions 

described in their Southwestern Willow 

Flycatcher Management Plan. As a 

result, the segments identified as critical 

habitat on San Carlos Tribal Lands are 

being excluded from this designation 

(see Relationship of Critical Habitat to 

American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the 

Endangered Species Act section below). 

Rio Grande Recovery Unit 

This Recovery 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 in the Recovery 

Unit 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 2003 (Durst et al. 2005), the Rio 

Grande Recovery Unit had grown to 229 

territories (20 percent of the rangewide 

total). This is a large increase from the 

128 territories detected in 2001 (USFWS 

2002). Breeding sites along the Rio 

Grande in the San Luis Valley, CO, and 

at the upper end of Elephant Butte 

Reservoir, NM, accounted for the 

majority of this increase. 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. Only river segments 

in the Middle and Upper Rio Grande are 

being designated as critical habitat. 

San Luis Valley Management Unit 

The upper Rio Grande in Costilla, 

Conejos, Alamosa, and Rio Grande 

Counties, CO, and a segment of the 

Conejos River in Conejos, County, CO, 

were identified as having features 

essential to the southwestern willow 

flycatcher. In 2003, Durst et al. (2005) 

estimated a total of 73 flycatcher 

territories known from this Management 

Unit. The five counties surrounding 

these streams in south-central Colorado 

along with the Rio Grande Water 

Conservation District has a developed 

partnership with the Service and other 

Federal agencies for conservation of 

riparian areas on private lands in 

combination with Federal partners 

including and extending beyond the 

river segments identified in our 

proposed designation. Additionally, the 

Service is implementing management 

on the Alamosa National Wildlife 

Refuge specific to protecting riparian 

habitat values for the southwestern 

willow flycatcher. As a result, the Rio 

Grande and Conejos River segments 

identified as proposed critical habitat in 

the San Luis Valley Management Unit 

are being excluded from this 

designation (see Relationship of Critical 

Habitat to National Wildlife Refuge 

Lands—Exclusions Under Section 

4(b)(2) of the Act, and Relationship of 

Critical Habitat to Partnerships and 

Conservation Plans/Easements on 

Private Lands—Exclusions Under 

Section 4(b)(2) of the Act sections 

below). 

Upper Rio Grande Management Unit 

We are designating single segments of 

the upper Rio Grande in Taos and Rio 

Arriba 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 

45.9 km (28.5 mi) from the Taos 

Junction Bridge (State Route 520) 

downstream to the upstream boundary 

of the San Juan Pueblo. The 10.4 km (6.5 

mi) of the Rio Grande del Rancho 

extends from Sarco Canyon downstream 

to the Arroyo Miranda confluence. The 

9.3 km (5.8 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 upper Rio Grande 

River segments since 1993. Eleven 

breeding sites are known to exist on 

these segments (seven on the Rio 

Grande, one on the 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. 

The Pueblos of San Juan, Santa Clara, 

and San Illdefonso were identified as 

having features essential to the 

southwestern willow flycatcher along 

the Rio Grande. These three Pueblos 

have established a history of habitat 

management conducive to fostering the 

development and maintenance of 

riparian vegetation for the southwestern 

willow flycatcher, including restoration 

of native vegetation in order to reduce 

catastrophic fire to the riparian area. All 

three Pueblos have developed 

partnerships with the Service toward 

management of flycatcher habitat, and 

through those partnerships will be 

finalizing riparian habitat management 

plans that specifically address the 

habitat needs of breeding, migrating, 

and dispersing flycatchers. As a result, 

the Rio Grande on the Pueblos of San 

Juan, Santa Clara, and San Illdefonso is 

being excluded from this designation 

(see Relationship of Critical Habitat to 

American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the 

Endangered Species Act section below). 

Four extremely small sections of 

riparian vegetation exist between and 

adjacent to the San Juan, Santa Clara, 

and San Illdefonso Pueblos that we have 

determined are not essential and are 

removing from this designation. A small 

piece of non-Pueblo habitat less than 1 

km (0.6 mi) long exists between the San 

Juan and Santa Clara Pueblos. 

Additionally, a piece of non-Pueblo 

habitat, less than 0.5 km/0.3 mi long 

exists to west, adjacent to the Santa 

Clara Pueblo. Another two small pieces 

(each less than 0.5 km/0.3 mi long) exist 

between the San Illdefonso and Santa 

Clara Pueblos. As a result of these 

segments being located adjacent to 

60926 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

appropriate management by the Pueblos 

for the southwestern willow flycatcher, 

and because of their disjunct location 

and small size, we have determined that 

these four pieces are not essential 

habitat and are being removed from this 

designation. 

Middle Rio Grande Management Unit 

We are proposing three separate 

segments of the middle Rio Grande in 

Valencia and Soccoro Counties, NM. 

These segments are separated by the 

Sevilleta and Bosque del Apache NWRs 

that are being excluded from this 

designation as explained below. The 

most northern Rio Grande segment 

extends from the southern boundary of 

the Isleta Pueblo for 71.1 km (44.2 mi) 

to the northern boundary of the 

Sevilleta NWR. The middle Rio Grande 

segment extends for 44 km (27.3 mi) 

from the southern boundary of the 

Sevilleta NWR to the northern boundary 

of the Bosque del Apache NWR. The 

most southern Rio Grande segment 

extends for 20.1 km (12.5 mi) from the 

southern boundary of the Bosque del 

Apache NWR to the overhead powerline 

near Milligan Gulch at the northern end 

of Elephant Butte State Park. 

Southwestern willow flycatcher 

territories have been detected on the 

middle Rio Grande since 1993. In 2002, 

98 territories at 7 sites were detected. In 

2003, a high of 107 territories at 6 of 7 

different breeding sites were detected. A 

total of 85 territories were detected at 

the San Marcial site in 2003. 

Habitat with features essential for the 

southwestern willow flycatcher 

identified along the Middle Rio Grande 

within the Rio Grande Valley State Park 

(City of Albuquerque) is being 

conserved through implementation of 

their Bosque Action Plan. This plan 

describes preservation and conservation 

of vegetation and wildlife communities, 

including the flycatcher and the habitat 

upon which it depends. As a result of 

this management, the Rio Grande Valley 

State Park is being excluded from this 

critical habitat designation (see 

Relationship of Critical Habitat to 

Partnerships and Conservation Plans/ 

Easements on Private Lands—

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

Act section below). 

The Rio Grande on Pueblo of Isleta 

land immediately downstream of Rio 

Grande Valley State Park (City of 

Albuquerque) was identified as having 

features essential to the southwestern 

willow flycatcher. The Pueblo 

developed, completed, and is 

implementing actions described in their 

Southwestern Willow Flycatcher 

Management Plan. As a result, the 

segment identified on Pueblo of Isleta 

land is being excluded from this 

designation (see Relationship of Critical 

Habitat to American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act section below). 

Habitat with features essential for the 

southwestern willow flycatcher 

identified along the Middle Rio Grande 

within the Sevilleta and Bosque del 

Apache NWRs is being conserved by the 

Service. Goals and objectives of both 

refuges are the protection and 

restoration of riparian habitat for the 

southwestern willow flycatcher. A total 

of 11 territories as of 2003 were known 

from both NWRs (USGS 2004). As a 

result of the Service’s management of 

the refuge for wildlife and riparian 

habitat for the flycatcher, the Rio 

Grande within the Sevilleta and Bosque 

del Apache NWRs boundaries is being 

excluded from this designation (see 

Relationship of Critical Habitat to 

National Wildlife Refuge Lands—

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

Act section below). 

Exclusions of Military Lands Under 

Section 4(a)(3) 

Section 318 of fiscal year 2004 the 

National Defense Authorization Act 

(Public Law No. 108–136) amended the 

Endangered Species Act to address the 

relationship of Integrated Natural 

Resources Management Plans (INRMPs) 

to critical habitat by adding a new 

section 4(a)(3). This provision prohibits 

the Service from designating as critical 

habitat any lands or other geographical 

areas owned or controlled by the 

Department of Defense, or designated 

for its use, that are subject to an INRMP 

prepared under section 101 of the Sikes 

Act (16 U.S.C. 670a), if the Secretary of 

the Interior determines in writing that 

such plan provides a benefit to the 

species for which critical habitat is 

proposed for designation. 

The Sikes Act required each military 

installation that includes land and water 

suitable for the conservation and 

management of natural resources to 

complete an INRMP by November 17, 

2001. An INRMP integrates 

implementation of the military mission 

of the installation with stewardship of 

the natural resources found on military 

lands. Each INRMP includes an 

assessment of the ecological needs on 

the installation, including the need to 

provide for the conservation of listed 

species; a statement of goals and 

priorities; a detailed description of 

management actions to be implemented 

to provide for the ecological needs of 

listed species; and a monitoring and 

adaptive management plan. We consult 

with the military on the development 

and implementation of INRMPs for 

installations with listed species. 

An INRMP integrates implementation 

of the military mission of the 

installation with stewardship of the 

natural resources found there. Each 

INRMP includes an assessment of the 

ecological needs on the military 

installation, including conservation 

provisions for listed species; a statement 

of goals and priorities; a detailed 

description of management actions to be 

implemented to provide for these 

ecological needs; and a monitoring and 

adaptive management plan. 

We identified in the proposed critical 

habitat rule for the southwestern willow 

flycatcher possible exclusion of Camp 

Pendleton and Fallbrook Naval 

Weapons Station from critical habitat 

under section 4(b)(2)of the Act. After reevaluation, we have exempted lands 

owned by Camp Pendleton and 

Fallbrook Naval Weapons Station from 

the final critical habitat designation 

pursuant to section 4(a)(3) of the Act 

based on legally operative INRMPs that 

provide a benefit to the southwestern 

willow flycatcher. Detailed discussions 

of the exemptions and exclusion of 

military lands are discussed by 

installation below. 

Marine Corps Base, Camp Pendleton 

(MCBCP) 

Areas or habitat containing features 

essential to the conservation of the 

southwestern willow flycatcher within 

the boundaries of MCBCP occur 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 

exempted from critical habitat for the 

flycatcher. The exemption includes 

lands leased to the California 

Department of Parks and Recreation. 

Southwestern willow flycatcher 

populations within these watersheds on 

Camp Pendleton contain features 

essential to the conservation of the 

species because these watersheds retain 

relatively natural hydrological processes 

and functions. The Santa Margarita 

watershed is one of the least altered 

major watersheds occupied by the 

species throughout its range. 

Camp Pendleton’s INRMP was 

completed and signed by the 

Commanding General on November 9, 

2001. The INRMP provides conservation 

measures that will directly and 

indirectly benefit the southwestern 

willow flycatcher and other listed 

species found on the Base. According to 

Camp Pendleton’s May 26, 2005, 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60927 

comment letter, the Base annually 

reviews and updates its INRMP with 

cooperation of the Service and 

California Department of Fish and Game 

to verify that: (1) The Base has sufficient 

professionally trained natural resources 

management staff available to 

implement the INRMP; (2) there have 

not been significant changes to the 

installation’s mission requirements or 

its natural resources; (3) planned actions 

are implemented in an adaptive manner, 

adjusting management priorities and 

methodologies to accommodate 

changing natural resource and mission 

requirements; and (4) the required 

Federal, State, and installation 

coordination has occurred. 

Actions undertaken by Camp 

Pendleton that have directly or 

indirectly benefited the flycatcher 

include: (1) Removal of non-native plant 

and animal species from riparian 

habitats, including Arunda donax, a 

major invasive plant species, (2) control 

of brown-headed cowbirds (a nest 

parasite), for over the past ten years, (3) 

programmatic impact avoidance and 

minimization measures through the 

Riparian Biological Opinion (see below) 

and, (4) flycatcher surveys and 

monitoring. In addition to the above 

benefits, Camp Pendleton has hosted or 

funded the following research efforts in 

partnership with USGS-BRD: (1) 

Southwestern willow flycatcher 

demographic studies using banded 

flycatchers; (2) examination of 

vegetation characteristics at flycatcher 

nest sites; (3) riparian habitat use by 

birds (including southwestern willow 

flycatchers) with an emphasis on 

habitats dominated by exotic vegetation; 

(4) response of southwestern willow 

flycatchers to removal of exotic 

vegetation; (5) use of exotic riparian 

vegetation as nesting substrate; and, (6) 

use of non-listed birds as indicators of 

suitable southwestern willow flycatcher 

habitat. 

Camp Pendleton manages listed 

species, including the southwestern 

willow flycatcher, in its riparian areas, 

such as Santa Margarita River, within 

the framework of programmatic 

management plans, approved in a 

biological opinion issued by the Service 

on October 30, 1995 (USFWS 1995a). 

The biological opinion discusses 

ongoing and planned training activities, 

infrastructure maintenance activities, 

several construction projects, and a 

Riparian and Estuarine Ecosystem 

Conservation Plan and assesses 

potential impacts to six federally-listed 

species, including the southwestern 

willow flycatcher. The Conservation 

Plan is designed to maintain and 

enhance the biological diversity of the 

riparian ecosystem on Camp Pendleton 

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. Therefore, since the 

Conservation Plan provides a benefit to 

the species as outlined above, and since 

the INRMP is based on this plan, we 

have determined that the INRMP does 

provide a benefit for the southwestern 

willow flycatcher. 

Camp Pendleton has demonstrated 

ongoing funding of their INRMP and 

management of endangered and 

threatened species. According to their 

May 26, 2005, comment letter, in fiscal 

year 2003, Camp Pendleton spent 

approximately $5 million to fund 

INRMP-driven projects and to assure its 

implementation. During fiscal year 

2004, they applied over $3.5 million 

toward projects, programs, and activities 

that provide direct and indirect benefit 

to the management and conservation of 

Base natural resources. Moreover, in 

partnership with the Service, Camp 

Pendleton is funding two Service 

biologists to assist in implementing 

their Sikes Act program and buffer lands 

acquisition initiative. 

Based on Camp Pendleton’s past 

history for listed species and their Sikes 

Act program, we believe that there is a 

high degree of certainty that the 

conservation efforts of their INRMP will 

be effective. Service biologists work 

closely with Camp Pendleton on a 

variety of endangered and threatened 

species issues, including the 

southwestern willow flycatcher. The 

management programs and Base 

directives to avoid and minimize 

impacts to the species are consistent 

with current and ongoing section 7 

consultations with Camp Pendleton. 

Therefore, we find that the INRMP for 

Camp Pendleton provides a benefit for 

the southwestern willow flycatcher and 

are exempting from critical habitat all 

lands on Camp Pendleton, including 

lands leased to the State, pursuant to 

section 4(a)(3) of the Act. 

Fallbrook Naval Weapons Station 

Fallbrook Naval Weapons Station 

(NWS), located in northern San Diego 

County, is approximately 8,850 ac 

(3,581 ha). Fallbrook Naval Weapons 

Station contains high quality habitat for 

the southwestern willow flycatcher 

within the Santa Margarita watershed. 

In 1996, Fallbrook NWS completed an 

INRMP to address conservation and 

management recommendations within 

the scope of the installation’s military 

mission. The INRMP provides 

conservation measures that will directly 

and indirectly benefit the southwestern 

willow flycatcher and other listed 

species found on the Naval Station. The 

1996 INRMP was prepared with input 

from the Service and incorporates 

conservation measures outlined in 

several previously completed 

consultations between the Service and 

Fallbrook NWS. Fallbrook NWS is 

currently working with the Service to 

revise and update their INRMP. 

Additionally, Fallbrook NWS has 

completed a formal section 7 

consultation with the Service to revise 

their Fire Management Plan (FMP) to 

provide more effective fuels 

management and wildfire control, while 

minimizing impacts to listed species on 

the installation, including the 

southwestern willow flycatcher. This 

plan is a primary component of the 

installation’s effort to develop and 

implement an updated INRMP. The 

revised FMP incorporates fuels 

management and fire suppression 

activities with habitat management 

needs of the southwestern willow 

flycatcher and other listed species to 

promote conservation and recovery of 

these species on Fallbrook NWS. This 

has resulted in minimal affects to 

surrounding habitat, including portions 

of the Santa Margarita River. 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 

60928 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

southwestern willow flycatcher are 

necessary. 

The Fallbrook NWS has also 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. 

Based on Fallbrook NWS’s Sikes Act 

program, we believe there is a high 

degree of certainty that the conservation 

efforts of their INRMP will be effective. 

Service biologists work closely with 

Fallbrook Naval Weapons Station on a 

variety of endangered and threatened 

species issues, including the 

southwestern willow flycatcher. The 

management programs and Station’s 

directives to avoid and minimize 

impacts to the species are consistent 

with current and ongoing section 7 

consultations with Fallbrook NWS. 

Therefore, we find that the INRMP for 

Fallbrook NWS provides a benefit for 

the southwestern willow flycatcher and 

are exempting from critical habitat all 

lands on Fallbrook NWS pursuant to 

section 4(a)(3) of the Act. 

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

Act 

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

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data available after 

taking into consideration the economic 

impact, impact on national security, and 

any other relevant impact, of specifying 

any particular area as critical habitat. 

An area may be excluded from critical 

habitat if it is determined that the 

benefits of such exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. Consequently, we may exclude 

an area from critical habitat based on 

economic impacts, impacts on national 

security, or other relevant impacts such 

as preservation of conservation 

partnerships, if we determine the 

benefits of excluding an area from 

critical habitat outweigh the benefits of 

including the area in critical habitat, 

provided the action of excluding the 

area will not result in the extinction of 

the species. 

In our critical habitat designation we 

use the provisions outlined in section 

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

specific areas on which are found 

physical and biological features 

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 

designation pursuant to section 4(b)(2) 

of the Act as discussed below. 

Areas excluded pursuant to section 

4(b)(2) included areas with: (1) Legally 

operative HCPs that cover the 

subspecies and provide assurances that 

the conservation measures for the 

subspecies will be implemented and 

effective; (2) draft HCPs that cover the 

subspecies, have undergone public 

review and comment, and provide 

assurances that the conservation 

measures for the subspecies will be 

implemented and effective (i.e., pending 

HCPs); (4) Tribal conservation plans/ 

programs that cover the subspecies and 

provide assurances that the 

conservation measures for the 

subspecies will be implemented and 

effective; (5) State and Federal 

conservation plans/programs that 

provide assurances that the 

conservation measures for the 

subspecies will be implemented and 

effective; (6) National Wildlife Refuges 

with Comprehensive Conservation Plans 

(CCPs) or programs that provide 

assurances that the conservation 

measures for the subspecies will be 

implemented and effective; and (7) 

Partnerships, conservation plans/ 

easements, or other type of formalized 

relationship/agreement where a 

conservation plans/program provide 

assurances that the conservation 

measures for the subspecies 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 areas containing features 

essential to the conservation of the 

southwestern willow flycatcher across 

six states there are private lands with 

legally operative HCPs, State and 

Federal Wildlife Areas with 

conservation plans/programs, Tribal 

lands, National Wildlife Refuges, and 

other private lands with management 

plans, partnerships, and/or programs in 

place for the southwestern willow 

flycatcher. 

We have considered, but are 

excluding from critical habitat for the 

southwestern willow flycatcher 

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

lands containing essential features in 

the following areas. The following lands 

are covered by the completed HCPs: 

Western Riverside Multiple Species 

Habitat Conservation Plan, San Diego 

County Multiple Species Conservation 

Plan, City of Carlsbad Habitat 

Management Program, Lower Colorado 

River Multiple Species Conservation 

Plan, Roosevelt Habitat Conservation 

Plan (only Roosevelt Lake). The 

following Tribes and Pueblos have 

completed and are implementing 

Southwestern Willow Flycatcher 

Management Plans: Hualapai, 

Chemehuevi, Colorado River, Fort 

Mojave, Quechan (Fort Yuma), YavapaiApache, San Carlos, Isleta Pueblo, La 

Jolla, and Rincon. The following 

Northern New Mexico Pueblos have 

established southwestern willow 

flycatcher management partnerships 

with the Service: San Illdefonso, Santa 

Clara, and San Juan. The following 

NWRs have completed CCPs or have 

developed management programs and 

implementing management strategies 

specific to southwestern willow 

flycatcher habitat: Pahranagat, Havasu, 

Cibola, Imperial, Bill Williams, 

Alamosa, Bosque del Apache, and 

Sevilleta. The following State and 

Federal Wildlife Areas have completed 

management plans/programs that are 

being implemented for the protection of 

southwestern willow flycatcher habitat: 

Overton and Key Pittman State Wildlife 

Areas, NV; Alamo State Wildlife Area, 

AZ; South Fork Kern River Wildlife 

Area, CA, Sprague Ranch, Kern River, 

CA. Other lands excluded under section 

4(b)(2) of the Act due to southwestern 

willow flycatcher/riparian habitat 

conservation plans/programs/easements 

and/or partnerships include: Los 

Angeles Department of Water and 

Power, Owens River, CA; San Luis 

Valley Partnership, Rio Grande and 

Conejos Rivers, CO; Hafenfeld Ranch, 

Kern River, CA; Salt River Project—

Horseshoe Lake, Verde River, AZ, the 

City of Albuquerque/Rio Grande Valley 

State Park, Rio Grande, NM, and U-Bar 

Ranch, Gila River, NM. See below for a 

detailed discussion of our exclusion of 

these lands under section 4(b)(2) of the 

Act. 

General Principles of Section 7 

Consultations Used in the 4(b)(2) 

Balancing Process 

The most direct, and potentially 

largest regulatory benefit of critical 

habitat is that federally authorized, 

funded, or carried out activities require 

consultation pursuant to section 7 of the 

Act to ensure that they are not likely to 

destroy or adversely modify critical 

habitat. There are two limitations to this 

regulatory effect. First, it only applies 

where there is a Federal nexus—if there 

is no Federal nexus, designation itself 

does not restrict actions that destroy or 

adversely modify critical habitat. 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60929 

Second, it only limits destruction or 

adverse modification. By its nature, the 

prohibition on adverse modification is 

designed to ensure those areas that 

contain the physical and biological 

features essential to the conservation of 

the species or unoccupied areas that are 

essential to the conservation are not 

eroded. Critical habitat designation 

alone, however, does not require 

specific steps toward recovery. 

Once consultation under section 7 of 

the Act is triggered, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect the listed species or its critical 

habitat. However, if the Service 

determines through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

should be initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

jeopardize the continued existence of a 

listed species or result in destruction or 

adverse modification of critical habitat, 

with separate analyses being made 

under both the jeopardy and the adverse 

modification standards. For critical 

habitat, a biological opinion that 

concludes in a determination of no 

destruction or adverse modification may 

contain discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not contain any mandatory 

reasonable and prudent measures or 

terms and conditions. Mandatory 

reasonable and prudent alternatives to 

the proposed Federal action would only 

be issued when the biological opinion 

results in a jeopardy or adverse 

modification conclusion. 

We also note that for 30 years prior to 

the Ninth Circuit Court’s decision in 

Gifford Pinchot, the Service equated the 

jeopardy standard with the standard for 

destruction or adverse modification of 

critical habitat. The Court ruled that the 

Service could no longer equate the two 

standards and that adverse modification 

evaluations require consideration of 

impacts on the recovery of species. 

Thus, under the Gifford Pinchot 

decision, critical habitat designations 

may provide greater benefits to the 

recovery of a species. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat in that it provides the framework 

for the consultation process. 

Educational Benefits of Critical Habitat 

The benefit of including lands in 

critical habitat is that the designation of 

critical habitat serves to educate 

landowners, State and local 

governments, and the public regarding 

the potential conservation value of an 

area. This helps focus and contribute to 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for the southwestern 

willow flycatcher. In general the 

educational benefit of a critical habitat 

designation always exists, although in 

some cases it may be redundant with 

other educational effects. For example, 

HCPs have significant public input and 

may largely duplicate the educational 

benefit of a critical habitat designation. 

This benefit is closely related to a 

second, more indirect benefit; in that 

designation of critical habitat would 

inform State agencies and local 

governments about areas that could be 

conserved under State laws or local 

ordinances. 

However, we believe that there would 

be little additional informational benefit 

gained from the designation of critical 

habitat for the exclusions we are making 

in this rule because these areas were 

included in the proposed rule as having 

features essential to the conservation of 

the flycatcher. Consequently, we believe 

that the informational benefits are 

already provided even though these 

areas are not designated as critical 

habitat. Additionally, the purpose 

normally served by the designation of 

informing State agencies and local 

governments about areas which would 

benefit from protection and 

enhancement of essential features and 

habitat for the southwestern willow 

flycatcher is already well established 

among State and local governments, and 

Federal agencies in those areas which 

we are excluding in this rule on the 

basis of HCPs, and other existing habitat 

management protections. 

As noted elsewhere in this rule, the 

southwestern willow flycatcher is 

migratory and thus may receive some 

additional benefit from a critical habitat 

designation in that it is not present yearround in the U.S. However, we believe 

that based on the educational benefits 

already being provided as to the 

importance of these areas, as described 

above, and the fact that effects to 

flycatchers as a result of impacts to 

habitat are consulted upon regardless of 

what time of year impacts may occur, 

minimal if any additional benefits 

would result. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 

Habitat Conservation Plans—Exclusions 

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

Another process for long term habitat 

protection is available under section 

10(a)(1)(B) of the Act, which authorizes 

us to issue permits allowing the take of 

listed wildlife species incidental to 

otherwise lawful activities to nonFederal entities such as private 

landowners and State and local 

governments. The incidental take permit 

can not be issued until the permittee 

establishes habitat protection pursuant 

to the terms of an HCP. The HCP must 

identify conservation measures that the 

permittee agrees to implement for the 

species to minimize and mitigate the 

impacts of the permitted incidental take, 

and must have funding for these 

conservation measures assured before 

the take permit is issued. Frequently, as 

is the case with the HCPs for the 

southwestern willow flycatcher 

discussed below, the habitat 

protections, inclusive of protections for 

essential features, are long term 

management actions which assist in 

providing significant conservation 

benefit to the essential features, the 

habitat mosaic, and the subpecies. 

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. Some areas 

occupied by the southwestern willow 

flycatcher involve several complex 

HCPs that address multiple species, 

cover large areas, and are important to 

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 

California have been, or are being, 

developed to provide for the 

conservation of numerous federallylisted species and unlisted sensitive 

species and the habitat that provides for 

their biological needs. These HCPs are 

designed to proactively implement 

conservation actions to address future 

projects that are anticipated to occur 

within the planning area of the HCP. 

However, given the broad scope of these 

regional HCPs, not all projects 

envisioned to potentially occur may 

actually take place. The State of 

California also has a Natural 

Communities Conservation Program 

(NCCP) process that is very similar to 

the Federal HCP process and is often 

completed in conjunction with the HCP 

60930 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

process. We recognize that many of the 

projects with HCPs also have state 

issued NCCPs. 

In the case of approved regional HCPs 

and accompanying Implementing 

Agreements (IAs) (e.g., those sponsored 

by cities, counties, or other local 

jurisdictions) that provide for incidental 

take coverage for the southwestern 

willow flycatcher, a primary goal of 

these regional plans is to provide for the 

protection and management of features 

essential for the species’ conservation 

and thus habitat necessary for 

conservation, while directing 

development to other areas. In the case 

of approved regional HCPs and 

accompanying Implementing 

Agreements (IAs) (e.g., those sponsored 

by cities, counties, or other local 

jurisdictions) that provide for incidental 

take coverage for the southwestern 

willow flycatcher, a primary goal of 

these regional plans is to provide for the 

protection and management of habitat 

essential for the species’ conservation, 

while directing development to other 

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 southwestern 

willow flycatcher. The process also 

enables us to conduct detailed 

evaluations of the importance of such 

lands to the long-term survival of the 

species in the context of constructing a 

system of interlinked habitat blocks that 

provide for its biological needs. 

We believe the conservation achieved 

through implementing HCPs is typically 

greater than would be achieved through 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. HCPs 

cause permittees to consider, evaluate, 

and commit resources to implement 

long-term management to particular 

habitat for at least one and possibly 

other listed or sensitive species. HCPs 

undergo analysis under NEPA, involve 

public participation, and go through 

intra-Service section 7 consultation for 

issuance of the permit. In contrast, 

section 7 consultations for critical 

habitat only consider listed species in 

the project area evaluated and Federal 

agencies are only committed to prevent 

adverse modification to critical habitat 

caused by the particular project and are 

not committed to provide conservation 

or long-term benefits to areas not 

affected by the proposed project. Thus, 

any management plan or HCP which 

considers enhancement or recovery as 

the management standard will always 

provide as much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

Below we provide our specific 4(b)(2) 

discussions for each of the HCPs that we 

are excluding from this final 

designation. 

Santa Ana Management Unit, CA 

Western Riverside County Multiple 

Species Habitat Conservation Plan 

(MSHCP) 

The Western Riverside Multiple 

Species Habitat Conservation Plan 

(MSHCP) was finalized and approved 

on June 22, 2004. Participants in this 

HCP include 14 cities; the County of 

Riverside, including the Riverside 

County Flood Control and Water 

Conservation Agency, Riverside County 

Transportation Commission, Riverside 

County Parks and Open Space District, 

and Riverside County Waste 

Department; the California Department 

of Parks and Recreation; and the 

California Department of 

Transportation. The Western Riverside 

MSHCP is a subregional plan under the 

State’s NCCP and was developed in 

cooperation with the California 

Department of Fish and Game. Within 

the 510,000 ha (1.26 million ac) 

planning area of the MSHCP, 

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

diverse habitats are being conserved. 

The conservation of 62,000 ha (153,000 

ac) complements 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 Conservation Area will 

include at least 4,282 ha (10,580 ac) of 

flycatcher habitat (breeding and 

migration habitat) including six core 

areas of high quality habitat and 

interconnecting linkages, including the 

segments of the Santa Ana River, San 

Timoteo Canyon/Yucaipa Creek, and 

Temecula Creek (including Vail Lake). 

The plan aims to conserve 100 percent 

of breeding habitat for the southwestern 

willow flycatcher, including buffer areas 

100 m (328 ft) adjacent to breeding 

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 breeding 

habitat 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 provides for 

the conservation of the species because 

it provides for the conservation of 

breeding and migration flycatcher 

habitat, the conservation of dispersal 

habitat and adjacent upland areas, 

surveys for undiscovered populations, 

and the maintenance and potential 

restoration of suitable habitat areas 

within the conservation area. 

We are excluding portions of the 

Santa Ana Watershed, including the 

Santa Ana River, San Timeteo Canyon/ 

Yucaipa Creek, and Temecula Creek 

(including Vail Lake) containing 

features essential to the conservation of 

the flycatcher from the final designation 

of critical habitat for the southwestern 

willow flycatcher pursuant to section 

4(b)(2) of the Act because it is within 

the planning area boundary for the 

Western Riverside MSHCP. 

(1) Benefits of Inclusion 

We believe that there is minimal 

benefit from designating critical habitat 

for the southwestern willow flycatcher 

within the MSHCP because, as 

explained above, these lands are already 

managed for the conservation of species 

covered by the MSHCP, including this 

subspecies. 

As discussed above in the ‘‘General 

Principles of Section 7 Consultations 

Used in the 4(b)(2) Balancing Process’’

section, a benefit of including an area 

within a critical habitat designation is 

the protection provided by section 

7(a)(2) of the Act that directs Federal 

agencies to ensure that their actions do 

not result in the destruction or adverse 

modification of critical habitat. We 

completed a section 7 consultation on 

the issuance of the section 10(a)(1)(B) 

permit for the MSHCP on June 22, 2004, 

and concluded that the southwestern 

willow flycatcher was adequately 

conserved and the issuance of the 

permit would not jeopardize the 

continued existence of this subspecies. 

The areas excluded as critical habitat 

are currently occupied by the species. If 

these areas were designated as critical 

habitat, any actions with a Federal 

nexus which might adversely affect the 

critical habitat would require a 

consultation with us, as explained 

above. However, inasmuch as this area 

is currently occupied by the species, 

consultation for Federal activities which 

might adversely impact the species or 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60931 

would result in take would be required 

even without the critical habitat 

designation. The requirement to 

conduct such consultation would occur 

regardless of whether the authorization 

for incidental take occurs under either 

section 7 or section 10 of the Act. 

The inclusion of these areas of nonFederal land as critical habitat would 

provide some additional Federal 

regulatory benefits for the species 

consistent with the conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. A 

benefit of inclusion would be the 

requirement of a Federal agency to 

ensure that their actions on these nonFederal lands do not likely result in the 

destruction or adverse modification of 

critical habitat. This additional analysis 

to determine destruction or adverse 

modification of critical habitat is likely 

to be small because the lands are not 

under Federal ownership and any 

Federal agency proposing a Federal 

action on these areas of non-Federal 

lands would likely consider the 

conservation value of these lands as 

identified in the Western Riverside 

County MSHCP and take the necessary 

steps to avoid jeopardy or the 

destruction or adverse modification of 

critical habitat. 

We believe that designating any nonFederal lands within existing public/ 

quasi public lands, proposed conceptual 

reserve design lands, and lands targeted 

for conservation within the Western 

Riverside County MSCHP Plan Area, 

would provide little additional 

educational and Federal regulatory 

benefits for the species. The additional 

educational benefits that might arise 

from critical habitat designation have 

been largely accomplished through the 

public review and comment of the 

environmental impact documents which 

accompanied the development of the 

Western Riverside County MSHCP and 

the recognition by some of the 

landowners of the presence of the 

endangered southwestern willow 

flycatcher and the value of their lands 

for the conservation and recovery of the 

species (e.g., County of Riverside 

Regional Parks and Open Space 

District). In addition, as discussed in the 

Educational Benefits of Critical Habitat 

section above, we believe the 

conservation achieved through 

implementing HCPs is typically greater 

than would be achieved through 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. 

We believe that there would be little 

additional informational benefit gained 

from including the MSHCP within the 

designation because this area was 

included in the proposed rule as having 

lands containing features essential to 

the flycatcher. Consequently, we believe 

that the informational benefits are 

already provided even though this area 

is not designated as critical habitat. 

Additionally, the purpose of the MSHCP 

to provide protection and enhancement 

of habitat for the southwestern willow 

flycatcher is already well established 

among State and local governments, and 

Federal agencies. 

(2) Benefits of Exclusion 

As mentioned above, the Western 

Riverside MSHCP provides for the 

conservation of breeding and migration 

flycatcher habitat, the conservation of 

dispersal habitat and adjacent upland 

areas, surveys for undiscovered 

populations, and the maintenance and 

potential restoration of suitable habitat 

areas within the conservation area. The 

Western Riverside MSHCP therefore 

provides for protection of the PCEs, and 

addresses special management needs 

such as surveys in suitable habitat and 

management of essential features and 

habitat. Designation of critical habitat 

would therefore be redundant on these 

lands, and would not provide additional 

protections. 

The benefits of excluding lands 

within HCPs from critical habitat 

designation include relieving 

landowners, communities, and counties 

of any additional regulatory burden that 

might be imposed by critical habitat. 

Many HCPs, particularly large regional 

HCPs take many years to develop and, 

upon completion, become regional 

conservation plans that are consistent 

with the recovery objectives for listed 

species that are covered within the plan 

area. Additionally, many of these HCPs 

provide conservation benefits to 

unlisted, sensitive species. Imposing an 

additional regulatory review after an 

HCP is completed solely as a result of 

the designation of critical habitat may 

undermine conservation efforts and 

partnerships in many areas. In fact, it 

could result in the loss of benefits if 

participants abandon the voluntary HCP 

process because it may result in 

requiring additional regulations 

compared to other parties who have not 

voluntarily participated in species 

conservation. Designation of critical 

habitat within the boundaries of 

approved HCPs could be viewed as a 

disincentive to those entities currently 

developing HCPs or contemplating them 

in the future. 

A related benefit of excluding lands 

within HCPs from critical habitat 

designation is the unhindered, 

continued ability to seek new 

partnerships with future HCP 

participants including States, Counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. If lands 

within HCP plan areas are designated as 

critical habitat, it would likely have a 

negative effect on our ability to establish 

new partnerships to develop HCPs, 

particularly large, regional HCPs that 

involve numerous participants and 

address landscape-level conservation of 

species and habitats. By excluding these 

lands, we preserve our current 

partnerships and encourage additional 

conservation actions in the future. 

Furthermore, an HCP or NCCP/HCP 

application must itself be consulted 

upon. While this consultation will not 

look specifically at the issue of adverse 

modification to critical habitat, unless 

critical habitat has already been 

designated within the proposed plan 

area, it will determine if the HCP 

jeopardizes the species in the plan area. 

The jeopardy analysis is similar to the 

analysis of adverse modification to 

critical habitat. In addition, Federal 

actions not covered by the HCP in areas 

occupied by listed species would still 

require consultation under section 7 of 

the Act due to the presence of the 

species. HCP and NCCP/HCPs typically 

provide for greater conservation benefits 

to a covered species than section 7 

consultations because HCPs and NCCP/ 

HCPs assure the long-term protection 

and management of a covered species 

and its habitat. In addition, funding for 

such management is assured 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 section 7 consultations 

that, in contrast to HCPs, often do not 

commit the project proponent to longterm special management or protections. 

Thus, a consultation typically does not 

accord the lands it covers the extensive 

benefits a HCP or NCCP/HCP provides. 

The development and implementation 

of HCPs or NCCP/HCPs provide other 

important conservation benefits, 

including the development of biological 

information to guide the conservation 

efforts and assist in species 

conservation, and the creation of 

innovative solutions to conserve species 

while allowing for development. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, we believe that the 

benefits of excluding the Western 

Riverside MSHCP from the designation 

of critical habitat for the southwestern 

willow flycatcher outweigh the benefits 

60932 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

of including this area in critical habitat. 

We find that including the Western 

Riverside MSHCP would result in very 

minimal, if any, additional benefits to 

the southwestern willow flycatcher, as 

explained above. 

We also find that the exclusion of 

these lands will not lead to the 

extinction of the subspecies, nor hinder 

its recovery because the management 

emphasis of the Western Riverside 

MSHCP is to protect and enhance 

habitat for the southwestern willow 

flycatcher. 

We believe that exclusion of these 

lands from critical habitat will not result 

in extinction of the southwestern 

willow flycatcher since these lands will 

be conserved and managed for the 

benefit of this species pursuant to the 

Western Riverside County MSHCP. The 

Western Riverside MSHCP includes 

specific conservation objectives, survey 

requirements, avoidance and 

minimization measures, and 

management for the southwestern 

willow flycatcher that exceed any 

conservation value provided as a result 

of a critical habitat designation. 

The jeopardy standard of section 7 

and routine implementation of habitat 

conservation through the section 7 

process also provide assurances that the 

species will not go extinct. In addition, 

the species is protected from take under 

section 9 of the Act. The exclusion 

leaves these protections unchanged 

from those that would exist if the 

excluded areas were designated as 

critical habitat. 

Critical habitat is being designated for 

the southwestern willow flycatcher in 

other areas that will be accorded the 

protection from adverse modification by 

Federal actions using the conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. 

Additionally, the species occurs on 

lands protected and managed either 

explicitly for the species, or indirectly 

through more general objectives to 

protect natural values, this factor acting 

in concert with the other protections 

provided under the Act for these lands 

absent designation of critical habitat on 

them, and acting in concert with 

protections afforded each species by the 

remaining critical habitat designation 

for the species, lead us to find that 

exclusion of these lands within the 

Western Riverside County MSHCP will 

not result in extinction of the 

southwestern willow flycatcher. 

San Diego Management Unit 

San Diego Multiple Species 

Conservation Program (MSCP) 

Below we first provide some general 

background information on the San 

Diego Multiple Species Conservation 

Plan/Habitat Conservation Plan (MSCP/ 

HCP), followed by an analysis pursuant 

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

benefits of including San Diego MSCP/ 

HCP land within the critical habitat 

designation, an analysis of the benefits 

of excluding this area, and an analysis 

of why we believe the benefits of 

exclusion are greater than those of 

inclusion. 

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 has been 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 

features essential to the conservation of 

the southwestern willow flycatcher, 

including areas along portions of the 

San Dieguito (including Lake Hodges), 

Santa Ysabel, and San Diego Rivers. 

These particular areas lie within the 

boundaries of approved subarea plans. 

Conservation measures specific to the 

southwestern willow flycatcher within 

the San Diego MSCP/HCP include the 

preservation and management of 3,845 

ha (9,500 ac) (81 percent) of the riparian 

habitat within the planning area, as well 

as eight of the nine known breeding 

locations at the time of the plan’s 

development. Surveys are required for 

projects potentially affecting this 

species, and breeding habitat will be 

identified and avoided. Specific 

management directives include 

measures to provide appropriate 

flycatcher habitat, upland buffers for all 

known flycatcher populations, cowbird 

control, specific measures to protect 

against detrimental edge effects, and 

monitoring. 

(1) Benefits of Inclusion 

We believe that there is minimal 

benefit from designating critical habitat 

for the southwestern willow flycatcher 

within the San Diego MSCP/HCP 

because, as explained above, these lands 

are already managed for the 

conservation of covered species, 

including this subspecies. 

As discussed above in the ‘‘General 

Principles of Section 7 Consultations 

Used in the 4(b)(2) Balancing Process’’

section, a benefit of including an area 

within a critical habitat designation is 

the protection provided by section 

7(a)(2) of the Act that directs Federal 

agencies to ensure that their actions do 

not result in the destruction or adverse 

modification of critical habitat. We 

completed a section 7 consultation on 

the issuance of the section 10(a)(1)(B) 

permit for the County of San Diego 

subarea plan within the San Diego 

MSCP/HCP on May 12, 1998, and 

concluded that the southwestern willow 

flycatcher was adequately conserved 

and the issuance of the permit would 

not jeopardize the continued existence 

of this subspecies. 

The areas excluded as critical habitat 

are currently occupied by the 

subspecies. If these areas were 

designated as critical habitat, any 

actions with a Federal nexus which 

might adversely affect the critical 

habitat would require a consultation 

with us, as explained above. However, 

inasmuch as this area is currently 

occupied by the subspecies, 

consultation for Federal activities which 

might adversely impact the subspecies 

or would result in take would be 

required even without the critical 

habitat designation. The requirement to 

conduct such consultation would occur 

regardless of whether the authorization 

for incidental take occurs under either 

section 7 or section 10 of the Act. 

The inclusion of these areas of nonFederal land as critical habitat would 

provide some additional Federal 

regulatory benefits for the subspecies 

consistent with the conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. A 

benefit of inclusion would be the 

requirement of a Federal agency to 

ensure that their actions on these nonFederal lands do not likely result in the 

destruction or adverse modification of 

critical habitat. This additional analysis 

to determine destruction or adverse 

modification of critical habitat is likely 

to be small because the lands are not 

under Federal ownership and any 

Federal agency proposing a Federal 

action on these areas of non-Federal 

lands would likely consider the 

conservation value of these lands as 

identified in the San Diego MSCP/HCP 

and take the necessary steps to avoid 

jeopardy or the destruction or adverse 

modification of critical habitat. 

We believe that designating any lands 

within the San Diego MSCP/HCP Plan 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60933 

Area would provide little additional 

educational and Federal regulatory 

benefits for the subspecies. The 

additional educational benefits that 

might arise from critical habitat 

designation have been largely 

accomplished through the public review 

and comment of the environmental 

impact documents which accompanied 

the development of the San Diego 

MSCP/HCP Plan Area and the 

recognition by some of the landowners 

of the presence of the endangered 

southwestern willow flycatcher and the 

value of their lands for the conservation 

and recovery of the species. In addition, 

as discussed in the Educational Benefits 

of Critical Habitat section above, we 

believe the conservation achieved 

through implementing HCPs is typically 

greater than would be achieved through 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. 

We believe that there would be little 

additional informational benefit gained 

from including the San Diego MSCP/ 

HCP Plan Area within the designation 

because this area was included in the 

proposed rule as having lands that 

contain features essential to the 

conservation of the flycatcher. 

Consequently, we believe that the 

informational benefits are already 

provided even though this area is not 

designated as critical habitat. 

Additionally, the purpose of the San 

Diego MSCP/HCP to provide protection 

and enhancement of habitat for the 

southwestern willow flycatcher is 

already well established among State 

and local governments, and Federal 

agencies. 

(2) Benefits of Exclusion 

As mentioned above, the San Diego 

MSCP/HCP provides for the 

conservation of occupied and historic 

habitat, the removal of non-native 

predators, and the avoidance of impacts 

if a population were to be found. The 

San Diego MSCP/HCP therefore 

provides for protection of the PCEs, and 

addresses special management needs 

such as surveys in suitable habitat and 

management of habitat. Designation of 

critical habitat would therefore be 

redundant on these lands, and would 

not provide additional protections. 

The benefits of excluding lands 

within HCPs from critical habitat 

designation include relieving 

landowners, communities, and counties 

of any additional regulatory burden that 

might be imposed by critical habitat. 

Many HCPs, particularly large regional 

HCPs take many years to develop and, 

upon completion, become regional 

conservation plans that are consistent 

with the recovery objectives for listed 

species that are covered within the plan 

area. Additionally, many of these HCPs 

provide conservation benefits to 

unlisted, sensitive species. Imposing an 

additional regulatory review after an 

HCP is completed solely as a result of 

the designation of critical habitat may 

undermine conservation efforts and 

partnerships in many areas. In fact, it 

could result in the loss of benefits to the 

subspecies if participants abandon the 

voluntary HCP process because it may 

result in additional regulations 

requiring more of them than other 

parties who have not voluntarily 

participated in conservation efforts for 

the subspecies. Designation of critical 

habitat within the boundaries of 

approved HCPs could be viewed as a 

disincentive to those entities currently 

developing HCPs or contemplating them 

in the future. 

A related benefit of excluding lands 

within HCPs from critical habitat 

designation is the unhindered, 

continued ability to seek new 

partnerships with future HCP 

participants including States, counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. If lands 

within HCP plan areas are designated as 

critical habitat, it would likely have a 

negative effect on our ability to establish 

new partnerships to develop HCPs, 

particularly large, regional HCPs that 

involve numerous participants and 

address landscape-level conservation of 

species and habitats. By excluding these 

lands we preserve our current 

partnerships and encourage additional 

conservation actions in the future. 

Furthermore, an HCP or NCCP/HCP 

application must itself be consulted 

upon. While this consultation will not 

look specifically at the issue of adverse 

modification to critical habitat, unless 

critical habitat has already been 

designated within the proposed plan 

area, it will determine if the HCP 

jeopardizes the species in the plan area. 

The jeopardy analysis is similar to the 

analysis of adverse modification to 

critical habitat. In addition, Federal 

actions not covered by the HCP in areas 

occupied by listed species would still 

require consultation under section 7 of 

the Act due to the presence of the 

species. HCP and NCCP/HCPs typically 

provide for greater conservation benefits 

to a covered species than section 7 

consultations because HCPs and NCCP/ 

HCPs assure the long-term protection 

and management of a covered species, 

features essential to its conservation, 

and its habitat. In addition, funding for 

such management is assured 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 section 7 consultations 

that, in contrast to HCPs, often do not 

commit the project proponent to longterm special management or protections. 

Thus, a consultation typically does not 

accord the lands it covers the extensive 

benefits a HCP or NCCP/HCP provides. 

The development and implementation 

of HCPs or NCCP/HCPs provide other 

important conservation benefits, 

including the development of biological 

information to guide the conservation 

efforts and assist in species 

conservation, and the creation of 

innovative solutions to conserve species 

while allowing for development. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, we believe that the 

benefits of excluding the San Diego 

MSCP/HCP from the designation of 

critical habitat for the southwestern 

willow flycatcher outweigh the benefits 

of including these lands in critical 

habitat. We find that including the San 

Diego MSCP/HCP would result in very 

minimal, if any, additional benefits to 

the southwestern willow flycatcher, as 

explained above. 

We also find that the exclusion of 

these lands will not lead to the 

extinction of the subspecies, nor hinder 

its recovery because the management 

emphasis of the San Diego MSCP/HCP 

is to protect and enhance habitat for the 

southwestern willow flycatcher. 

We believe that exclusion of these 

lands from critical habitat will not result 

in extinction of the southwestern 

willow flycatcher since these lands will 

be conserved and managed for the 

benefit of this subspecies pursuant to 

the San Diego MSCP/HCP. The San 

Diego MSCP/HCP includes specific 

conservation objectives, survey 

requirements, avoidance and 

minimization measures, and 

management for the southwestern 

willow flycatcher that exceed any 

conservation value provided as a result 

of a critical habitat designation, 

inclusive of that following a 

conservation standard based on the 

Ninth Circuit Court’s decision in Gifford 

Pinchot. 

The jeopardy standard of section 7 

and routine implementation of habitat 

conservation through the section 7 

process also provide assurances that the 

species will not go extinct. In addition, 

the species is protected from take under 

section 9 of the Act. The exclusion 

leaves these protections unchanged 

60934 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

from those that would exist if the 

excluded areas were designated as 

critical habitat, inclusive of that 

following a conservation standard based 

on the Ninth Circuit Court’s decision in 

Gifford Pinchot. 

Critical habitat is being designated for 

the southwestern willow flycatcher in 

other areas that will be accorded the 

protection from adverse modification by 

Federal actions using the conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. 

Additionally, the species occurs on 

lands protected and managed either 

explicitly for the species, or indirectly 

through more general objectives to 

protect natural values, this factor acting 

in concert with the other protections 

provided under the Act for these lands 

absent designation of critical habitat on 

them, and acting in concert with 

protections afforded each species by the 

remaining critical habitat designation 

for the species, lead us to find that 

exclusion of these lands within the San 

Diego MSCP/HCP will not result in 

extinction of the southwestern willow 

flycatcher. 

San Diego Management Unit 

City of Carlsbad’s Habitat Management 

Plan 

The City of Carlsbad’s Habitat 

Management Plan (HMP) was approved 

October 15, 2004. 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 lands with features essential to 

the conservation of the southwestern 

willow flycatcher, including all of Agua 

Hedionda Lagoon and a portion of Agua 

Hedionda Creek. 

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

land are within the Carlsbad HMP 

planning area, with about 3,561 ha 

(8,800 ac) 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 2,746 ha 

(6,786 ac). Conservation measures 

specific to the southwestern willow 

flycatcher within the Carlsbad HMP 

include the conservation of 200 ha (494 

ac) (86 percent) of the riparian 

vegetation in the city and 10 ha (25 ac) 

(86 percent) of oak woodland. Preserved 

lands include the four highest quality 

habitat areas for flycatchers identified 

within the plan area, including lands 

along Agua Hedionda Creek. For 

proposed projects in or adjacent to 

suitable habitat outside of preserve 

areas, mandatory surveys will be 

conducted, with impacts to breeding 

flycatchers completely avoided or 

reduced, as described in the paragraph 

below. Flycatcher habitat will be 

managed to restrict activities that cause 

degradation, including livestock 

grazing, human disturbance clearing or 

alteration of riparian vegetation, brownheaded cowbird parasitism, and 

insufficient water levels leading to loss 

of riparian habitat and surface water. 

Area-specific management directives 

shall include measures to provide 

appropriate flycatcher habitat, cowbird 

control, and specific measures to protect 

against detrimental edge effects, and 

removal of invasive exotic species (e.g., 

Arundo donax). Human access to 

flycatcher-occupied breeding habitat 

will be restricted during the breeding 

season (May 1–September 15) except for 

qualified researchers or land managers 

performing essential preserve 

management, monitoring, or research 

functions. Projects that cannot be 

conducted without placing equipment 

or personnel in or adjacent to sensitive 

habitats shall be timed to ensure that 

habitat is removed prior to the initiation 

of the breeding season. 

Projects having direct or indirect 

impacts to the southwestern willow 

flycatcher shall adhere to the following 

measures to avoid or reduce impacts: (1) 

The removal of native vegetation and 

habitat shall be avoided and minimized 

to the maximum extent practicable; (2) 

For temporary impacts, the work site 

shall be returned to pre-existing 

contours and revegetated with 

appropriate native species; (3) 

Revegetation specifications shall ensure 

creation and restoration of riparian 

woodland vegetation to a quality that 

eventually is expected to support 

nesting southwestern willow 

flycatchers, recognize that it may take 

many years (depending on type of 

activity and timing of flood events, etc.) 

to achieve this state; (4) Construction 

noise levels at the riparian canopy edge 

shall be kept below 60 dBA Leq 

(measured as Equivalent Sound Level) 

from 5 a.m. to 11 a.m. during the peak 

nesting period of March 15 to July 15. 

For the balance of the day/season, the 

noise levels shall not exceed 60 

decibels, averaged over a 1-hour period 

on an A-weighted decibel (dBA) (i.e., 1 

hour Leq/dBA); (5) Brown-headed 

cowbirds and other exotic species 

which prey upon the flycatcher shall be 

removed from the site; (6) For new 

developments adjacent to preserve areas 

that create conditions attractive to 

brown-headed cowbirds, jurisdictions 

shall require monitoring and control of 

cowbirds; (7) Biological buffers of at 

least 30 m (100 ft) shall be maintained 

adjacent to breeding flycatcher habitat, 

measured from the outer edge of 

riparian vegetation. Within this 30 m 

(100 ft) buffer, no new development 

shall be allowed, and the area shall be 

managed for natural biological values as 

part of the preserve system; (8) Suitable 

unoccupied breeding habitat preserved 

within the FPA shall be managed to 

maintain or mimic effects of natural 

stream or river processes (e.g., periodic 

substrate scouring and depositions); and 

(9) Natural riparian connections with 

upstream riparian habitat shall be 

maintained to ensure linkage to suitable 

occupied and unoccupied breeding 

habitat. 

(1) Benefits of Inclusion 

We believe that there is minimal 

benefit from designating critical habitat 

for the southwestern willow flycatcher 

within the Carlsbad HMP because, as 

explained above, these lands are already 

managed for the conservation of covered 

species, including this subspecies. 

As discussed above in the ‘‘General 

Principles of Section 7 Consultations 

Used in the 4(b)(2) Balancing Process’’

section, a benefit of including an area 

within a critical habitat designation is 

the protection provided by section 

7(a)(2) of the Act that directs Federal 

agencies to ensure that their actions do 

not result in the destruction or adverse 

modification of critical habitat. We 

completed a section 7 consultation on 

the issuance of the section 10(a)(1)(B) 

permit for the Carlsbad HMP on 

November 9, 2004, and concluded that 

the southwestern willow flycatcher was 

adequately conserved and the issuance 

of the permit would not jeopardize the 

continued existence of this subspecies. 

The areas excluded as critical habitat 

are currently occupied by the species. If 

these areas were designated as critical 

habitat, any actions with a Federal 

nexus which might adversely affect the 

critical habitat would require a 

consultation with us, as explained 

above. However, inasmuch as this area 

is currently occupied by the species, 

consultation for Federal activities which 

might adversely impact the species or 

would result in take would be required 

even without the critical habitat 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60935 

designation. The requirement to 

conduct such consultation would occur 

regardless of whether the authorization 

for incidental take occurs under either 

section 7 or section 10 of the Act. 

The inclusion of these areas of nonFederal land as critical habitat would 

provide some additional Federal 

regulatory benefits for the species 

consistent with the conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. A 

benefit of inclusion would be the 

requirement of a Federal agency to 

ensure that their actions on these nonFederal lands do not likely result in the 

destruction or adverse modification of 

critical habitat. This additional analysis 

to determine destruction or adverse 

modification of critical habitat is likely 

to be small because the lands are not 

under Federal ownership and any 

Federal agency proposing a Federal 

action on these areas of non-Federal 

lands would likely consider the 

conservation value of these lands as 

identified in the Carlsbad HMP and take 

the necessary steps to avoid jeopardy or 

the destruction or adverse modification 

of critical habitat. 

We believe that designating any lands 

within the Carlsbad HMP would 

provide little additional educational and 

Federal regulatory benefits for the 

species. The additional educational 

benefits that might arise from critical 

habitat designation have been largely 

accomplished through the public review 

and comment of the environmental 

impact documents which accompanied 

the development of the Carlsbad HMP 

and the recognition by some of the 

landowners of the presence of the 

endangered southwestern willow 

flycatcher and the value of their lands 

for the conservation and recovery of the 

species. In addition, as discussed in the 

Educational Benefits of Critical Habitat 

section above, we believe the 

conservation achieved through 

implementing HCPs is typically greater 

than would be achieved through 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. 

We believe that there would be little 

additional informational benefit gained 

from including the Carlsbad HMP 

within the designation because this area 

was included in the proposed rule as 

having lands containing features 

essential to the conservation of the 

flycatcher. Consequently, we believe 

that the informational benefits are 

already provided even though this area 

is not designated as critical habitat. 

Additionally, the purpose of the 

Carlsbad HMP to provide protection and 

enhancement of habitat for the 

southwestern willow flycatcher is 

already well established among State 

and local governments, and Federal 

agencies. 

(2) Benefits of Exclusion 

As mentioned above, the Carlsbad 

HMP provides for the conservation of 

occupied and historic habitat, the 

removal of non-native predators, and 

the avoidance of impacts if a population 

were to be found. The Carlsbad HMP 

therefore provides for protection of the 

PCEs, and addresses special 

management needs such as surveys in 

suitable habitat and management of 

habitat. Designation of critical habitat 

would therefore be redundant on these 

lands, and would provide little, if any, 

additional protections. 

The benefits of excluding lands 

within HCPs from critical habitat 

designation include relieving 

landowners, communities, and counties 

of any additional regulatory burden that 

might be imposed by critical habitat. 

Many HCPs, particularly large regional 

HCPs, take many years to develop and, 

upon completion, become regional 

conservation plans that are consistent 

with the recovery objectives for listed 

species that are covered within the plan 

area. Additionally, many of these HCPs 

provide conservation benefits to 

unlisted, sensitive species. Imposing an 

additional regulatory review after an 

HCP is completed solely as a result of 

the designation of critical habitat may 

undermine conservation efforts and 

partnerships in many areas. In fact, it 

could result in the loss of species 

benefits if participants abandon the 

voluntary HCP process because it may 

result in requiring additional 

regulations compared to other parties 

who have not voluntarily participated in 

species conservation. Designation of 

critical habitat within the boundaries of 

approved HCPs could be viewed as a 

disincentive to those entities currently 

developing HCPs or contemplating them 

in the future. 

A related benefit of excluding lands 

within HCPs from critical habitat 

designation is the unhindered, 

continued ability to seek new 

partnerships with future HCP 

participants including States, Counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. If lands 

within HCP plan areas are designated as 

critical habitat, it would likely have a 

negative effect on our ability to establish 

new partnerships to develop HCPs, 

particularly large, regional HCPs that 

involve numerous participants and 

address landscape-level conservation of 

species and habitats. By preemptively 

excluding these lands, we preserve our 

current partnerships and encourage 

additional conservation actions in the 

future. 

Furthermore, an HCP or NCCP/HCP 

application must itself be consulted 

upon. While this consultation will not 

look specifically at the issue of adverse 

modification to critical habitat, unless 

critical habitat has already been 

designated within the proposed plan 

area, it will determine if the HCP 

jeopardizes the species in the plan area. 

The jeopardy analysis is similar to the 

analysis of adverse modification to 

critical habitat. In addition, Federal 

actions not covered by the HCP in areas 

occupied by listed species would still 

require consultation under section 7 of 

the Act. HCP and NCCP/HCPs typically 

provide for greater conservation benefits 

to a covered species than section 7 

consultations because HCPs and NCCP/ 

HCPs assure the long-term protection 

and management of a covered species 

and its habitat, and funding for such 

management is assured through the 

standards found in the 5 Point Policy for 

HCPs (64 FR 35242) and the HCP ‘‘No 

Surprises’’ regulation (63 FR 8859). 

Such assurances are typically not 

provided by section 7 consultations 

that, in contrast to HCPs, often do not 

commit the project proponent to longterm special management or protections. 

Thus, a consultation typically does not 

accord the lands it covers the extensive 

benefits a HCP or NCCP/HCP provides. 

The development and implementation 

of HCPs or NCCP/HCPs provide other 

important conservation benefits, 

including the development of biological 

information to guide the conservation 

efforts and assist in species 

conservation, and the creation of 

innovative solutions to conserve species 

while allowing for development. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, we believe that the 

benefits of excluding the Carlsbad HMP 

from the designation of critical habitat 

for the southwestern willow flycatcher 

outweigh the benefits of including these 

lands in critical habitat. We find that 

including the Carlsbad HMP would 

result in very minimal, if any, 

additional benefits to the southwestern 

willow flycatcher, as explained above. 

We also find that the exclusion of 

these lands will not lead to the 

extinction of the subspecies, nor hinder 

its recovery because the management 

emphasis of the Carlsbad HMP is to 

protect and enhance habitat for the 

southwestern willow flycatcher. 

60936 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

We believe that exclusion of these 

lands from critical habitat will not result 

in extinction of the southwestern 

willow flycatcher since these lands will 

be conserved and managed for the 

benefit of this species pursuant to the 

Carlsbad HMP. The Carlsbad HMP 

includes specific conservation 

objectives, survey requirements, 

avoidance and minimization measures, 

and management for the southwestern 

willow flycatcher that exceed any 

conservation value provided as a result 

of a critical habitat designation. 

The jeopardy standard of section 7 

and routine implementation of habitat 

conservation through the section 7 

process also provide assurances that the 

species will not go extinct. In addition, 

the species is protected from take under 

section 9 of the Act. The exclusion 

leaves these protections unchanged 

from those that would exist if the 

excluded areas were designated as 

critical habitat. 

Critical habitat is being designated for 

the southwestern willow flycatcher in 

other areas that will be accorded the 

protection from adverse modification by 

Federal actions using the conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. 

Additionally, the species occurs on 

lands protected and managed either 

explicitly for the species, or indirectly 

through more general objectives to 

protect natural values, this factor acting 

in concert with the other protections 

provided under the Act for these lands 

absent designation of critical habitat on 

them, and acting in concert with 

protections afforded each species by the 

remaining critical habitat designation 

for the species, lead us to find that 

exclusion of these lands within the 

Carlsbad HMP will not result in 

extinction of the southwestern willow 

flycatcher. 

Roosevelt Management Unit, AZ 

Roosevelt Lake HCP 

A 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 

and loss of habitat would occur over the 

50 year life of the HCP. Flycatcher 

habitat at Roosevelt Lake varies 

depending on how and when the lake 

recedes as a result of water in-flow and 

subsequent storage capacity and 

delivery needs. As the lake recedes, flatgradient, fine moist soils are exposed 

which provide seed beds for riparian 

vegetation. The size of Roosevelt Lake, 

and therefore the amount and location 

of flycatcher habitat, can vary greatly 

due to dam operations, floods, and 

drought. However, even in the expected 

high-water years, we determined that 

some flycatcher habitat would persist at 

Roosevelt Lake providing a net benefit 

to the bird. Species covered in this HCP 

were the southwestern willow 

flycatcher, bald eagle (Haliaeetus 

leucocephalus), and yellow-billed 

cuckoo (Coccyzus americanus). 

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 AZ, and implementation of 

conservation measures to protect up to 

an additional 304 ha (750 ac) of 

flycatcher habitat. Measures in the HCP 

to protect habitat at Roosevelt Lake 

include having the Forest Service hire a 

Forest Service employee (USFS) to 

patrol and improve protection of 

flycatcher habitat in the Roosevelt 

lakebed from adverse activities such as 

fire ignition from human neglect, 

improper vehicle use, etc., and to 

develop habitat at the Rock House Farm 

Site. 

The conclusion provided in our 

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 (trespass livestock, recreation, 

fire, habitat clearing, development, 

roads, fencing, boating, gravel 

collection, off-highway vehicles, etc.), 

not at the discretion or under the 

control of SRP. While it is not possible 

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

additional level of protection that would 

not otherwise be available to the habitat 

absent the HCP. 

Currently, a collection of properties 

have been acquired as required by the 

HCP along the lower San Pedro and Gila 

River (Middle Gila/San Pedro 

Management Unit), and a single 

property along the Verde River (Verde 

Management Unit). Some of these 

properties were identified as essential 

habitat in the critical habitat proposal, 

but were proposed for exclusion under 

section 4(b)(2). In their comments on the 

proposed rule, SRP specifically 

requested that the mitigation properties 

identified in the proposal and others 

they acquired since publication of the 

proposal, that were part of the proposal, 

be included in the critical habitat 

designation. Therefore, due to the 

discretion of the Secretary under section 

4(b)(2) of the Act, and based upon the 

comments received from SRP, the 

mitigation properties acquired by SRP 

are included in the final designation as 

critical habitat. 

(1) Benefits of Inclusion 

We believe that there is minimal 

benefit from designating critical habitat 

for the southwestern willow flycatcher 

within the conservation space of 

Roosevelt Lake, because, as described 

below, the location is occupied by many 

southwestern willow flycatchers and 

therefore, its habitat is already under 

evaluation under section 7 of the Act, 

and operations of Roosevelt Dam 

(resulting in the periodic rise and fall of 

water across the land at the edges of the 

lake) is integral to the long-term 

persistence of flycatcher habitat at 

Roosevelt Lake. Therefore, while 

flycatcher habitat will vary in quality 

and quantity over time due to the 

different lake levels within the 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60937 

conservation space of Roosevelt Lake, it 

will persist. 

With respect to operations of 

Roosevelt Dam, we determined in our 

jeopardy analysis for our intra-Service 

section 7 consultation for issuance of 

the Roosevelt HCP permit that dam 

operations would not result in jeopardy 

to the southwestern willow flycatcher. 

As stated in our proposal, one of the 

primary conservation values of 

proposed critical habitat is to sustain 

existing populations. The threshold for 

reaching destruction or adverse 

modification at Roosevelt Lake would 

likely require a reduction in the 

capability of the habitat to sustain 

existing populations. It is likely that 

actions that would reduce the capability 

of the habitat to sustain a population 

would also jeopardize the continued 

existence of the species. Because of the 

importance of the conservation space at 

Roosevelt Lake plays for water storage, 

there is no reasonable reason to believe 

that there would be any development or 

change that would result in this piece of 

land being unavailable for riparian 

vegetation. This is because the dam 

operates in a way that continues moves 

water out of the reservoir to downstream 

lakes and canals. Thus, dam operators 

are continuously in the process of 

creating conservation space at Roosevelt 

Lake, and therefore, places for riparian 

vegetation (i.e., flycatcher habitat) to 

grow. Constant lake levels, which are 

not the desired condition at Roosevelt 

Lake, will not result in the creation of 

the hundreds of acres of flycatcher 

habitat that occurred between 1995 and 

2004. On the contrary, dynamic lake 

levels (like Roosevelt Dam is operated), 

similar to river systems, are important 

for the creation and maintenance of 

abundant southwestern willow 

flycatcher habitat at this location. 

The threshold for reaching 

destruction or adverse modification of 

critical habitat at Roosevelt Lake would 

likely require a reduction in the 

capability of the habitat to sustain 

existing populations. It is likely that 

actions that would reduce the capability 

of the habitat to sustain a population 

would also jeopardize the continued 

existence of the species. We concluded 

in our intra-Service opinion for issuance 

of Roosevelt Dam HCP permit, that dam 

operations would sustain populations 

over time (and similar to all flycatcher 

locations are subject to disturbances 

such as flooding and drought and an 

increase and decrease in populations), 

and therefore, would not jeopardize the 

flycatcher. Therefore, the outcome of 

consultation under section 7 of the Act 

on Roosevelt Lake Dam operations with 

critical habitat designated would not 

likely be materially different compared 

to the listing of the species alone. 

Similarly, we concluded in our 4(b)(8) 

determination in the proposed and final 

rules that dam operations, like those of 

Roosevelt Lake, would not result in 

adverse modification of critical habitat, 

because normal operations resulted in 

conditions that allows flycatcher habitat 

to persist over time. 

However, dam operations are not the 

only possible impact to flycatcher 

habitat at Roosevelt Lake, once water 

recedes and uncovers the ground where 

flycatcher habitat can grow; the Forest 

Service is the land manager. Livestock 

grazing and recreation, two activities 

that occur in and around Roosevelt 

Lake, have the ability to adversely affect 

critical habitat. These activities have 

previously occurred in the dry 

conservation space of the lake. But since 

the mid-1990s, the Tonto National 

Forest has prevented grazing from the 

lake bottom and fenced habitat to limit 

the effects of recreation and adjacent 

trespass cattle. Through the Roosevelt 

HCP, a Forest Protection Officer has 

been hired in order to help monitor and 

regulate unauthorized activities that 

could affect flycatcher habitat. 

Therefore, there is existing management 

by the Forest Service and additional 

protections through the HCP to protect 

the development, growth, and 

maintenance of flycatcher habitat from 

unauthorized activities. 

The draft environmental assessment 

found that minor changes in livestock 

grazing or recreation through section 7 

consultations, due to a critical habitat 

designation, may occur in the form of 

additional discretionary conservation 

recommendations to reduce impacts to 

the primary constituent elements. If 

Roosevelt Lake was designated as 

critical habitat, there may be some 

benefit through consultation under the 

adverse modification standard for 

actions under the discretion of the 

Forest Service. But, since the location is 

currently occupied by breeding 

flycatchers, dispersing young-of-the year 

flycatchers, migrating, foraging, and 

non-breeding flycatchers; habitat is 

already considered in consultations 

under section 7 of the Act and current 

management emphasizes habitat growth 

and persistence. For these reasons and 

because formal consultations will likely 

result in only discretionary conservation 

recommendations due to existing 

appropriate management, we believe 

there is an extremely low probability of 

mandatory elements (i.e., reasonable 

and prudent alternatives) arising from 

formal section 7 consultations that 

include consideration of designated 

critical habitat for the southwestern 

willow flycatcher at Roosevelt Lake. 

We believe that there would be little 

educational and informational benefit 

gained from including Roosevelt Lake 

within the designation, because this 

area was included in the proposed rule 

as essential habitat, is discussed in this 

final rule, and has been the focus of 

flycatcher research and water storage 

issues since the mid-1990s. 

Consequently, we believe that the 

informational benefits are already 

provided even though this area is not 

designated as critical habitat. 

Additionally, the importance of 

Roosevelt Lake for conservation of the 

flycatcher, its importance to the 

Roosevelt Management Unit, and to the 

population of flycatchers in the state of 

Arizona has already been realized by 

managing agencies, including the 

public, State and local governments, 

and Federal agencies. 

(2) Benefits of Exclusion 

A benefit of excluding Roosevelt Lake 

from critical habitat includes some 

reduction in administrative costs 

associated with engaging in the critical 

habitat portion of section 7 

consultations. Administrative costs 

include time spent in meetings, 

preparing letters and biological 

assessments, and in the case of formal 

consultations, the development of the 

critical habitat component of a 

biological opinion. However, because 

the flycatcher occupies the margins of 

Roosevelt Lake, consultations are 

expected to occur regardless of a critical 

habitat designation, and those costs to 

perform the additional analysis are not 

expected to be significant. 

The Roosevelt HCP and exclusion 

from critical habitat can also facilitate 

other cooperative conservation activities 

with other similarly situated dam 

operators or landowners. Continued 

cooperative relations with SRP and its 

stakeholders is expected to influence 

other future partners and lead to greater 

conservation than would be achieved 

through multiple site-by-site, project-byproject, section 7 consultations. The 

benefits of excluding lands within the 

Roosevelt Lake HCP area from critical 

habitat designation include recognizing 

the value of conservation benefits 

associated with HCP actions; 

encouraging actions that benefit 

multiple species; encouraging local 

participation in development of new 

HCPs; and facilitating the cooperative 

activities provided by the Service to 

landowners, communities, and counties 

in return for their voluntary adoption of 

the HCP. 

60938 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

The Roosevelt HCP has and will 

continue to help generate important 

status and trend information for 

flycatcher recovery. In addition to 

specific flycatcher conservation actions, 

the development and implementation of 

this HCP provides regular monitoring of 

flycatcher habitat, distribution, and 

abundance over the 50 year permit. 

Failure to exclude Roosevelt Lake 

could be a disincentive for other entities 

contemplating partnerships as it would 

be perceived as a way for the Service to 

impose additional regulatory burdens 

once conservation strategies have 

already been agreed to. Private entities 

are motivated to work with the Service 

collaboratively to develop voluntary 

HCPs because of the regulatory certainty 

provided by an incidental take permit 

under section 10(a)(1)(B) of the Act with 

the ‘‘No Surprises’’ assurances. This 

collaboration often provides greater 

conservation benefits than could be 

achieved through strictly regulatory 

approaches, such as critical habitat 

designation. The conservation benefits 

resulting from this collaborative 

approach are built upon a foundation of 

mutual trust and understanding. It takes 

considerable time and effort to establish 

this foundation of mutual trust and 

understanding which is one reason it 

often takes several years to develop a 

successful HCP. Excluding this area 

from critical habitat would help 

promote and honor that trust by 

providing greater certainty for 

permittees that once appropriate 

conservation measures have been agreed 

to and consulted on for the 

southwestern willow flycatcher that 

additional consultation will not be 

necessary. 

HCP permittees and stakeholders have 

submitted comments and spoke during 

public hearings discussing that they 

view critical habitat designation at 

Roosevelt Lake as unwarranted and an 

unwelcome intrusion to the operation of 

Roosevelt Dam, and an erosion of the 

regulatory certainty that is provided by 

their incidental take permit and the ‘‘No 

Surprises’’ assurances. We received 

other public comments disapproving of 

our identification of the conservation 

space of Roosevelt Lake as essential 

habitat, believing designation of critical 

habitat at Roosevelt Lake would limit 

fishing, camping, water storage, etc. 

There is a concern by SRP and 

stakeholders that designation of critical 

habitat at Roosevelt Lake has the 

potential to threaten the storage and 

delivery of water to the greater Phoenix 

metropolitan area (as described in the 

Economic Analysis). Should this ever 

come to pass, the results could be 

significant, however we do not believe 

that scenario is reasonably foreseeable 

(see discussion above). Having 

applicant’s understand the Service’s 

commitment will encourage continued 

partnerships with these permittees that 

could result in additional conservation 

plans or additional lands enrolled in 

HCPs. 

A related benefit of excluding lands 

within this HCP is the continued ability 

by the Service to seek new partnerships. 

Permittees who trust and benefit from 

the HCP process discuss the benefits 

with others who may become future 

HCP participants, such as States, 

counties, local jurisdictions, 

conservation organizations, and private 

landowners. New HCPs would result in 

implementation of conservation actions 

that we would be unable to accomplish 

otherwise. By excluding areas covered 

by HCPs from critical habitat 

designation, we preserve these 

partnerships and promote more effective 

conservation actions in the future. 

Our collaborative relationships with 

the Roosevelt Lake HCP permittees 

clearly make a difference in our 

partnership with the numerous 

stakeholders involved and influence our 

ability to form partnerships with others. 

Concerns over perceived added 

regulation potentially imposed by 

critical habitat harms this collaborative 

relationship by leading to distrust. Our 

experience has demonstrated that 

successful completion of one HCP has 

resulted in the development of other 

conservation efforts and HCPs with 

other landowners. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, we find that the benefits 

of designating critical habitat for the 

southwestern willow flycatcher at 

Roosevelt Lake are relatively small in 

comparison to the benefits of exclusion. 

We find that including Roosevelt Lake 

would result in very minimal, if any 

additional benefits to the southwestern 

willow flycatcher, as explained above. 

In making this finding, we have 

weighed the benefits of including these 

lands as critical habitat with an 

operative HCP and management by the 

Forest Service, and without critical 

habitat. Excluding Roosevelt Lake 

would eliminate some additional 

administrative effort and cost during the 

consultation process pursuant to section 

7 of the Act. Excluding Roosevelt Lake 

would continue to help foster 

development of future HCPs and 

strengthen our relationship with 

Roosevelt HCP permittees and 

stakeholders. Roosevelt Dam operations 

will continue to foster the maintenance, 

development, and necessary recycling of 

habitat for the flycatcher in the longterm due to the dynamic nature of water 

storage and delivery. Forest Service 

management fosters the presence of 

flycatcher habitat, and there is virtually 

no risk of development within the 

conservation space of Roosevelt Lake. 

Excluding Roosevelt Lake eliminates 

regulatory uncertainty associated with 

the permittees HCP, and any possible 

risk to water storage and delivery to the 

greater Phoenix metropolitan area. We 

have concluded that the benefits of the 

Roosevelt Dam operations underneath 

the coverage of the Roosevelt HCP and 

Forest Service management outweigh 

those that would result from the 

designation. We have therefore 

excluded these lands from the final 

critical habitat designation pursuant to 

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

We also find that the exclusion of 

these lands will not lead to the 

extinction of the species, nor hinder its 

recovery because the operation of 

Roosevelt Dam, maintenance of the 

conservation space of the lake, and 

Forest Service management will ensure 

the long-term persistence and protection 

of flycatcher habitat at Roosevelt Lake. 

We determined in our intra-Service 

section 7 biological opinion for the 

issuance of the Roosevelt HCP permit 

that operations would not result in 

jeopardy. Our 4(b)(8) determination in 

this proposal indicated that we did not 

believe dam operations, like Roosevelt 

Dam, would result in adverse 

modification. We determined that while 

incidental take will occur, and habitat 

will fluctuate in its abundance and 

quality, reservoir operations resulting in 

a dynamic environment were necessary 

for the long-term persistence of habitat. 

It was 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 best case scenario and 

average estimated amount of available 

habitat can far surpasses the amount 

needed to support the 50 territory 

numerical goal recommended in the 

Recovery Plan (USFWS 2002). 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60939 

Hoover to Parker, Parker to Southerly 

International Border, and Middle 

Colorado Management Units, CA/AZ/ 

NV 

Lower Colorado River Multi-Species 

Conservation Plan (LCR MSCP) 

The LCR MSCP was developed for 

areas along the lower Colorado River 

along the borders of AZ, CA, and NV 

from the conservation space of Lake 

Mead to Mexico, in the Counties of La 

Paz, Mohave, and Yuma in AZ; 

Imperial, Riverside, and San Bernardino 

Counties in CA, and Clark County in 

NV. The LCR MSCP primarily covers 

activities associated with water storage, 

delivery, diversion, and hydroelectric 

production. The Record of Decision was 

signed by the Secretary of Interior on 

April 2, 2005. Discussions began on the 

development of this HCP in 1994, but an 

important catalyst was a 1997 jeopardy 

biological opinion for the southwestern 

willow flycatcher issued to the Bureau 

of Reclamation for lower Colorado River 

operations (USFWS 1997). 

The Federal agencies involved in the 

LCR MSCP include the Bureau of 

Reclamation, Bureau of Indian Affairs, 

National Park Service, Bureau of Land 

Management, Western Area Power 

Administration, and U.S. Fish and 

Wildlife Service. The permittees 

covered in AZ are: The Arizona 

Department of Water Resources; Arizona 

Electric Power Cooperative Inc.; Arizona 

Game and Fish Department; Arizona 

Power Authority; Central Arizona Water 

Conservation District; Cibola Valley 

Irrigation and Drainage District; City of 

Bullhead City; City of Lake Havasu City; 

City of Mesa; City of Somerton; City of 

Yuma; Electrical District No. 3, Pinal 

County, Arizona; Golden Shores Water 

Conservation District; Mohave County 

Water Authority; Mohave Valley 

Irrigation and Drainage District; Mohave 

Water Conservation District, North Gila 

Valley Irrigation and Drainage District; 

Salt River Project Agricultural 

Improvement and Power District; Town 

of Fredonia; Town of Thatcher; Town of 

Wickenburg; Unit ‘‘B’’ Irrigation and 

Drainage District; Wellton-Mohawk 

Irrigation and Drainage District; Yuma 

County Water Users’ Association; Yuma 

Irrigation District; and Yuma Mesa 

Irrigation and Drainage District. The 

permittees covered in CA are: The City 

of Needles, the Coachella Valley Water 

District, the Colorado River Board of 

California, the Imperial Irrigation 

District, the Los Angeles Department of 

Water and Power, the Palo Verde 

Irrigation District, the San Diego County 

Water Authority, the Southern 

California Edison Company, the 

Southern California Public Power 

Authority, Bard Water District, and The 

Metropolitan Water District of Southern 

California. The permittees covered in 

NV are: The Colorado River Commission 

of Nevada, the Nevada Department of 

Wildlife, Basic Water Company, and the 

Southern Nevada Water Authority. 

The Southwestern Willow Flycatcher 

Management Units primarily 

encompassed in the LCR MSCP are the 

Hoover to Parker and Parker to 

Southerly International Border 

Management units. Streams in the 

Middle Colorado (Colorado River/Lake 

Mead), Virgin (Virgin River), and 

Pahranagat (Muddy River) Management 

units in AZ, UT, and NV, are briefly 

represented where they surround Lake 

Mead (including the conservation space 

of Lake Mead which extends up the 

Colorado River to Separation Canyon). 

The southwestern willow flycatcher is a 

key species in the LCR MSCP where the 

permittees will create and maintain 

1,639 ha (4,050 ac) of flycatcher habitat 

over the 50-year life of the permit (2005 

to 2055). Additional research, 

management, monitoring, and 

protection of flycatchers and flycatcher 

habitat will occur from fire, nest 

predators, and brood parasites. The 

development of flycatcher habitat will 

occur specifically throughout the 

Hoover to Parker and Parker to 

Southerly International Border 

Management units, and is expected to 

meet conservation goals of the 

flycatcher identified in the Recovery 

Plan by increasing numbers of territories 

in appropriate Management Units. 

Management and tasks associated with 

the HCP will result in improving and 

maintaining essential migration 

stopover habitat, improving metapopulation stability, and reducing the 

risk of catastrophic losses due to fire. In 

addition to creation and subsequent 

management of flycatcher habitats, 

provision is made in the LCR MSCP to 

provide funds to ensure the 

maintenance of existing flycatcher 

habitats within the Management Units. 

The LCR MSCP will also cover 26 

species, including 5 more federally 

listed animals: Yuma clapper rail 

(Rallus longirostris yumanensis), Desert 

Tortoise (Gopherus agassizii), razorback 

sucker (Xyrauchen texanus), bonytail 

(Gila elegans), humpback chub (Gila 

cypha). 

As a result of the development of the 

LCR MSCP, and in conjunction with 

(see Relationship of Critical Habitat to 

National Wildlife Refuge Management 

Plans—Exclusions Under Section 4(b)(2) 

of the Act, and Relationship of Critical 

Habitat to Tribal Management Plans—

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

Act sections below) Southwestern 

Willow Flycatcher Tribal Management 

Plans and conservation of southwestern 

willow flycatcher habitat on National 

Wildlife Refuges (NWR) along the Lower 

Colorado River, there is significant 

conservation of existing flycatcher 

habitat and development of new 

flycatcher habitat throughout the length 

of the LCR MSCP planning area (Lake 

Mead to Mexico). The LCR MSCP and 

management of NWR and Tribal Lands 

will result in thousands of acres of 

restored, protected, and managed 

flycatcher habitat for nesting, migrating, 

foraging, territorial, non-breeding, and 

dispersing birds capable of reaching 

conservation goals established in the 

Recovery Plan. As a result of the 

assurances and protections provided the 

southwestern willow flycatcher and its 

habitat, we are excluding the length of 

the Lower Colorado River from the 

conservation space of Lake Mead (which 

extends up to Separation Canyon) 

downstream to the Southerly 

International Border from designation as 

flycatcher critical habitat. 

(1) Benefits of Inclusion 

We believe that there is minimal 

benefit from designating critical habitat 

for the southwestern willow flycatcher 

along the length of the lower Colorado 

River from Lake Mead to Mexico, 

because as described above, the LCR 

MSCP commits to developing, 

managing, and protecting thousands of 

acres of flycatcher habitat. Additionally, 

over a thousand acres of riparian habitat 

that can be used by flycatchers will 

collectively be restored, managed, and 

maintained on NWRs (Havasu, Cibola, 

and Imperial) and Tribal Lands 

(Hualapai, Colorado River, Chemehuevi, 

Fort Mohave, and Quechan—Fort 

Yuma) along the lower Colorado River 

within the area covered by the LCR 

MSCP. The culmination of these efforts 

is anticipated to surpass recovery goals 

recommended in the Recovery Plan; 

maintain, develop and improve 

migration, dispersal, sheltering, and 

foraging habitat; develop 

metapopulation stability; and protect 

against catastrophic losses. 

Under section 7, critical habitat 

designation will provide little 

additional benefit to the southwestern 

willow flycatcher within the boundaries 

of the LCR MSCP. The catalyst for the 

LCR MSCP was largely a result of a 

jeopardy biological opinion (USFWS 

1997) for the southwestern willow 

flycatcher to the Bureau of Reclamation 

for its lower Colorado River operations. 

As a result, the LCR MSCP and its 

Implementing Agreement are designed 

to ensure the conservation of the 

flycatcher within the plan area and 

60940 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

include management measures to 

protect, restore, enhance, manage, and 

monitor habitat to benefit the 

conservation of flycatcher. The 

adequacy of plan measures to protect 

the flycatcher and its habitat has 

undergone thorough evaluation in the 

section 7 consultations completed prior 

to approval of the plans, and therefore, 

the benefit of including these areas to 

require section 7 consultation for 

critical habitat is negated. 

This HCP involved public 

participation through public notices and 

comment periods associated with the 

NEPA process prior to being approved. 

Additionally, this HCP is one of the 

largest HCPs in the country, with an 

immense list of stakeholders and 

permittees from CA, AZ, and NV that 

took about a decade to complete. 

Therefore, managing agencies, States, 

counties, cities, and other stakeholders 

are aware of the importance of the lower 

Colorado River for the southwestern 

willow flycatcher. For these reasons, we 

believe that designation of critical 

habitat would provide little additional 

educational benefit the area covered by 

this approved HCP. Federal actions that 

may affect the flycatcher will still 

require consultation under section 7 of 

the Act. 

With respect to lower Colorado River 

operations covered under the LCR 

MSCP, we determined in our jeopardy 

analysis for our intra-Service section 7 

consultation for issuance of the HCP 

permit that operations with the 

included protections, mitigation and 

management would not result in 

jeopardy to the southwestern willow 

flycatcher. As stated in our proposal, 

one of the primary conservation values 

of proposed critical habitat is to sustain 

existing populations. The threshold for 

reaching destruction or adverse 

modification along the Lower Colorado 

River would likely require a reduction 

in the capability of the habitat to sustain 

existing populations. It is likely that 

actions that would reduce the capability 

of the habitat to sustain a population 

would also jeopardize the continued 

existence of the species. Because of the 

development, restoration, and 

protection of riparian habitat attributed 

to the LCR MSCP, NWRs, and Tribes, 

flycatcher habitat will be more 

abundant, more widespread, and of 

higher quality than conditions today 

and the recent past. 

Covered activities under the LCR 

MSCP are not the only possible impacts 

to flycatcher habitat along the Lower 

Colorado River. There are continued 

projects developed, carried out, funded, 

and permitted by Federal agencies such 

as Bureau of Reclamation and Bureau of 

Land Management that are not covered 

by the LCR MSCP. Fire management, 

restoration, recreation, and other 

activities have the ability to adversely 

affect the flycatcher and critical habitat. 

The draft environmental assessment for 

this proposed rule found that minor 

changes in restoration, fire management, 

and recreation could occur as result of 

a critical habitat designation in the form 

of additional discretionary conservation 

recommendations to reduce impacts to 

the primary constituent elements. 

Therefore, if the lower Colorado River 

was designated as critical habitat, there 

may be some benefit through 

consultation under the adverse 

modification standard for actions not 

covered by the LCR MSCP. But, since 

the proposed river segments are 

occupied by breeding flycatchers, 

dispersing young-of-the year flycatchers, 

migrating, foraging, and non-breeding 

flycatchers; habitat is already 

considered in consultations under 

section 7 of the Act. For these reasons 

and because formal consultations will 

likely result in only discretionary 

conservation recommendations due to 

existing restoration and management 

efforts along the length of the Lower 

Colorado River due to the LCR MSCP 

and restoration and management 

occurring on NWRs and Tribal Lands, 

we believe there is a low probability of 

mandatory elements (i.e., reasonable 

and prudent alternatives) arising from 

formal section 7 consultations that 

include consideration of designated 

critical habitat for the southwestern 

willow flycatcher along the Lower 

Colorado River from Lake Mead to 

Mexico. 

(2) Benefits of Exclusion 

A benefit of excluding the lower 

Colorado River from critical habitat 

includes some reduction in 

administrative costs associated with 

engaging in the critical habitat portion 

of section 7 consultations. 

Administrative costs include time spent 

in meetings, preparing letters and 

biological assessments, and in the case 

of formal consultations, the 

development of the critical habitat 

component of a biological opinion. 

However, because the flycatcher 

occupies the lower Colorado River for a 

variety of life history needs, 

consultations are expected to occur 

regardless of a critical habitat 

designation, and those costs to perform 

the additional analysis are not expected 

to be significant. 

The exclusion of the lower Colorado 

River from critical habitat as a result of 

the LCR MSCP can help facilitate other 

cooperative conservation activities with 

other similarly situated dam operators 

or landowners. Continued cooperative 

relations with the three states and 

myriad of stakeholders is expected to 

influence other future partners and lead 

to greater conservation than would be 

achieved through multiple site-by-site, 

project-by-project efforts, and associated 

section 7 consultations. The benefits of 

excluding lands within the LCR MSCP 

plan area from critical habitat 

designation include recognizing the 

value of conservation benefits 

associated with HCP actions; 

encouraging actions that benefit 

multiple species; encouraging local 

participation in development of new 

HCPs; and facilitating the cooperative 

activities provided by the Service to 

landowners, communities, and counties 

in return for their voluntary adoption of 

the HCP. 

The LCR MSCP will also help 

generate important status and trend 

information for flycatcher recovery. In 

addition to specific flycatcher 

conservation actions, the development 

and implementation of this HCP 

provides regular monitoring of 

flycatcher habitat, distribution, and 

abundance over the 50-year permit. 

Failure to exclude the lower Colorado 

River covered under the LCR MSCP 

could be a disincentive for other entities 

contemplating partnerships as it would 

be perceived as a way for the Service to 

impose additional regulatory burdens 

once conservation strategies have 

already been agreed to. Private entities 

are motivated to work with the Service 

collaboratively to develop voluntary 

HCPs because of the regulatory certainty 

provided by an incidental take permit 

under section 10(a)(1)(B) of the Act with 

the No Surprises Assurances. This 

collaboration often provides greater 

conservation benefits than could be 

achieved through strictly regulatory 

approaches, such as critical habitat 

designation. The conservation benefits 

resulting from this collaborative 

approach are built upon a foundation of 

mutual trust and understanding. It has 

taken considerable time and effort to 

establish this foundation of mutual trust 

and understanding which is one reason 

it often takes several years to develop a 

successful HCP. Excluding this area 

from critical habitat would help 

promote and honor that trust by 

providing greater certainty for 

permittees that once appropriate 

conservation measures have been agreed 

to and consulted on for listed and 

sensitive species additional consultation 

will not be necessary. 

HCP permittees and stakeholders 

submitted comments and spoke during 

public hearings discussing that they 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60941 

view critical habitat designation along 

the lower Colorado River as 

unwarranted and an unwelcome 

intrusion to river operations, and an 

erosion of the regulatory certainty that 

is provided by their incidental take 

permit and the No Surprises assurances. 

There is a concern by agencies and 

stakeholders that designation of critical 

habitat along the lower Colorado River 

has the potential to threaten the storage, 

delivery, and diversion of water and 

hydroelectric production for AZ, CA, 

and NV. Should this ever come to pass, 

the economic results would be the most 

significant throughout the bird’s range 

(see Economic Analysis), however we 

do not believe this scenario is 

reasonably foreseeable (see discussion 

above). Having applicants understand 

the Service’s commitment will 

encourage continued partnerships with 

these permittees that could result in 

additional conservation plans or 

additional lands enrolled in HCPs. 

Our collaborative relationships with 

the LCR MSCP permittees clearly make 

a difference in our partnership with the 

numerous stakeholders involved and 

influence our ability to form 

partnerships with others. Concerns over 

perceived added regulation potentially 

imposed by critical habitat harms this 

collaborative relationship by leading to 

distrust. Our experience has 

demonstrated that successful 

completion of one HCP has resulted in 

the development of other conservation 

efforts and HCPs with other landowners. 

The benefits of excluding this HCP 

from critical habitat designation include 

relieving Federal agencies, State 

agencies, landowners, communities, and 

counties of any additional regulatory 

burden that might be imposed by 

critical habitat. This HCP took many 

years to develop and, upon completion, 

became a river long conservation plan 

that is consistent with the recovery 

objectives for the flycatcher within the 

plan area. Additionally, this HCP 

provides conservation benefits to 20 

unlisted sensitive species. Imposing an 

additional regulatory review after the 

HCP is completed solely as a result of 

the designation of critical habitat may 

undermine conservation efforts and 

partnerships in many areas. In fact, it 

could result in the loss of species’

benefits if future participants abandon 

the voluntary HCP process. Designation 

of critical habitat along the lower 

Colorado River could be viewed as a 

disincentive to those entities currently 

developing HCPs or contemplating them 

in the future. The benefit of excluding 

the lower Colorado River within the 

approved LCR MSCP from critical 

habitat outweighs the benefits of its 

inclusion. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, we find that the benefits 

of designating critical habitat for the 

southwestern willow flycatcher along 

the Lower Colorado River (Lake Mead to 

Mexico) are relatively small in 

comparison to the benefits of exclusion. 

We find that including the Lower 

Colorado River would result in very 

minimal, if any additional benefits to 

the southwestern willow flycatcher, as 

explained above. In making this finding, 

we have weighed the benefits of 

including these lands as critical habitat 

with an operative HCP and management 

by NWRs and Tribal Lands, and without 

critical habitat. Excluding the Lower 

Colorado River would eliminate some 

additional administrative effort and cost 

during the consultation process 

pursuant to section 7 of the Act. 

Excluding the Lower Colorado River 

would continue to help foster 

development of future HCPs and 

strengthen our relationship with AZ, 

CA, and NV permittees and 

stakeholders. Excluding the Lower 

Colorado River eliminates regulatory 

uncertainty associated with permittees 

and stakeholders. Excluding the lower 

Colorado River eliminates any possible 

risk to water storage, delivery, diversion 

and hydroelectric production to AZ, 

NV, and CA, and therefore significant 

potential economic costs due to a 

critical habitat designation. We have 

therefore concluded that the benefits to 

the flycatcher and its habitat as a result 

of the restoration, maintenance, and 

management activities attributed to the 

LCR MSCP, NWR and Tribes outweigh 

those that would result from the 

addition of a critical habitat designation. 

We have therefore excluded these lands 

from the final critical habitat 

designation pursuant to section 4(b)(2) 

of the Act. 

We also find that the exclusion of the 

lower Colorado River from Lake Mead to 

Mexico (Southerly International Border) 

will not lead to the extinction of the 

subspecies, nor hinder its recovery, 

because restoration, maintenance, and 

management of southwestern willow 

flycatcher habitat due to the LCR MSCP, 

and by NWRs and Tribes will ensure the 

long-term persistence and protection of 

flycatcher habitat along the lower 

Colorado River. The LCR MSCP 

provides for a greater conservation 

benefit to the flycatcher than 

consultations pursuant to section 7 of 

the Act because this HCP assures the 

long-term protection and management 

of a flycatcher habitat, and funding for 

this management. 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. We 

determined in our intra-Service section 

7 biological opinion for the issuance of 

the LCR MSCP permit that the lower 

Colorado River operations would not 

result in jeopardy. The southwestern 

willow flycatcher is a key species in the 

LCR MSCP where the permittees will 

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

of flycatcher habitat over the 50-year life 

of the permit (2005 to 2055). As a result 

of appropriate placement of flycatcher 

habitat developed through the LCR 

MSCP along with the restoration, 

management and maintenance of 

flycatcher habitat on NWRs and Tribes, 

we expect to meet and possibly surpass 

the 50 territory goal for the Hoover to 

Parker Management Unit, and 150 

territory goal for the Parker to Southerly 

International Boundary Management 

Unit. We are therefore excluding the 

area covered under the LCR MSCP (Lake 

Mead to Southerly International Border) 

from critical habitat designation, 

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

we find that the benefits of exclusion 

exceed the benefits of inclusion, and 

exclusion would not result in extinction 

of the subspecies. 

Relationship of Critical Habitat to State 

and Federal Wildlife Conservation 

Areas—Exclusions Under Section 

4(b)(2) of the Act) 

State Wildlife Areas (SWA) 

Pahranagat Management Unit, NV 

Key Pittman State Wildlife Area 

The Key Pittman Wildlife Area is 

located in Lincoln County, NV, and 

contains a wide diversity of habitats 

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

Pahranagat River travels through portion 

of the Key Pittman Wildlife Area, 

including Nesbitt Lake, an impounded 

area along the river. The State of 

Nevada’s Department of Wildlife owns 

and manages this property. The Nevada 

Fish and Game Commission purchased 

portions of the area in 1962 and 1966, 

primarily for waterfowl hunting, and as 

a secondary goal, habitat for other 

wetland species. A draft management 

plan was completed in November 2003 

and provides the framework for the next 

10 years. The plan went through 

stakeholder meetings and public review. 

We determined that the entire stretch 

of the Pahranagat River, through this 

60942 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

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 from 1999 

to 2002, 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 it is 

being implemented. In addition, the 

area has been under management for 

wildlife since the 1960s with 

conservation efforts targeted towards 

waterfowl, wetland species, and 

specifically the southwestern willow 

flycatcher. As a result of the assurances 

and protections provided the 

southwestern willow flycatcher and its 

habitat on the Key Pittman State 

Wildlife Area, we are excluding this 

area from critical habitat. Our 4(b)(2) 

analysis is provided below. 

Pahranagat and Virgin Management 

Units, NV 

Overton State Wildlife Area 

The Overton Wildlife Area is located 

in Clark County, NV, and contains a 

wide diversity of habitats within its 

7,146 ha (17,657 ac). The Muddy River 

and Virgin River travel 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 stretches of 

the Muddy and Virgin rivers through 

the boundaries of the Overton Wildlife 

Area are 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 from 

1997 to 2002. 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. As a result of the assurances and 

protections provided the southwestern 

willow flycatcher and its habitat on the 

Overton Wildlife Area, we are excluding 

this area from critical habitat. Our 

4(b)(2) analysis is provided below. 

Bill Williams Management Unit, AZ 

Alamo Lake State Wildlife Area 

The Alamo State Wildlife Area (AWA) 

in La Paz and Mohave counties was 

created under provisions of the Fish and 

Wildlife Coordination Act (16 U.S.C. 

661–66c), Public Land Order 492 (PLO 

492), and the General Plan agreement 

between the Secretary of the Army, 

Secretary of the Interior, and Director of 

AZ Game and Fish, signed January 19, 

1968 (Arizona Game and Fish 

Department-Arizona State Parks 1997). 

A lease agreement between the Arizona 

Game and Fish Department Commission 

and the U.S. Army Corps of Engineers 

was signed in 1970 establishing the 

AWA for fish and wildlife conservation 

and management purposes (Arizona 

Game and Fish Department—Arizona 

State Parks 1997). The present lease area 

encompasses approximately 9,140 ha 

(22,586 ac). Public input was solicited 

and addressed in development of the 

AWA Management Plan through 

scoping and the NEPA (Arizona Game 

and Fish Department—Arizona State 

Parks 1997). 

The AWA Management Plan describes 

the unique riparian, wetland, and 

aquatic aspects of the area for a variety 

of species, specifically identifying the 

southwestern willow flycatcher. As a 

result, two of the specific resources that 

management emphasizes are directed 

toward the habitat needs of the 

flycatcher: (1) Maintain and enhance 

aquatic and riparian habitats to benefit 

wildlife; and (2) restore, manage, and 

enhance habitats for wildlife of special 

concern. In order to accomplish this 

goal, no cattle grazing is allowed in the 

riparian areas on the upper end of 

Alamo Lake and the lower portions of 

the Santa Maria and Big Sandy Rivers. 

Also, recreation (i.e. off-road vehicles) is 

identified as important management 

objective. The number of territories at 

Alamo Lake within the AWA has varied 

annually between 4 and 32 territories 

from 1994 to 2003 (USGS 2004). 

We determined that the segments of 

the Big Sandy, Santa Maria, and Bill 

Williams Rivers at the upper end of 

Alamo Lake within the AWA are 

essential to the conservation of the 

southwestern willow flycatcher. The 

AWA has been in existence for over 30 

years under the management of Arizona 

Game and Fish Department. The AWA 

was developed for wildlife 

conservation. The current AWA 

Management Plan specifically 

emphasizes the importance of riparian 

habitat management for southwestern 

willow flycatchers. Management has 

fostered an increasing population, with 

the number of territories exceeding 20 

in all but one season since 1999. The 

AWAs goals are consistent with the 

habitat needs of the flycatcher. As a 

result of the assurances and protections 

provided the southwestern willow 

flycatcher and its habitat on the Alamo 

Wildlife Area, we are excluding this 

area from critical habitat. 

(1) Benefits of Inclusion 

We believe that there is minimal 

benefit from designating critical habitat 

for the southwestern willow flycatcher 

on these State Wildlife Areas because, 

as explained in detail above, these lands 

are already managed for the 

conservation of wildlife, including the 

southwestern willow flycatcher. 

Inclusion of lands as critical habitat 

can provide a benefit due to the 

improved educational aspect it provides 

land managers/owners. However, in this 

case, due to the conservation aspect of 

these lands specifically for wildlife and 

management there is an educational 

focus already being provided for 

southwestern willow flycatchers. In 

addition, these areas were identified as 

essential habitat for the southwestern 

willow flycatcher in our proposed rule. 

A critical habitat designation would not 

likely result in improved educational 

benefits beyond what is being provided. 

As stated in the draft environmental 

assessment, the primary conservation 

value of the proposed critical habitat 

segments is to sustain existing 

populations. The threshold for reaching 

destruction or adverse modification on 

SWAs would likely require a reduction 

in the capability of the habitat to sustain 

existing populations. It is likely that 

actions that would reduce the capability 

of the habitat to sustain a population 

would also jeopardize the continued 

existence of the species. Consequently, 

the outcome of the section 7 

consultations on SWAs may not be 

materially different with designation of 

critical habitat compared to the listing 

of the species alone. In addition, given 

that these lands are managed for the 

conservation of wildlife, and 

specifically have established measures 

for southwestern willow flycatchers, it 

is highly unlikely that the SWAs would 

consider undertaking any projects that 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60943 

would result in a long-term reduction of 

the capability of the habitat to sustain 

existing populations. To the contrary, 

activities occurring within SWAs are 

specifically for the benefit of wildlife, 

with management being conducted for 

the restoration, improvement, and 

protection of flycatcher habitat. 

As described above, all of SWA lands 

proposed for critical habitat may have 

additional conservation value above 

sustaining existing populations, because 

they are managing these lands to 

improve, protect, and expand upon the 

amount of nesting habitat that would 

provide for growth of existing 

populations. Expansion of existing 

populations in these areas would be an 

element of recovering the southwestern 

willow flycatcher. Accordingly, through 

section 7 consultations that may occur, 

some benefit may incur through the 

adverse modification standard and 

whether or not the activity results in a 

reduction in the suitability of the habitat 

to support expansion of existing 

populations. Therefore, because formal 

consultations will likely result in only 

discretionary conservation 

recommendations on these SWA lands, 

we believe there is an extremely low 

probability of mandatory elements (i.e., 

reasonable and prudent alternatives) 

arising from formal section 7 

consultations that include consideration 

of designated southwestern willow 

flycatcher critical habitat. 

The environmental assessment found 

that minor changes through section 7 

consultation may occur in the form of 

additional discretionary conservation 

recommendations to reduce impacts to 

the primary constituent elements. For 

activities that SWAs are anticipated to 

engage in, those are expected to 

primarily be projects focused on habitat 

restoration, protection, and fire 

management. No formal consultation for 

habitat restoration has occurred on 

SWAs. Both restoration and fire 

management activities were anticipated 

in the environmental assessment to 

possibly have short-term adverse 

impacts to PCEs, but long-term 

beneficial effects from protections and 

improvement of habitat quality, 

quantity, and persistence. However, as 

discussed above, consultations on these 

activities would be similar to existing 

conditions, where consultations already 

address potential affects to the 

southwestern willow flycatcher because 

these river segments are occupied by 

nesting and migrating southwestern 

willow flycatchers. The outcome of the 

section 7 consultations on these SWAs 

may not be materially different with 

designation of critical habitat compared 

to the listing of the species alone due to 

the threshold for reaching destruction or 

adverse modification on proposed 

critical habitat. Moreover, we note that 

while additional conservation 

recommendations may result for 

projects of this nature, they would be 

discretionary on the part of the Federal 

agency. 

(2) Benefits of Exclusion 

The benefits of excluding SWAs 

include a reduction in administrative 

costs associated with engaging in 

section 7 consultations for critical 

habitat. Administrative costs include 

additional time spent in meetings and 

preparing letters, and in the case of 

biological assessments and informal and 

formal consultations, the development 

of those portions of these documents 

that specifically address the critical 

habitat designation. SWA and FWS staff 

can, more appropriately, use these 

limited funds toward continuing to 

manage and improve SWA lands for 

their stated purpose, wildlife 

conservation (and southwestern willow 

flycatcher conservation). In the future, 

SWAs will likely engage in low effort 

informal section 7 consultations 

periodically, and less frequently formal 

consultations, to address impacts of 

activities on the southwestern willow 

flycatcher (primarily those associated 

with habitat restoration, protection, and 

fire management). Potential project 

modifications are likely to be minimal, 

given the beneficial nature of the SWA 

activities and projects. 

(3) Benefits of Exclusion Outweigh 

Benefits of Inclusion 

In summary, we believe that the 

benefits of excluding these SWAs from 

the designation of critical habitat for the 

southwestern willow flycatcher 

outweigh the benefits of including them 

in critical habitat. We find that 

including these SWAs would result in 

very minimal, if any additional benefits 

to the southwestern willow flycatcher, 

as explained above. Because these areas 

are being managed by SWA staff 

familiar with wildlife-related issues, 

there is no reason to believe that the 

designation would result in an 

increased education benefit to land 

managers. Including SWAs in the 

designation could require some 

additional administrative effort and cost 

during the section 7 consultation 

process. Although the additional effort 

to consider and analyze the affects of 

various projects on critical habitat may 

not be substantial, however, it would 

require the SWA to use limited 

additional resources that may otherwise 

be used towards beneficial projects for 

wildlife (and the southwestern willow 

flycatcher). 

We also find that the exclusion of 

these SWAs will not lead to the 

extinction of the southwestern willow 

flycatcher, nor hinder its recovery 

because these lands are specifically 

managed for the protection of wildlife 

and there is an emphasis at each SWA 

to protect and enhance habitat 

specifically for the southwestern willow 

flycatcher. 

Federal Wildlife Conservation Areas 

Kern Management Unit, CA 

Sprague Ranch 

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

to consider other relevant impacts, in 

addition to economic impacts, of 

designating critical habitat. The Sprague 

Ranch included in the Kern 

Management Unit warrants exclusion 

from the final designation of critical 

habitat under section 4(b)(2) of the Act 

because we have determined that the 

benefits of excluding Sprague Ranch 

from southwestern willow flycatcher 

critical habitat designation will 

outweigh the benefits of including it in 

the final designation based on the longterm protections afforded for 

southwestern willow flycatcher habitat. 

The following represents our rationale 

for excluding the Sprague Ranch from 

the final designated critical habitat for 

the southwestern willow flycatcher in 

the Kern Management Unit. 

The Sprague Ranch is an 

approximately 1,003 ha (2,479 ac) parcel 

which includes approximately 395 ha 

(975 ac) of floodplain located along the 

south fork of the Kern River. The 

Sprague Ranch was purchased by the 

U.S. Army Corps of Engineers (Corps) as 

a result of biological opinions for the 

long-term operation of Lake Isabella 

Dam and Reservoir (Service File Nos. 1–

1–96–F–27; 1–1–99–F–216; and 1–1–

05–F–0067) specifically to provide 

habitat and conservation for the 

southwestern willow flycatcher. During 

the periods of time flycatcher habitat is 

not available as a result of short-term 

inundation from Isabella Dam 

operations, habitat at the Sprague Ranch 

is expected to provide habitat for the 

flycatcher. The dominant vegetation in 

the Kern Management Unit is mature 

willows (Salix sp.) and Fremont 

cottonwood. Other plant communities 

of the Kern Management Unit include 

open water, wet meadow, and riparian 

uplands. 

As a result of the expertise of the 

National Audubon Society (Audubon) 

and the California Department of Fish 

and Game (CDFG) in management of 

flycatcher habitat on adjacent and 

60944 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

nearby properties along the Kern River, 

management of the Sprague Ranch is a 

joint venture between these two parties 

and the Corps. The Sprague Ranch is 

located immediately north and adjacent 

to the Kern River Preserve (KRP), which 

is owned and operated by Audubon, 

and shares a common border with the 

KRP of over 4.8 km (3 mi). The CDFG 

manages the Canebrake Preserve located 

upstream of the critical habitat 

designation. 

The southwestern willow flycatcher 

occurs throughout the Kern 

Management Unit, which includes 

portions of the Sprague Ranch. The 

Sprague Ranch contains existing 

riparian forest that can support and 

maintain nesting territories and 

migrating and dispersing southwestern 

willow flycatcher. But other portions of 

the Ranch are believed to require 

restoration and management in order 

become nesting flycatcher habitat. 

Activities such as cowbird trapping, 

exotic vegetation control, and native 

tree plantings are other management 

activities expected to occur. The Ranch 

is currently being managed in 

accordance with the terms and 

conditions of the biological opinions 

(cited above) specifically for the benefit 

of the southwestern willow flycatcher. 

(1) Benefits of Inclusion 

We believe that there is minimal 

benefit from designating critical habitat 

for the southwestern willow flycatcher 

within the Sprague Ranch because, as 

explained above, these lands are already 

managed for the conservation of 

flycatcher. 

As stated in the environmental 

assessment, the primary conservation 

value of the proposed critical habitat 

segments is to sustain existing 

populations. The threshold for reaching 

destruction or adverse modification on 

the Sprague Ranch property would 

likely require a reduction in the 

capability of the habitat to sustain 

existing populations. Given that these 

lands are managed specifically for the 

benefit of the flycatcher, it is highly 

unlikely that projects would be 

considered that would result in a 

depreciable diminishment or long-term 

reduction of the capability of the habitat 

to sustain existing populations. To the 

contrary, activities occurring on these 

lands will provide benefits to the 

flycatcher by restoring, improving, and 

protecting its habitat. 

As described above, the Sprague 

Ranch may have additional 

conservation value above sustaining 

existing populations, because it is being 

managed to not only maintain existing 

habitat, but also to improve, protect, and 

possibly expand upon the amount of 

nesting habitat that would provide for 

growth of existing populations. 

Expansion of existing populations in 

these areas would be an element of 

recovering the southwestern willow 

flycatcher. Accordingly, and as further 

discussed above in the ‘‘General 

Principles of Section 7 Consultations 

Used in the 4(b)(2) Balancing Process’’

section, through section 7 consultations 

that may occur, some benefit may incur 

through the adverse modification 

standard and whether or not a proposed 

activity results in a reduction in the 

suitability of the habitat to support 

expansion of existing populations. 

However, because formal consultations 

will likely result in only discretionary 

conservation recommendations (i.e., 

adverse modification threshold is not 

likely to be reached), we believe there 

is an extremely low probability of 

mandatory elements (i.e., reasonable 

and prudent alternatives) arising from 

formal section 7 consultations that 

include consideration of designated 

southwestern willow flycatcher critical 

habitat. As mentioned above, this 

property was purchased specifically for 

the southwestern willow flycatcher, 

therefore, we do not believe it is likely 

that actions will be proposed that would 

be counter to the purpose of this habitat 

and result in adverse modification, 

using a conservation standard based on 

the Ninth Circuit Court’s decision in 

Gifford Pinchot. 

We believe the conservation measures 

for the flycatcher that are occurring or 

will be used in the future on the 

Sprague Ranch (i.e., demographic 

surveys, cowbird trapping, non-native 

vegetation removal, livestock exclusion, 

hydrologic restoration, planting of 

native vegetation, monitoring, and 

reporting) provide as much, and 

possibly more benefit than would be 

achieved through section 7 

consultations involving consideration of 

critical habitat. This is because 

management that is occurring or that is 

planning to occur will be the same 

activities which would be implemented 

in order to maintain or restore flycatcher 

habitat. 

As discussed in the ‘‘Educational 

Benefits of Critical Habitat’’ section 

above, we believe that there would be 

little additional informational benefit 

gained from including these portions of 

the Sprague Ranch within the 

designation because this area was 

included in the proposed rule as having 

essential flycatcher habitat. Further, the 

Kern River in this area was previously 

designated as critical habitat, numerous 

public meetings and hearings have 

occurred in Lake Isabella concerning the 

flycatcher and the designation of its 

critical habitat, and the population of 

flycatchers along the Kern River is one 

of the most studied throughout the 

subspecies range due to its proximity to 

the Kern River Reserve and an on-going 

research and monitoring project for the 

flycatcher. Consequently, we believe 

that the informational benefits that 

could be provided through a designation 

of critical habitat in this area are already 

provided because of the rationale 

mentioned above and the fact that this 

property was purchased specifically for 

the conservation of the southwestern 

willow flycatcher. Additionally, since 

this area is already being jointly 

managed by Federal, State, and private 

entities for the benefit of the flycatcher, 

its importance to flycatcher 

conservation is already well established. 

(2) Benefits of Exclusion 

The southwestern willow flycatcher 

occurs on public and private lands 

throughout the Kern Management Unit. 

Proactive voluntary conservation efforts 

by private or non-Federal entities are 

necessary to prevent the extinction and 

promote the recovery of the 

southwestern willow flycatcher in the 

Kern Management Unit. 

We have determined that the 

southwestern willow flycatcher using 

habitat located within properties 

covered by management plans or 

conservation strategies that protect or 

enhance the conservation of the 

subspecies will benefit substantially 

from voluntary landowner management 

actions due to an enhancement and 

creation of riparian and wetland habitat 

and a reduction in risk of loss of 

riparian habitat. The conservation 

benefits of critical habitat are primarily 

regulatory or prohibitive in nature. 

Where consistent with the discretion 

provided by the Act, the Service 

believes it is necessary to implement 

policies that provide positive incentives 

to private landowners to voluntarily 

conserve natural resources and that 

remove or reduce disincentives to 

conservation (Wilcove et al. 1996). 

Thus, we believe it is essential for the 

recovery of the southwestern willow 

flycatcher to build on continued 

conservation activities such as these 

with proven partners, and to provide 

positive incentives for other private 

landowners who might be considering 

implementing voluntary conservation 

activities but have concerns about 

incurring incidental regulatory or 

economic impacts. 

The Sprague Ranch is jointly managed 

by the Corps, CDFG, and Audubon in 

accordance with the terms and 

conditions of the Biological Opinions 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60945 

which require actions for the 

conservation of flycatchers, including: 

demographic surveys, cowbird trapping, 

non-native vegetation removal, livestock 

exclusion, hydrologic restoration, 

planting of native vegetation, noxious 

weed control activities, flood irrigating 

low lying areas, upgrading of fencing, 

upgrading irrigation systems, 

monitoring, and reporting. These 

measures will assist in restoration and 

conservation of southwestern willow 

flycatcher habitat. Two habitat 

assessments have been performed on the 

property which concluded that 

approximately 168 ha (414 ac) of land 

are currently available as potential 

breeding habitat through restoration and 

management, and another 

approximately 227 ha (561 ac) were 

identified as potentially restorable to 

support a mosaic of habitat that could 

be used by southwestern willow 

flycatchers during post-breeding 

dispersal and migration. By using the 

available water supply and distribution 

system, modifying or eliminating 

current grazing practices, removing 

invasive non-native plant species, and 

planting riparian vegetation, the 

Sprague Ranch has the potential for 

restoration of approximately 395 ha (975 

ac) into a mosaic of habitat similar to 

the KRP and the South Fork Wildlife 

Area (SFWA). In addition, the water 

supply and distribution system of the 

Sprague Ranch has a beneficial effect on 

the hydrology that supports the riparian 

habitats within the KRP and the SFWA. 

Therefore, while the Sprague Ranch 

possesses habitat for the flycatcher, 

future management of flycatcher habitat 

is needed in order to restore this 

property to its full potential for the bird. 

The implementation of these actions or 

others for the flycatcher may require 

further section 7 consultation between 

the Corps and the Service. As a result, 

there would be an additional use of time 

and money by the Corps and the 

Service, or possibly our non-Federal 

partners (Audubon and CDFG for the 

Corps) to develop sections of biological 

assessments and analyses in biological 

opinions specific to a critical habitat 

designation. These costs, added to 

already limited funds for the Corps for 

wildlife habitat restoration and 

maintenance, would be an additional 

time and cost burden above that which 

would be required for section 7 

consultations without critical habitat. It 

could also cause delays to implementing 

beneficial actions for the flycatcher. If 

due to those limited budgets, the cost of 

developing these assessments are passed 

to our non-Federal partners, then this 

could be an even greater burden due to 

the more limited funding and personnel 

of Audubon and the State. The result 

could, in the most extreme cases, 

prevent or severely delay 

implementation of needed management 

actions. The use of time and effort on 

evaluation of projects on critical habitat 

could take away time, money, and effort 

by our non-Federal partners that could 

not only be used for implementing 

beneficial flycatcher management on the 

Sprague Ranch, but it could extend to 

other properties they own along the 

Kern River important to the flycatcher. 

Therefore, we believe there would be a 

benefit to exclusion of Sprague Ranch 

which could be of greater significance if 

passed on to our non-Federal partners if 

consultation was needed in order to 

implement beneficial projects for the 

flycatcher. 

(3) The Benefits of Exclusion Outweigh 

the Benefits of Inclusion 

Based on the above considerations we 

have determined that the benefits of 

excluding the Sprague Ranch from 

critical habitat in the Kern Management 

Unit outweigh the benefits of including 

it as critical habitat for the southwestern 

willow flycatcher. 

The Sprague Ranch was purchased 

specifically for the southwestern willow 

flycatcher and is jointly managed by the 

Corps, CDFG, and Audubon in 

accordance with the terms and 

conditions of the Biological Opinions. 

Therefore, the strategy of the managing 

partners is to implement conservation 

and management measures to achieve 

conservation goals for the southwestern 

willow flycatcher. There are little to no 

additional educational or regulatory 

benefits of including these lands as 

critical habitat. The Kern River is well 

known by the public and managing 

agencies for its value and importance to 

the southwestern willow flycatcher. 

Likewise, there will be little additional 

Federal regulatory benefit to the species 

because (a) there is a low likelihood that 

the Sprague Ranch will be negatively 

affected to any significant degree by 

Federal activities that were not 

consulted on in the existing Biological 

Opinions pursuant to section 7 

consultation requirements, and (b) the 

Sprague Ranch is being managed in 

accordance with the terms and 

conditions of the Biological Opinions 

and we believe that based on ongoing 

management activities there would be 

no additional requirements pursuant to 

a consultation that addresses critical 

habitat. We believe there could be a 

small additional administrative cost as a 

result of designation of critical habitat to 

the Service, and a cost that could be 

more significant to the Corps and 

potentially non-Federal partners. If the 

Corps administrative costs are passed on 

to our non-Federal partners to conduct 

assessments and analyses, this could 

delay, or in worse case scenario prevent 

important management from being 

implemented on the Sprague Ranch or 

other properties managed for riparian 

values along the Kern River. 

We believe that exclusion of these 

lands will not result in the extinction of 

the subspecies because the flycatcher 

already occupies this segment of the 

Kern River, including the Sprague 

Ranch. Actions which might adversely 

affect the subspecies are expected to 

have a Federal nexus, and would thus 

undergo a section 7 consultation with 

the Service. The jeopardy standard of 

section 7 and routine implementation of 

habitat preservation through the section 

7 process provide assurance that the 

species will not go extinct. In addition, 

the species is protected from take under 

section 9 of the Act. The exclusion 

leaves these protections unchanged 

from those that would exist if the 

excluded areas were designated as 

critical habitat. 

Critical habitat is being designated for 

the subspecies in other areas that will be 

accorded the protection from adverse 

modification by Federal actions using 

the conservation standard based on the 

Ninth Circuit decision in Gifford 

Pinchot. Additionally, the subspecies 

occurs on lands protected and managed 

either explicitly for the subspecies, or 

indirectly through more general 

objectives to protect natural habitat 

values. This provides protection from 

extinction while conservation measures 

are being implemented. The subspecies 

also occurs on lands managed to protect 

and enhance wetland values under the 

Wetlands Reserve Program of the NRCS. 

In conclusion, we find that the 

exclusion of critical habitat on the 

Sprague Ranch would most likely have 

a net positive conservation effect on the 

recovery and conservation of the 

southwestern willow flycatcher when 

compared to the positive conservation 

effects of a critical habitat designation. 

As described above, the overall benefits 

to these species of a critical habitat 

designation for these properties are 

relatively small. In contrast, we believe 

that this exclusion will enhance our 

existing partnership with the Corps, 

CDFG, and Audubon, and it will set a 

positive example and could provide 

positive incentives to other non-Federal 

landowners who may be considering 

implementing voluntary conservation 

activities on their lands. We conclude 

there is a higher likelihood of beneficial 

conservation activities occurring in 

these and other areas for the flycatcher 

60946 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

without designated critical habitat than 

there would be with designated critical 

habitat on the Sprague Ranch. 

South Fork Kern River Wildlife Area 

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

to consider other relevant impacts, in 

addition to economic impacts, of 

designating critical habitat. The South 

Fork Wildlife Area (SFWA) in the Kern 

Management Unit warrants exclusion 

from the final designation of critical 

habitat under Section 4(b)(2) of the Act 

because we have determined that the 

benefits of excluding the SFWA from 

southwestern willow flycatcher critical 

habitat designation will outweigh the 

benefits of including it in the final 

designation based on the special 

management considerations and 

protections afforded for southwestern 

willow flycatcher habitat. The SFWA is 

an approximately 514 ha (1,270 ac) 

parcel of mature willow-cottonwood 

riparian forest located along the south 

fork of the Kern River, west of historic 

Patterson Lane, including a portion of 

upper Lake Isabella. The SFWA is 

jointly managed by the Corps and the 

U.S. Forest Service (Forest Service). 

Isabella Dam and southwestern willow 

flycatcher habitat in the SFWA is 

managed as a result of long-term 

biological opinions for Corps operation 

of Lake Isabella Dam and Reservoir 

(Service File Nos. 1–1–96–F–27; 1–1–

96–F–150; 1–1–99–F–216; and 1–1–05–

F–0067) and on-the-ground management 

by the Forest Service. These opinions 

resulted in the long-term management of 

Lake Isabella Dam that maintains the 

dynamic processes to establish 

flycatcher habitat over the long-term 

and resulted in the acquisition of the 

Sprague Ranch (immediately upstream 

of the SFWA) to compensate for shortterm losses in habitat, and management 

of SFWA for southwestern willow 

flycatchers. The following represents 

our rationale for excluding the SFWA 

from the final designated critical habitat 

for the southwestern willow flycatcher 

in the Kern Management Unit. 

The management of Lake Isabella Dam 

is similar to other reservoirs (i.e., 

Roosevelt, Horseshoe, Mead) that 

develop nesting southwestern willow 

flycatcher habitat. As a result of 

fluctuating lake elevations, the broad 

floodplain of the upper portion of the 

lake bottom is periodically covered in 

water, which once the water recedes, 

provides conditions for the germination 

and development of large patches of 

riparian habitat for the flycatcher. 

Periodic inundation is subsequently 

needed in order to prevent the drying 

and loss of habitat so that habitat 

required by nesting flycatcher can 

regenerate and persist over the longterm. 

Lake Isabella Dam and Reservoir 

operations that periodically inundate 

the SFWA are managed by the Corps in 

accordance with the terms and 

conditions of the Biological Opinions 

which require actions for the 

conservation of flycatchers, including: 

Long-term studies of flycatcher habitat 

and demographics; implementation and 

monitoring of a cowbird trapping 

program; a nest moving protocol to 

prevent inundation of nests during high 

water events; measures to control water 

craft in coordination with the Forest 

Service; and the acquisition of 465 ha 

(1,150 ac) of land to compensate for 

incidental take resulting from the 

periodic inundation of the SFWA. To 

date, the Corps has acquired 415 ha 

(1,025 ac) of land to satisfy the 

conditions of the Biological Opinions. 

In the most recent amendment to the 

Biological Opinions, the Corps and the 

Service have committed to work 

together on acquiring the last 51 ha (125 

ac) within five years of the date of the 

amendment (Service File No. 1–1–05–

F–0067). Funding for the 

implementation of these measures is 

provided by the Corps in accordance 

with terms and conditions of the 

Biological Opinions. 

The SFWA is managed by the Forest 

Service within Lake Isabella (after the 

water recedes) and along the Kern River 

immediately upstream. Through 

informal consultation with the Forest 

Service, measures for the conservation 

of flycatchers have been implemented, 

including: restricting the speed of water 

craft to 8 km per hour (5 mi per hour) 

within 30.5 m (100 ft) of the SFWA; 

prohibition of overnight camping, 

motorized vehicles, and campfires in 

the South Fork Wildlife Area. The 

SFWA is fenced, and the fencing is 

maintained to enforce the exclusion of 

unauthorized uses. Grazing is also 

excluded from the SFWA. 

(1) Benefits of Inclusion 

We believe that there is minimal 

benefit from designating critical habitat 

for the southwestern willow flycatcher 

within portions of the SFWA within the 

Kern Management Unit because, as 

explained above, these lands are already 

managed for the conservation of 

flycatcher. 

As stated in the environmental 

assessment, the primary conservation 

value of the proposed critical habitat 

segments is to sustain existing 

populations. The threshold for reaching 

destruction or adverse modification on 

the SFWA would likely require a 

reduction in the capability of the habitat 

to sustain existing populations. Because 

Isabella Dam operations provide the 

dynamics needed to sustain habitat over 

the long-term and the Forest manages 

the land for the benefit of wildlife and 

the flycatcher, it is highly unlikely that 

projects would be considered for this 

area that would result in a depreciable 

diminishment or long-term reduction of 

the capability of the habitat to sustain 

existing flycatcher populations. Similar 

to other lakes, one of the primary 

purposes of the conservation space of 

the lake bottom is to store water for 

delivery downstream. As a result of the 

importance of this space for temporary 

water storage, there is little to no reason 

to believe that within the lake bottom 

there would be any permanent 

development or alteration that would 

eliminate or significantly reduce the 

amount of open space where flycatcher 

habitat develops and persists. 

Concurrently, Forest Service 

management of cattle grazing activities 

and recreation through fencing and 

other restrictions has helped foster the 

development and maintenance of 

flycatcher habitat within the SFWA. As 

a result, dam operations and land 

management and long-term 

commitments through section 7 

consultations have and will provide 

benefits to the flycatcher within the 

SFWA. 

As described above, the SFWA lands 

proposed for critical habitat may have 

additional conservation value above 

sustaining existing populations, because 

they are managing these lands to 

improve, protect, and possibly expand 

upon the amount of nesting habitat that 

would provide for growth of existing 

populations. Expansion of existing 

populations in these areas would be an 

element of recovering the southwestern 

willow flycatcher. Accordingly, and as 

further discussed above in the ‘‘General 

Principles of Section 7 Consultations 

Used in the 4(b)(2) Balancing Process’’

section, through section 7 consultations 

that may occur, some benefit may incur 

through the adverse modification 

standard and whether or not the activity 

results in a reduction in the suitability 

of the habitat to support expansion of 

existing populations. However, because 

formal consultations will likely result in 

only discretionary conservation 

recommendations (i.e., adverse 

modification threshold is not likely to 

be reached), we believe there is an 

extremely low probability of mandatory 

elements (i.e., reasonable and prudent 

alternatives) arising from formal section 

7 consultations that include 

consideration of designated 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60947 

southwestern willow flycatcher critical 

habitat. 

We believe the operation of Isabella 

Dam and current on-the-ground 

conservation measures being conducted 

for the flycatcher on the SWFA that 

include field studies, management of 

recreational uses, grazing exclusion, 

acquisition of upstream areas, 

fluctuating dam operations, and efforts 

to reduce predation and protection of 

nestlings from inundation provides as 

much as would be achieved through 

section 7 consultations involving 

consideration of critical habitat, using a 

conservation standard based on the 

Ninth Circuit Court’s decision in Gifford 

Pinchot. 

As discussed in the ‘‘Educational 

Benefits of Critical Habitat’’ section 

above, we believe that there would be 

little additional informational benefit 

gained from including these portions of 

the SFWA within the designation 

because this area is well known for its 

value to southwestern willow flycatcher 

by managing agencies and the public. 

Additionally, since this area is already 

being federally managed for the benefit 

of the flycatcher its importance to 

flycatcher conservation is already well 

established. 

(2) Benefits of Exclusion 

The implementation of management 

actions for the southwestern willow 

flycatcher and its habitat within the 

SFWA may require further section 7 

consultation between the Corps, the 

Forest Service, and the Service. As a 

result, there would be an additional use 

of time and money by each agency to 

develop sections of biological 

assessments and analyses in biological 

opinions to address a critical habitat 

designation. These costs would be an 

additional time and cost burden above 

that which would be required for 

section 7 consultations without critical 

habitat. It could cause delays to 

implementing beneficial management 

actions for the flycatcher. The use of 

time and effort on evaluation of projects 

on critical habitat could take away time, 

money, and effort by these agencies to 

implement beneficial flycatcher 

management on the SFWA or other 

areas where management is needed for 

the flycatcher such as the Sprague 

Ranch or other nearby Forest Service 

lands. Therefore, a benefit of excluding 

the SFWA from critical habitat includes 

some reduction in administrative costs 

associated with engaging in the critical 

habitat portion of section 7 

consultations. Administrative costs 

include time spent in meetings, 

preparing letters and biological 

assessments, and in the case of formal 

consultations, the development of the 

critical habitat component of a 

biological opinion. The implementation 

of long-term management activities by 

Corps and Forest Service at SFWA has 

and will continue to help generate 

important status and trend information 

for flycatcher recovery within the Kern 

Management Unit. 

The exclusion of Lake Isabella from 

critical habitat may facilitate other 

cooperative conservation activities with 

other similarly situated dam operators 

or landowners. Throughout the 

comment period and during public 

hearings, we heard from many local 

residents who were very concerned with 

any possible restrictions to Lake Isabella 

lake levels as a result of a critical habitat 

designation. While Isabella is operated 

by the Corps and the land is managed 

by the Forest Service, the recreation 

associated with the lake was a 

significant concern for the community. 

Continued cooperative relations with 

Corps, Forest Service, and non-Federal 

stakeholders associated with recreation 

at Lake Isabella and local governments 

can be expected to influence other 

future partners and lead to greater 

conservation than might be achieved 

through multiple site-by-site, project-byproject, section 7 consultations. The 

benefits of excluding lands within the 

SFWA from critical habitat designation 

include recognizing the value of 

conservation benefits associated with 

long-term management actions being 

implemented for the flycatcher and 

demonstrating to the Corps, Forest 

Service, Lake Isabella community, local 

governments, stakeholders, and 

landowners along the Kern River the 

benefits associated with implementing 

conservation activities. 

In contrast, failure to exclude the 

SFWA could be a disincentive for other 

entities contemplating partnerships 

with the Service, as it would be 

perceived as a way for the Service to 

impose additional regulatory burdens 

once conservation strategies have 

already been agreed to. As noted above, 

while long-term management of the 

SFWA management is conducted by the 

Corps and the Forest Service, Lake 

Isabella was of extreme importance and 

interest to local non-Federal 

stakeholders. The scoping meetings held 

at Lake Isabella, arguably the smallest 

community visited across six states, 

generated the largest attendance 

(hundreds of private citizens concerned 

over the possible designation of the area 

as critical habitat). Excluding this area 

from critical habitat would help foster a 

collaborative relationship with the 

Corps, Forest Service, stakeholders, 

landowners, and local governments 

associated with Lake Isabella and the 

Kern River. We believe this 

collaboration makes a difference in our 

ability to form partnerships with others. 

Concerns over perceived additional 

regulation imposed by critical habitat 

when long-term conservation strategies 

are being implemented harms 

collaborative relationships and can lead 

to distrust. Our experience has 

demonstrated that successful 

completion of conservation efforts such 

as HCPs, conservation easements, or the 

unique long-term section 7 consultation 

on Lake Isabella dam operations can 

result in the development of other 

conservation efforts and HCPs with 

other landowners. 

(3) The Benefits of Exclusion Outweigh 

the Benefits of Inclusion 

Based on the above considerations, 

we have determined that the benefits of 

excluding the SFWA from critical 

habitat for the southwestern willow 

flycatcher in the Kern Management Unit 

outweigh the benefits of inclusion. 

The SFWA is currently operating 

under the terms and conditions of the 

Biological Opinions issued to the Corps 

and management agreed upon through 

informal consultation with the Forest 

Service. These long-term management 

commitments implement conservation 

measures and achieve important 

conservation goals through information 

obtained by field studies, management 

of recreational uses, grazing exclusion, 

acquisition and management of 

upstream acreage, and efforts to reduce 

predation and inundation of nests for 

the benefit of the southwestern willow 

flycatcher. 

The Service believes the additional 

educational and regulatory benefits of 

including the SFWA as critical habitat 

is relatively small to non-existent. The 

local community and managing agencies 

are well aware of the importance of Lake 

Isabella and the SFWA for southwestern 

willow flycatchers due to the notoriety 

consultation for Isabella Dam operation 

elicited in the community, concern by 

managing agencies, and awareness 

raised during the NEPA scoping process 

for this designation. The Service 

anticipates that the conservation 

strategies for SFWA will continue to be 

implemented in the future, and that the 

funding for these activities will be 

provided in accordance with the terms 

and conditions associated with the 

Biological Opinions under section 7 of 

the Act. We anticipate there will be 

little additional Federal regulatory 

benefit to the species because (a) there 

is a low likelihood that the SFWA will 

be negatively affected to any significant 

degree by Federal activities that were 

60948 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

not consulted on in the existing 

Biological Opinions pursuant to section 

7 consultation requirements, and (b) we 

believe that based on past and ongoing 

Forest Service management activities 

there would be no additional 

requirements pursuant to a consultation 

that addresses critical habitat. We also 

believe that due to the purpose of the 

conservation space of Lake Isabella for 

water storage and delivery, there is no 

reason to expect that this area will be 

developed or altered in a way that 

would prevent the SFWA within Lake 

Isabella from being capable of 

supporting southwestern willow 

flycatcher habitat. While management of 

Isabella is accomplished through 

Federal agencies, the benefits of 

excluding lands within the SFWA from 

critical habitat designation include 

demonstrating to the concerned Lake 

Isabella community, local governments, 

stakeholders, and landowners along the 

Kern River the benefits associated with 

implementing conservation activities. 

We believe that exclusion of these 

lands will not result in the extinction of 

the southwestern willow flycatcher as 

the SFWA is occupied by the 

southwestern willow flycatcher. Actions 

which might adversely affect the species 

are expected to have a Federal nexus, 

and regardless of a critical habitat 

designation, would undergo a section 7 

consultation with the Service. The 

jeopardy standard of section 7 and 

routine implementation of habitat 

preservation through the section 7 

process provides assurance that the 

species will not go extinct. In addition, 

the species is protected from incidental 

take under section 9 of the Act. The 

exclusion leaves these protections 

unchanged from those that would exist 

if the SFWA was designated as critical 

habitat. 

Critical habitat is being designated for 

the subspecies in other areas, including 

the Kern River adjacent to the SFWA 

that will be accorded protection from 

adverse modification by Federal actions 

using the conservation standard based 

on the Ninth Circuit decision in Gifford 

Pinchot. Additionally, the subspecies 

occurs on lands protected and managed 

either explicitly for the species, or 

indirectly through more general 

objectives to protect natural habitat 

values. This provides protection from 

extinction while conservation measures 

are being implemented. The subspecies 

also occurs on lands managed to protect 

and enhance wetland values under the 

Wetlands Reserve Program of the NRCS. 

In conclusion, we find that the 

benefits of excluding the SFWA 

outweigh the benefits of inclusion, and 

this exclusion will not result in 

extinction of the southwestern willow 

flycatcher. We believe the exclusion of 

critical habitat on the SFWA would 

most likely have a net positive 

conservation effect on the recovery and 

conservation of the southwestern 

willow flycatcher when compared to the 

positive conservation effects of a critical 

habitat designation. As described above, 

the overall benefits to the flycatcher of 

a critical habitat designation for these 

properties are relatively small. In 

contrast, we believe that this exclusion 

will enhance our existing partnership 

with the Corps, Forest Service, and local 

community, and due to the attention 

this generated within the local 

community, set a positive example that 

could provide positive incentives to 

other non-Federal landowners who may 

be considering implementing voluntary 

conservation activities on their lands. 

We conclude there is a higher likelihood 

of beneficial conservation activities 

occurring in these and other areas for 

the southwestern willow flycatcher 

without designated critical habitat than 

there would be with designated critical 

habitat on the SFWA. 

Relationship of Critical Habitat to 

National Wildlife Refuge Lands—

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

Act 

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 and completed 

Comprehensive Conservation Plans 

(CCPs) that provide the framework for 

protection and management of all trust 

resources, including federally listed 

species and sensitive natural habitats. 

These plans, and the management 

actions undertaken to implement them, 

will have to undergo (or have 

undergone) review and consultation 

under section 7 of the Act and 

evaluation for their consistency with the 

conservation needs of listed species. 

Those NWRs without approved CCPs 

currently have management plans and/ 

or programs in place that provide 

conservation benefits for the 

southwestern willow flycatcher. Their 

annual work plans provide the specific 

tasks associated with accomplishing the 

broader Refuge objectives of wildlife 

habitat management. Some of these 

management plans have also been 

reviewed by the public under NEPA and 

consulted upon under section 7 of the 

Act. For example, the Lower Colorado 

River National Wildlife Refuges (Bill 

Williams, Havasu, Cibola, and Imperial 

NWRs) currently operate under a 

Comprehensive Management Plan 

(USFWS 1994) that has been evaluated 

under NEPA and section 7 of the Act. 

We believe that there is minimal benefit 

from designating critical habitat for the 

southwestern willow flycatcher within 

NWR lands because these lands are 

protected areas for wildlife, and are 

currently managed for the conservation 

of wildlife, including threatened and 

endangered species, specifically the 

southwestern willow flycatcher. Below 

we first provide a description of the 

special management being provided by 

the NWR lands within the proposed 

designation, followed by a 4(b)(2) 

analysis that weighs the benefits of 

excluding versus those of including 

these lands within the final designation. 

Bill Williams Management Unit, AZ 

Bill Williams NWR 

The Bill Williams NWR consists of 

2,471 ha (6,105 ac) (USFWS 1994), and 

was originally established on January 

22, 1941, concurrently with the Havasu 

NWR by Executive Order 8647. Some of 

the goals included in the lower 

Colorado River refuges (Havasu, Bill 

Williams, Cibola, and Imperial NWRs) 

Comprehensive Management Plan 

(1994–2014) (USFWS 1994) are to: 

‘‘* * * restore and maintain the natural 

diversity * * *’’; ‘‘* * * achieve 

threatened and endangered species 

recovery * * *’’; ‘‘* * * revegetate 

substantial amounts of habitat with 

native mixes of vegetation leading to 

biological diversity’’; ‘‘* * * enhance 

use of Colorado River water and protect 

existing water rights holdings * * *’’; 

‘‘* * * ensure only compatible and 

appropriate activities occur * * * and 

* * * regulate all activities * * * that 

are potentially harmful to refuge 

resources’’; and to ‘‘* * * effect 

improvements to funding and staffing 

that will result in long lasting 

enhancements to habitat and wildlife 

resources * * * leading to achievement 

of the goals of this plan and the goals 

of the National Wildlife Refuge 

System.’’

The Bill Williams NWR Annual 

Habitat Work Plan for 2004–2005 

described the Executive Order 

establishing the area ‘‘* * * as a refuge 

and breeding ground for migratory birds 

and other wildlife.’’ This refuge 

includes the largest flood regenerated 

riparian forest on the Lower Colorado 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60949 

River of approximately 931 ha (2300 ac) 

of cottonwood, willow, mesquite, and 

salt cedar woodlands and terrace 

shrublands. From 1994 to 2003, 1 to 15 

flycatcher territories were detected on 

the refuge, with the largest number of 

territories detected in 2002 (USGS 

2004). Migrant willow flycatchers have 

also been detected (Koronkiewicz et al. 

2004). Their habitat goals are to protect, 

maintain, and if possible, enhance 

habitats, particularly those for 

neotropical migrants, endangered 

species, and other species of concern. 

This is being done by monitoring the 

location of flycatchers and other 

sensitive species, and protecting habitat 

from: wildfire, impacts of recreation, 

and exotic weeds such as Fountain 

Grass and Arundo spp. 

The effort by the refuge to maintain 

and improve the abundance and quality 

of riparian vegetation provides a 

conservation benefit to the flycatcher. 

As a result of the refuge’s effort and 

long-term commitment to provide a 

conservation benefit to the southwestern 

willow flycatcher, we believe these 

protections and assurances warrant 

exclusion from flycatcher critical 

habitat. 

Hoover to Parker Management Unit, AZ/ 

CA 

Havasu NWR 

The Havasu NWR was established by 

Executive Order 8647 on January 22, 

1941, ‘‘* * * as a refuge and breeding 

ground for migratory birds and other 

wildlife.’’ It consists of 15,551 ha 

(38,427 ac) (USFWS 1994). Some of the 

goals included in the lower Colorado 

River refuges (Havasu, Bill Williams, 

Cibola, and Imperial NWRs) 

Comprehensive Management Plan 

(1994–2014) (USFWS 1994) are to: 

‘‘* * * restore and maintain the natural 

diversity * * *’’; ‘‘* * * achieve 

threatened and endangered species 

recovery * * *’’; ‘‘* * * revegetate 

substantial amounts of habitat with 

native mixes of vegetation leading to 

biological diversity*rdquo;; ‘‘* * * 

enhance use of Colorado River water 

and protect existing water rights 

holdings * * *’’; ‘‘* * * ensure only 

compatible and appropriate activities 

occur * * * and * * * regulate all 

activities * * * that are potentially 

harmful to refuge resources’’; and to 

‘‘* * * effect improvements to funding 

and staffing that will result in long 

lasting enhancements to habitat and 

wildlife resources * * * leading to 

achievement of the goals of this plan 

and the goals of the National Wildlife 

Refuge System.’’ In addition, flycatcher 

management on this refuge will work in 

conjunction with additional flycatcher 

management throughout the LCR MSCP 

(see section describing Relationship of 

Critical Habitat to Approved Habitat 

Conservation Plans—Exclusions Under 

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

The Havasu NWR Annual Habitat 

Work Plan for 2004–2005 identifies 

specific areas where habitat for the 

southwestern willow flycatcher will be 

maintained, improved, protected, and 

managed. Overall, the refuge manages 

for a variety of habitat types that 

provide locations for waterfowl, wading 

birds, passerines, etc. Because 

southwestern willow flycatchers are a 

keystone woody riparian species, 

management and improvement of 

habitat for the flycatcher (and all 

riparian passerine species) is a specific 

goal of the refuge. Between 2 and 20 

flycatcher territories have been detected 

on the refuge between 1995 and 2003 

(USGS 2004), as well as migrating 

southwestern willow flycatchers 

(Koronkiewicz et al. 2004). A high of 20 

territories were detected in 2002. 

Riparian habitat restoration and 

maintenance projects are underway and 

will continue in order to provide a 

conservation benefit for the flycatcher. 

For example, approximately 40 ha (100 

ac) in the Beal Unit and 20 ha (50 ac) 

in the Pintail Unit are being restored 

and managed for woody riparian 

vegetation that can be used by migrant 

and possibly nesting flycatchers. During 

the 2004 fiscal year, a total of 8,765 

cottonwoods, 4,800 Goodding’s willows, 

4,065 Coyote willow, and 940 mesquites 

were planted in the Beal Unit. In the 

Pintail Unit, during the 2004 fiscal year, 

1,650 cottonwoods and 1,175 willows 

were planted. In the 1,619 ha (4,000 ac) 

Topock Unit, habitat exists and is being 

managed for nesting flycatchers and 

wading birds, and the 202 ha (500 ac) 

Whiskey Slough Unit is also targeted for 

management for southwestern willow 

flycatchers. 

In addition to the riparian restoration 

efforts occurring on the refuge, 

additional management occurs in order 

to improve habitat quality and 

persistence. Specific water management 

to mimic the natural hydrology is 

needed for woody vegetation and to 

maintain conditions and prey for 

nesting flycatchers. Management of feral 

pigs that can harm and destroy 

vegetation is needed to protect habitat. 

Additionally, management of exotic 

woody and weed species such as salt 

cedar and Johnson grass occurs to 

reduce risks of fire in riparian areas. 

The effort by the refuge to maintain 

and improve the abundance, 

distribution, and quality of riparian 

vegetation provides a conservation 

benefit to the flycatcher. Additional 

water management is an essential 

component to the success of plantings 

and existing habitat conditions favored 

by the flycatcher. Protecting habitat by 

reducing the reducing the risk of fire 

and destruction by feral pigs also 

provides a conservation benefit. As a 

result of the refuge’s effort and longterm commitment to provide a 

conservation benefit to the southwestern 

willow flycatcher, we believe these 

protections and assurances warrant 

exclusion from flycatcher critical 

habitat. 

Parker to Southerly International Border 

Management Unit, AZ/CA 

Cibola NWR 

The Cibola NWR consists of 

approximately 6,745 ha (16,667 ac) 

(USFWS 1994). Some of the goals 

included in the lower Colorado River 

refuges (Havasu, Bill Williams, Cibola, 

and Imperial NWRs) Comprehensive 

Management Plan (1994–2014) (USFWS 

1994) are to: ‘‘* * * restore and 

maintain the natural diversity * * * ’’; 

‘‘* * * achieve threatened and 

endangered species recovery * * *’’; 

‘‘* * * revegetate substantial amounts 

of habitat with native mixes of 

vegetation leading to biological 

diversity’’; ‘‘* * * enhance use of 

Colorado River water and protect 

existing water rights holdings * * * ’’; 

‘‘* * * ensure only compatible and 

appropriate activities occur * * * and 

* * * regulate all activities * * * that 

are potentially harmful to refuge 

resources’’; and to ‘‘* * * effect 

improvements to funding and staffing 

that will result in long lasting 

enhancements to habitat and wildlife 

resources * * * leading to achievement 

of the goals of this plan and the goals 

of the National Wildlife Refuge 

System.’’ In addition, flycatcher 

management on this refuge will work in 

conjunction with additional flycatcher 

management throughout the LCR MSCP 

(see section describing Relationship of 

Critical Habitat to Approved Habitat 

Conservation Plans—Exclusions Under 

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

The Cibola NWR 2004–2005 Annual 

Habitat Work Plan identifies as its main 

objective, the restoration of wetland, 

riverine, riparian, moist soil and 

agricultural habitat in order to maintain 

the natural abundance and diversity of 

native species, habitats and 

communities which are found in the 

Lower Colorado River floodplain (with 

emphasis on trust resources, endangered 

and threatened species, and other 

species of concern). As a result, the 

migratory and nesting habitat of the 

60950 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

southwestern willow flycatcher, as well 

as habitat for other passerine species is 

specifically identified as the important 

habitat to maintain, preserve, and 

restore. A single southwestern willow 

flycatcher territory has been detected on 

the refuge (USGS 2004) as well as 

migrating willow flycatchers 

(Koronkiewicz et al. 2004). 

The Cibola NWR has specifically 

identified as a goal, maintaining existing 

native riparian woodland and restoring 

an average of 20 ha (50 ac) annually 

through seeding and planting native 

mesquite, cottonwood, and willow trees, 

and associated understory plants. Three 

different Refuge Management Units that 

contain approximately 323 ha (800 ac), 

6 ha (15 ac), and 40 ha (100 ac) of 

habitat, are designated for restoration to 

native mesquite, cottonwood, and 

willows. 

Previous plantings and habitat 

maintenance has occurred, which has 

resulted in improved habitat conditions 

for the flycatcher. At one 7 ha (17.8 ac) 

field where about 7,100 one gallon 

cottonwood and willow trees were 

planted in 2003, the area has shown 

extensive use by birds, including 

detections of migrant willow flycatchers 

and yellow-billed cuckoos. 

Protection of existing sites through 

fire management and replacement of 

poor quality salt cedar to less flammable 

and higher quality native plant species 

is occurring as part of the refuge’s 

restoration efforts. Reducing the amount 

of unsuitable salt cedar and replacing it 

with native mesquite, cottonwoods, and 

willows, provides improved habitat 

value for flycatchers and other 

passerines and reduces the risk of 

wildfire. 

The refuge-wide effort to maintain 

and improve the abundance, 

distribution, and quality of riparian 

vegetation provides a conservation 

benefit to the flycatcher. The protection 

of this habitat by reducing the risk of 

fire through management of flammable 

salt cedar, also provides a conservation 

benefit. As a result of Cibola’s refugewide effort and long-term commitment 

to provide a conservation benefit to the 

southwestern willow flycatcher by 

improving the abundance, distribution, 

quality, and persistence of native 

riparian vegetation for nesting and 

migrating flycatchers, we believe these 

protections and assurances warrant 

exclusion from flycatcher critical 

habitat. 

Imperial NWR 

The Imperial NWR consists of 10,428 

ha (25,768 ac). Some of the goals 

included in the lower Colorado River 

refuges (Havasu, Bill Williams, Cibola, 

and Imperial NWRs) Comprehensive 

Management Plan (1994–2014) (USFWS 

1994) are to: ‘‘* * * restore and 

maintain the natural diversity * * *’’; 

‘‘* * * achieve threatened and 

endangered species recovery * * *’’; 

‘‘* * * revegetate substantial amounts 

of habitat with native mixes of 

vegetation leading to biological 

diversity’’; ‘‘* * * enhance use of 

Colorado River water and protect 

existing water rights holdings * * *’’; 

‘‘* * * ensure only compatible and 

appropriate activities occur * * * and 

* * * regulate all activities * * * that 

are potentially harmful to refuge 

resources’’; and to ‘‘* * * effect 

improvements to funding and staffing 

that will result in long lasting 

enhancements to habitat and wildlife 

resources * * * leading to achievement 

of the goals of this plan and the goals 

of the National Wildlife Refuge 

System.’’ In addition, flycatcher 

management on this refuge will work in 

conjunction with additional flycatcher 

management throughout the LCR MSCP 

(see section describing Relationship of 

Critical Habitat to Approved Habitat 

Conservation Plans—Exclusions Under 

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

The Imperial NWR Annual Habitat 

Work Plan for 2004–2005 identifies 

specific areas where riparian habitat 

will be maintained, improved, 

protected, and managed. Overall, the 

refuge manages for a variety of habitat 

types that provide locations for 

waterfowl, wading birds, passerines, etc. 

Their Work Plan specifically identifies 

15 Management Units (totaling about 

648 ha/1600 ac) where habitat for 

riparian obligate passerines is a target. 

Not every hectare/acre of these Units is 

dedicated specifically to woody riparian 

habitat. Restoration and management of 

flycatcher habitat include maintenance 

of areas with woody riparian vegetation, 

and restoration and protection through 

methods such as planting, salt cedar 

control, and prescribed burns. The 

Backwater Riversedge Management Unit 

has an additional 2,270 ha (5,609 ac) of 

salt cedar, willow, remnant 

cottonwoods, and scattered marshes for 

southwestern willow flycatchers. One to 

five flycatcher territories were detected 

for 3 years on the refuge between 1996 

and 2003 (USGS 2004), as well as 

migrating southwestern willow 

flycatchers (Koronkiewicz et al. 2004). 

The refuge-wide effort to maintain 

and improve the abundance, 

distribution, and quality of riparian 

vegetation provides a conservation 

benefit to the flycatcher. The protection 

of this habitat by reducing the risk of 

wildfire through management of 

flammable salt cedar, also provides a 

conservation benefit. As a result of 

Imperial’s refuge-wide effort and longterm commitment to provide a 

conservation benefit to habitat for 

nesting and migrating southwestern 

willow flycatchers, we believe these 

protections and assurances warrant 

exclusion from flycatcher critical 

habitat. 

Middle Rio Grande Management Unit, 

NM 

Bosque del Apache NWR 

The Bosque del Apache NWR consists 

of 23,117 ha (57,121 ac), of which 

approximately 4,856 ha (12,000 ac) 

occur within the Rio Grande floodplain. 

Since 1986, the refuge has been actively 

restoring riparian forests and grasslands. 

In 1999, the refuge expanded its ‘‘place 

of use’’ increasing the potential for 

additional riparian habitat to be 

restored. Since 1993, migratory and 

nesting southwestern willow flycatchers 

have been annually detected at the 

refuge with 1 to 5 territories detected 

(USGS 2004). 

The refuge currently manages eight 

sites for southwestern willow flycatcher 

habitat. Within the historic floodplain 

there is currently an estimated 32 ha (78 

ac) of native-dominated flycatcher 

habitat, and within the active 

floodplain, 23 ha (58 ac) of nativedominated habitat is estimated to exist. 

More suitable habitat in non-native and 

native vegetation exists. 

The refuge is planning to manage 

seven areas specifically for 

southwestern willow flycatcher 

breeding habitat in the active floodplain 

and four areas in the historic floodplain. 

Combined, these 11 areas total 271 ha 

(669 ac). 

The refuge currently uses a variety of 

restoration and management techniques 

to create, maintain, and protect 

southwestern willow flycatcher habitat. 

Flammable salt cedar is being 

selectively removed and replaced with 

native vegetation and grasslands in 

order to improve the quality and 

abundance of flycatcher habitat. The 

reduction of exotic vegetation, increase 

in native vegetation, and creation of 

grassland fire breaks reduces the 

occurrence and impact of wildfire. In 

order to achieve restoration success 

with native woody riparian vegetation, 

water is being applied to restoration 

sites in order to mimic the timing of 

natural hydrograph (the refuge has a 

license for 12,417 acre feet of water per 

year). Also, within the active floodplain, 

in order to restore/improve channel 

floodplain connection, water 

distribution, channel movement, and 

sediment transport, banks are planned 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60951 

for de-stabilization as are limited 

topographic changes to the floodplain 

are needed. 

The refuge-wide effort to maintain 

and improve the abundance, 

distribution, and quality of riparian 

vegetation provides a conservation 

benefit to the flycatcher. The protection 

of this habitat by reducing the risk of 

fire through management of flammable 

salt cedar, also provides a conservation 

benefit. As a result of Bosque del 

Apache’s refuge-wide effort and longterm commitment to provide a 

conservation benefit to the southwestern 

willow flycatcher habitat for nesting and 

migrating flycatchers, we believe these 

protections and assurances warrant 

exclusion from flycatcher critical 

habitat. 

Sevilleta NWR 

The Sevilleta NWR’s CCP describes 10 

goals that promote the diversity, 

protection, management, enhancement, 

and maintenance of wildlife habitat. A 

few of those goals are specific to the 

management of southwestern willow 

flycatcher habitat. A specific goal is to 

‘‘provide for the enhancement, 

preservation, and protection of 

threatened and endangered species as 

they occur naturally or were historically 

present on the Sevilleta NWR so that 

viable, self-sustaining populations can 

be restored to their natural habitats.’’

Additional goals describe, restoring and 

maintaining ‘‘* * * the natural 

diversity of plants and wildlife * * *,’’

and protecting existing, and securing 

‘‘* * * additional water rights and/or 

in-stream flow rights as necessary to 

protect the integrity of the riparian and 

aquatic habitats on the refuge.’’ A total 

of 4 to 10 flycatcher territories have 

been detected on the refuge between 

1999 and 2003 (USGS 2004). 

The CCP more specifically describes 

the refuge’s objectives to meet the goal 

of enhancing riparian habitat on the Rio 

Grande. At Sevilleta NWR, one objective 

is to ‘‘* * * preserve refuge habitat 

diversity and threatened and 

endangered species habitats by 

preserving and enhancing habitats to 

their natural condition.’’ Another is to 

‘‘reverse declining trends in quality and 

quantity of riparian wetland habitats; 

restore, maintain, and enhance the 

species composition, aerial extent, and 

spatial distribution of riparian/wetland 

habitats.’’ The CCP also describes that a 

key objective is to ‘‘* * * preserve, 

enhance, and restore hydrological 

regimes in order to perpetuate a healthy 

river ecosystem.’’

The CCP describes the goal of 

providing, ‘‘* * * 100 acres (40 ha) of 

cottonwood/willow habitat specifically 

for southwestern willow flycatchers.’’ In 

addition to the main goals and 

objectives specific to river function and 

riparian habitat, the CCP describes 

strategies in order to reach this 

flycatcher objective such as controlling 

non-native vegetation, implementing 

management practices that ensure 

survival of and eliminate impacts to 

naturally occurring threatened and 

endangered species, and restoring native 

plants. 

The effort to maintain and improve 

the abundance, distribution, and quality 

of riparian vegetation provides a 

conservation benefit to the flycatcher. 

As a result of the Sevilleta NWR’s effort 

and long-term commitment to provide a 

conservation benefit to the southwestern 

willow flycatcher by improving the 

abundance, distribution, quality, and 

persistence of native riparian vegetation 

for nesting and migrating flycatchers, 

we believe these protections and 

assurances warrant exclusion from 

flycatcher critical habitat. 

San Luis Valley Management Unit, CO 

Alamosa NWR 

The Alamosa NWR’s CCP describes 13 

goals that promote the diversity, 

protection, management, enhancement, 

and maintenance of wildlife habitat. 

One of those goals is specific to the 

management of habitat used by the 

southwestern willow flycatcher. This 

goal is to ‘‘enhance the Rio Grande 

corridor and its tributaries on refuge 

lands to provide habitat for river, 

riparian dependent, and other wetland 

species.’’ A total of 19 to 29 

southwestern willow flycatcher 

territories have been detected on the 

refuge between 1997 and 2003 (USGS 

2004). In addition, flycatcher 

management on this refuge will work in 

conjunction with additional flycatcher 

management throughout the San Luis 

Valley Management Unit (see section 

describing Relationship of Critical 

Habitat to Partnerships). 

The CCP more specifically describes 

the refuge’s objectives to meet the goal 

of enhancing riparian habitat on the Rio 

Grande. At Alamosa NWR, the objective 

is to ‘‘* * * dense multi-layered native 

riparian vegetation such as willows and 

cottonwoods for breeding and migrating 

riparian obligate species, notably the 

southwestern willow flycatcher * * *’’

Additionally, an objective is to protect 

the aquatic resources and provide for a 

disturbance free breeding environment 

for migratory species. The refuge 

intends to perpetuate the natural aspect 

of the physical and biological 

characteristics of the Rio Grande 

floodplain. Additionally, the refuge 

intends to protect sufficient habitat for 

the southwestern willow flycatcher 

through easement and fee-title 

acquisition, habitat improvements on 

the refuge, and protections of habitat on 

private lands through Partners for Fish 

and Wildlife Programs. 

The refuge-wide effort to maintain 

and improve the abundance, 

distribution, and quality of riparian 

vegetation provides a conservation 

benefit to the flycatcher. As a result of 

Alamosa’s refuge-wide effort and longterm commitment to provide a 

conservation benefit to the southwestern 

willow flycatcher by improving the 

abundance, distribution, quality, and 

persistence of native riparian vegetation 

for nesting and migrating southwestern 

willow flycatchers, we believe these 

protections and assurances warrant 

exclusion from southwestern willow 

flycatcher critical habitat. 

Pahranagat Management Unit, NV 

Pahranagat NWR 

The Pahranagat NWR was established 

for the conservation of wildlife, 

including migratory birds like the 

southwestern willow flycatcher. The 

Refuge’s draft CCP specifies as one of its 

goals the enhancement of wildlife 

diversity and contribution to the 

recovery of endangered, threatened, and 

special status species through habitat 

improvements and restoration. 

In order to accomplish this goal for 

the southwestern willow flycatcher, the 

refuge is currently engaged in a variety 

of management actions. They are 

maintaining 41 ha (100 acs) of 

cottonwood/willow riparian habitat 

specifically for breeding southwestern 

willow flycatchers and other migratory 

birds. Additionally, over the last three 

years the refuge has planted over 6,000 

willows and cottonwood trees on 81 ha 

(200 ac) to provide more breeding 

habitat for the flycatcher. The refuge 

continues to help coordinate with other 

agencies in their surveys and research of 

southwestern willow flycatchers and to 

seek funding to develop more acreage 

into cottonwood/willow through 

restoration efforts. 

As a result of the refuge’s 

management, the population of breeding 

southwestern willow flycatchers has 

increased from 5 to 14 territories 

between 1997 and 2003 (USGS 2004). 

The refuge-wide effort to maintain and 

improve the abundance, distribution, 

and quality of riparian vegetation 

provides a conservation benefit to the 

flycatcher. As a result of the refuge’s 

goals for conserving wildlife, and their 

commitment to improving the 

abundance, distribution, quality, and 

60952 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

persistence of native riparian vegetation 

for nesting and migrating southwestern 

willow flycatchers, we believe these 

protections and assurances warrant 

exclusion from southwestern willow 

flycatcher critical habitat. 

(1) Benefits of Inclusion for NWR lands 

We believe that there is minimal 

benefit from designating critical habitat 

for the southwestern willow flycatcher 

on NWR lands because, as explained in 

detail above, these lands are already 

managed for the conservation of 

wildlife. 

As stated in the environmental 

assessment, the primary conservation 

value of the proposed critical habitat 

segments is to sustain existing 

populations. The threshold for reaching 

destruction or adverse modification on 

NWR lands would likely require a 

reduction in the capability of the habitat 

to sustain existing populations. It is 

likely that actions that would reduce the 

capability of the habitat to sustain a 

population would also jeopardize the 

continued existence of the species. 

Consequently, the outcome of the 

section 7 consultations on NWR lands 

may not be materially different with 

designation of critical habitat compared 

to the listing of the species alone. In 

addition, given that these lands are 

managed for the conservation of 

wildlife, in particular endangered and 

threatened species, and specifically 

riparian habitat for migratory and 

nesting southwestern willow 

flycatchers, it is highly unlikely that the 

NWR lands would consider undertaking 

any projects that would result in a longterm reduction of the capability of the 

habitat to sustain existing populations. 

To the contrary, activities occurring 

within NWR lands are specifically for 

the benefit of the flycatcher, by 

restoring, improving, and protecting its 

habitat. 

As described above, all of NWR lands 

proposed for critical habitat may have 

additional conservation value above 

sustaining existing populations, because 

they are managing these lands to 

improve, protect, and expand upon the 

amount of nesting habitat that would 

provide for growth of existing 

populations. Expansion of existing 

populations in these areas would be an 

element of recovering the southwestern 

willow flycatcher. Accordingly, through 

section 7 consultations that may occur, 

some benefit may incur through the 

adverse modification standard and 

whether or not the activity results in a 

reduction in the suitability of the habitat 

to support expansion of existing 

populations. However, because formal 

consultations will likely result in only 

discretionary conservation 

recommendations (i.e., adverse 

modification threshold is not likely to 

be reached), we believe there is an 

extremely low probability of mandatory 

elements (i.e., reasonable and prudent 

alternatives) arising from formal section 

7 consultations that include 

consideration of designated 

southwestern willow flycatcher critical 

habitat. 

The draft environmental assessment 

found that minor changes through 

section 7 consultation may occur in the 

form of additional discretionary 

conservation recommendations to 

reduce impacts to the primary 

constituent elements. For activities that 

NWR’s are anticipated to engage in, 

those are expected to primarily be 

projects focused on habitat restoration 

and fire management. One formal 

consultation for habitat restoration has 

occurred on NWR lands (Parahnagat 

NWR, NV) that resulted in incidental 

take of one flycatcher territory. Both 

restoration and fire management 

activities were anticipated in the draft 

environmental assessment to possibly 

have short-term adverse impacts to 

PCEs, but long-term beneficial effects 

from protections and improvement of 

habitat quality, quantity, and 

persistence. However, as discussed 

above, consultations on these activities 

would be similar to existing conditions, 

where consultations already address 

potential affects to the southwestern 

willow flycatcher because these river 

segments are occupied by nesting and 

migrating southwestern willow 

flycatchers. The outcome of the section 

7 consultations on these NWRs may not 

be materially different with designation 

of critical habitat compared to the 

listing of the species alone due to the 

threshold for reaching destruction or 

adverse modification on proposed 

critical habitat. Moreover, we note that 

while additional conservation 

recommendations may result for 

projects of this nature, they would be 

discretionary on the part of the Federal 

agency. 

(2) Benefits of Exclusion for NWR lands 

The benefits of excluding NWR lands 

include a reduction in administrative 

costs associated with engaging in 

section 7 consultations for critical 

habitat Administrative costs include 

additional time spent in meetings and 

preparing letters, and in the case of 

biological assessments and informal and 

formal consultations, the development 

of those portions of these documents 

that specifically address the critical 

habitat designation. NWR staff can, 

more appropriately, use these funds 

toward continuing to manage and 

improve NWR lands for their stated 

purpose, wildlife conservation (and 

southwestern willow flycatcher 

conservation). In the future, these 

refuges will likely engage in low effort 

informal intra-Service section 7 

consultations annually, and less 

frequently formal consultations, to 

address impacts of activities on the 

southwestern willow flycatcher 

(primarily those associated with habitat 

restoration and fire management). 

Potential project modifications are 

likely to be minimal, given the 

beneficial nature of the NWR activities 

and projects. 

(3) Benefits of Exclusion Outweigh 

Benefits of Inclusion 

In summary, we believe that the 

benefits of excluding NWR’s from the 

designation of critical habitat for the 

southwestern willow flycatcher 

outweigh the benefits of including the 

NWR’s in critical habitat. We find that 

including the NWR’s would result in 

very minimal, if any additional benefits 

to the southwestern willow flycatcher, 

as explained above. However, including 

the NWRs in the designation would 

require some additional administrative 

effort and cost during the section 7 

consultation process. Although the 

additional effort to consider and analyze 

the affects of various projects on critical 

habitat may not be substantial, it would 

require the NWR’s to use additional 

resources that may be otherwise used 

towards beneficial projects for wildlife 

(and the southwestern willow 

flycatcher). 

We also find that the exclusion of 

these NWRs will not lead to the 

extinction of the southwestern willow 

flycatcher, nor hinder its recovery 

because there is the emphasis at each 

NWR to protect and enhance habitat 

specifically for the southwestern willow 

flycatcher. 

Relationship of Critical Habitat to 

American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the 

Endangered Species Act 

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 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60953 

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: 

Chemehuevi, Colorado River, Fort 

Mojave, Quechan (Fort Yuma), 

Hualapai, Isleta, La Jolla, Pala, Rincon, 

San Carlos, San Illdefonso, San Juan, 

Santa Clara, Santa Ysabel, and YavapaiApache. In making our final decision 

with regard to tribal lands, we 

considered 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. 

Tribal governments protect and 

manage their resources in the manner 

that is most beneficial to them. Each of 

the affected Tribes exercises legislative, 

administrative, and judicial control over 

activities within the boundaries of their 

respective lands. Additionally, they 

have natural resource programs and 

staff, and some have generated 

Southwestern Willow Flycatcher 

Management Plans (SWFMP). In 

addition, as trustee for land held in trust 

by the United States for Indian Tribes, 

the BIA provides technical assistance to 

the Tribes on management planning and 

oversees a variety of programs on Tribal 

lands. Flycatcher conservation activities 

have been ongoing on many Tribal lands 

included in the proposed critical habitat 

designation. On other Tribal lands, their 

natural resource management, while not 

specific to the flycatcher, has been 

consistent with management of habitat 

for the flycatcher. The development and 

implementation of these efforts 

formalized in these Management Plans 

will continue with or without critical 

habitat designation. 

Tribal Conservation/Management Plans/ 

Partnerships 

In this section, we first provide the 

specifics of the SWFMPs that were 

developed by the Tribes/Pueblos 

(Chemehuevi, Colorado River, Fort 

Mojave, Quechan—Fort Yuma, 

Hualapai, Isleta, La Jolla, Rincon, San 

Carlos, and Yavapai-Apache). These 

plans were all admitted to the 

supporting record during the open 

comment period for the proposed rule. 

After this introduction, we analyze the 

benefits of including these lands within 

the critical habitat designation and the 

benefits of excluding these areas. We 

have also developed partnerships 

specifically for the management of 

southwestern willow flycatcher habitat 

on the San Illdefonso, Santa Clara, and 

San Juan Pueblos in northern New 

Mexico. We provide a description of 

those partnerships and a benefits 

analysis for each of these Pueblos at the 

end of the tribal section below. 

Tribal Conservation/Management Plans 

In this section, we first provide the 

specifics of the SWFMP that were 

developed by the Tribes/Pueblos. These 

plans were all admitted to the 

supporting record during the open 

comment period for the proposed rule. 

After this introduction, we analyze the 

benefits of including the Tribes’ lands 

within the critical habitat designation 

and the benefits of excluding these 

areas. 

Middle Colorado Management Unit, AZ 

Hualapai Tribe 

The Hualapai Tribe sits alongside a 

segment of essential southwestern 

willow flycatcher habitat along the 

Colorado River on the south side of the 

channel in the Middle Colorado 

Management Unit above Lake Mead. 

The Hualapai Tribe had no known 

southwestern willow flycatcher 

territories in 2003, but has eight sites 

where territories have previously been 

detected. The Hualapai Tribe has 

finalized a SWFMP and the plan has 

been adopted by the Hualapai Tribal 

Council. 

The SWFMP’s objectives are to: 

manage riparian vegetation to maximize 

continued presence of native plant 

species suitable for use by southwestern 

willow flycatchers; ensure that existing 

land uses (which presently include 

recreational activities) will not result in 

net loss or reduction in quality of 

southwestern willow flycatcher habitat; 

and continue their Department of 

Natural Resources partnership in the 

management of the lower Colorado 

River (see section describing 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans—

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

Act). 

This SWFMP specifically addresses 

and presents assurances for 

southwestern willow flycatcher 

conservation measures. There would be 

no net loss or permanent modification 

from management of suitable native 

riparian habitat to the bird. Any 

restoration activities that are directed at 

reducing nonnative tamarisk, 

controlling fire, construction of roads, or 

recreational management within 

occupied willow flycatcher habitat, will 

be coordinated with the Service to 

ensure that detrimental impacts are 

minimized. Helicopter flights will not 

approach closer than 91 m (300 feet) of 

occupied habitat to avoid any possible 

physical damage to birds or habitat from 

over-flights. Campsite management will 

continue to ensure that no detrimental 

impacts to overall willow flycatcher 

habitat quality. The Tribe will continue 

to ensure documentation of breeding 

and migratory use by willow 

flycatchers, pending availability funds. 

In this regard, the Hualapai Nation will 

continue to seek funding through Tribal 

sources, partners associated with the 

LCR MSCP, and outside grant sources. 

The Tribe will encourage recreational 

use awareness of the conservation needs 

of the willow flycatcher wherever 

possible. The Tribe will implement a 

cowbird-trapping program if parasitism 

becomes a problem in the future, 

dependent on available funds. 

As a result of the assurances, 

protections, and conservation benefit 

provided the southwestern willow 

flycatcher and its habitat on Hualapai 

Tribal lands described above, we are 

excluding this area from flycatcher 

critical habitat. 

Hoover to Parker Management Unit, AZ/ 

CA 

Fort Mojave Tribe 

The Fort Mojave Tribe sits alongside 

a segment of essential southwestern 

willow flycatcher habitat along the 

Colorado River in the Hoover to Parker 

Management Unit above Lake Havasu. 

The Fort Mojave Tribe currently has no 

known southwestern willow flycatcher 

territories, but these lands are within 

the geographic area occupied by the 

species due to the proximity of known 

southwestern willow flycatcher 

territories upstream and downstream, 

dispersal behavior, movements, and 

migratory habitats. Southwestern 

willow flycatchers are currently 

expected to use Fort Mojave lands along 

the Lower Colorado River for foraging 

and shelter during migration. In 

addition, flycatcher management on 

Tribal Land will work in conjunction 

with additional flycatcher management 

60954 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

throughout the LCR MSCP (see section 

describing Relationship of Critical 

Habitat to Approved Habitat 

Conservation Plans—Exclusions Under 

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

The Fort Mojave Tribe has completed 

a SWFMP. Within the budgetary 

constrains of the Fort Mojave Indian 

Tribe and the Service, the Tribe has 

committed to continue management to 

sustain the current value of saltcedar 

and willow and cottonwood stands that 

meet moist soil conditions necessary to 

maintain the species; to continue to 

utilize lands that do not have moist soil 

characteristics for territory and 

associated nesting purposes for 

agricultural and other cultural, 

economic and social needs; to carry out 

monitoring to determine species 

presence and vegetation status in 

cooperation with the Service; and to 

continue to provide wildfire response 

and law enforcement to protect habitats 

having moist soil conditions of value for 

feeding within a nesting area and 

similarly protect native cottonwood, 

willow, and mesquite habitats to benefit 

the southwestern willow flycatcher. 

As a result of the assurances, 

protections, and conservation benefit 

provided the southwestern willow 

flycatcher and its habitat on Fort Mojave 

Tribal lands described above, we are 

excluding this area from flycatcher 

critical habitat. 

Chemehuevi Tribe 

The Chemehuevi Tribe sits alongside 

a segment of essential southwestern 

willow flycatcher habitat along the 

Colorado River on the west side of the 

channel in the Hoover to Parker 

Management Unit adjacent to the 

Colorado River and Lake Havasu. The 

Chemehuevi Tribe currently has no 

known southwestern willow flycatcher 

territories, but these lands are within 

the geographic area occupied by the 

species due to the proximity of known 

southwestern willow flycatcher 

territories upstream and downstream, 

dispersal behavior, movements, and 

migratory habitats. Southwestern 

willow flycatchers are currently 

expected to use Chemhuevi lands along 

the Lower Colorado River for foraging 

and shelter during migration. In 

addition, flycatcher management on 

Tribal Land will work in conjunction 

with additional flycatcher management 

throughout the LCR MSCP (see section 

describing Relationship of Critical 

Habitat to Approved Habitat 

Conservation Plans—Exclusions Under 

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

The Chemehuevi Tribe has finalized a 

SWFMP, that within funding limits, 

commits the Tribe to continue to control 

wild fire, improve native plant presence 

through restoration projects, minimize 

impacts associated with recreational or 

other use along the river and lake 

shorelines, and collaborate with the 

Service to improve conditions for the 

flycatcher by discussing and 

implementing projects to reduce burro 

damage. The SWFMP identifies the 

management of riparian saltcedar and 

native willow, cottonwood, and 

mesquite to maximize native plant 

presence. Management will be done in 

cooperative work effort with the Service 

to identify restoration sites and provide 

early control response to wild fires that 

would result in no net loss or 

permanent modification that is 

detrimental to flycatcher or its habitat as 

specified by the Recovery Plan (USFWS 

2002). Any permanent river or lakeshore 

land use changes, such as recreational 

or other developments, will take habitat 

needs of the flycatcher into account and 

will be done in mutual consultation 

with the Service so as to design plans 

that minimize detrimental impacts to 

habitat requirements. The SWFMP 

identifies continued cooperation 

between the Tribe and Service to ensure 

continued management of or improve to 

habitat conditions. Continued 

monitoring of habitat and flycatchers 

and long-term restoration of native 

plants (e.g. cottonwood, mesquite, and 

willow), within funding constraints, 

will result in no net habitat loss or 

permanent habitat modification to avoid 

detrimental impacts to the flycatcher as 

specified in the Recovery Plan. 

As a result of the assurances, 

protections, and conservation benefit 

provided the southwestern willow 

flycatcher and its habitat on 

Chemehuevi Tribal lands described 

above, we are excluding this area from 

flycatcher critical habitat. 

Parker to Southerly International Border 

Management Unit, AZ/CA 

Colorado Indian Tribes (CRIT) 

We determined that the CRIT have 

areas that are essential to the 

conservation of the southwestern 

willow flycatcher along the Colorado 

River. The CRIT currently has no known 

southwestern willow flycatcher 

territories, but these lands are within 

the geographic area occupied by the 

species due to the proximity of known 

southwestern willow flycatcher 

territories upstream and downstream, 

dispersal behavior, movements, and 

migratory habitats. Southwestern 

willow flycatchers are currently 

expected to use CRIT lands along the 

Lower Colorado River for foraging and 

shelter during migration. The CRIT have 

been active in riparian restoration 

within tribal boundaries, where 

territories may become established. In 

addition, flycatcher management on 

Tribal Land will work in conjunction 

with additional flycatcher management 

throughout the LCR MSCP (see section 

describing Relationship of Critical 

Habitat to Approved Habitat 

Conservation Plans—Exclusions Under 

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

The Colorado River Indian Tribes 

have submitted a final SWFMP, which 

describes the protections and assurances 

for the flycatcher. The SWFMP 

identifies schedules for breeding habitat 

surveys and monitoring flycatcher 

nesting activity. The SWFMP also 

identifies the assessment, identification, 

and protection of flycatcher migration 

habitat. The SWFMP identifies 

protecting breeding habitat with the 

Ahakhav Tribal Preserve and in any 

areas established for flycatchers with 

the LCR MSCP. Seasonal closures of 

occupied habitat during the breeding 

season may be necessary and 

established by the CRIT. Protection of 

flycatcher habitat from fire is 

established in the SWFMP, as well as 

protections from other possible stressors 

such as overgrazing, recreation, and 

development. 

As a result of the assurances, 

protections, and conservation benefit 

provided the southwestern willow 

flycatcher and its habitat on CRIT lands 

described above, we are excluding this 

area from flycatcher critical habitat. 

Quechan (Fort Yuma) Indian Tribe 

We determined that the Quechan 

Tribe has areas that are essential to the 

conservation of the southwestern 

willow flycatcher along the Colorado 

River near the City of Yuma. The 

Quechan Tribe currently has no known 

southwestern willow flycatcher 

territories, but these lands are within 

the geographic area occupied by the 

species due to the proximity of known 

southwestern willow flycatcher 

territories upstream and downstream, 

dispersal behavior, movements, and 

migratory habitats. Southwestern 

willow flycatchers are currently 

expected to use Quechan lands along 

the Lower Colorado River for foraging 

and shelter during migration. In 

addition, flycatcher management on 

Tribal Land will work in conjunction 

with additional flycatcher management 

throughout the LCR MSCP (see section 

describing Relationship of Critical 

Habitat to Approved Habitat 

Conservation Plans—Exclusions Under 

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

The Quechan Tribe has completed a 

SWFMP. The objectives of the SWFMP 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60955 

specifically address and present 

assurances for southwestern willow 

flycatcher habitat conservation 

measures. The Tribe will manage 

riparian saltcedar that is intermixed 

with cottonwood, willow, mesquite, and 

arrowweed to maximize potential value 

for use by flycatchers for nesting. Any 

permanent land use changes for 

recreation or other reasons will consider 

the biological needs of the flycatcher 

and support flycatcher conservation 

needs as long as consistent with Tribal 

cultural and economic needs. The Tribe 

will consult with the FWS to develop/ 

design plans that minimize impacts to 

habitat requirements for the flycatcher. 

The Tribe will establish collaborative 

relationships with the FWS to benefit 

the flycatcher including monitoring for 

flycatcher presence and habitat 

condition, all within the constraints of 

available funds to the Tribe. These goals 

and objectives will result in no net 

habitat loss or permanent modification 

to habitat values as specified within the 

Recovery Plan (USFWS 2002). 

As a result of the assurances, 

protections, and conservation benefit 

provided the southwestern willow 

flycatcher and its habitat on Quechan 

Tribal lands described above, we are 

excluding this area from flycatcher 

critical habitat. 

Upper Gila Management Unit, AZ 

San Carlos Apache Tribe 

The San Carlos Apache Tribe has 

completed a SWFMP. 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. 

The San Carlos Apache Tribes’

SWFMP provides assurances and a 

conservation benefit to the southwestern 

willow flycatcher. Implementation of 

the SWFMP will result in protecting all 

known flycatcher habitat on San Carlos 

Tribal Land and assure no net habitat 

loss or permanent modification will 

result. All habitat restoration activities 

(whether it is to rehabilitate or restore 

native plants) will be conducted under 

reasonable coordination with the 

Service. All reasonable measures will be 

taken to ensure that recreational 

activities do not result in a net habitat 

loss or permanent modification. All 

reasonable measures will be taken to 

conduct livestock grazing activities 

under the guidelines established in the 

Recovery Plan (USFWS 2002). Within 

funding limitations and under 

confidentiality guidelines established by 

the Tribe, the Tribe will cooperate with 

the Service to monitor and survey 

habitat for breeding and migrating 

flycatchers, conduct research, and 

perform habitat restoration, cowbird 

trapping, or other beneficial flycatcher 

management activities. 

As a result of the assurances, 

protections, and conservation benefit 

provided to the southwestern willow 

flycatcher and its habitat on San Carlos 

Apache Tribal lands described above, 

we are excluding this area from 

flycatcher critical habitat. 

Verde Management Unit, AZ 

Yavapai-Apache Nation 

We determined that the YavapaiApache Nation has areas that are 

essential to the conservation of the 

southwestern willow flycatcher along 

the Verde River in AZ. The YavapaiApache Nation currently has no known 

southwestern willow flycatcher 

territories, but these lands are within 

the geographic area occupied by the 

species due to the proximity of known 

southwestern willow flycatcher 

territories upstream and downstream, 

dispersal behavior, movements, and 

migratory habitats. Southwestern 

willow flycatchers are currently 

expected to use Yavapai-Apache lands 

along the Verde River for foraging and 

shelter during migration. 

The Yavapai-Apache Nation has 

completed a SWFMP. The objectives of 

the SWFMP specifically address and 

present assurances for southwestern 

willow flycatcher habitat conservation 

measures. The Nation will, through 

zoning, Tribal ordinances and code 

requirements, and measures identified 

in the Recovery Plan, take all 

practicable steps to protect known 

southwestern willow flycatcher habitat 

located in the riparian areas located 

along the Verde River. The Nation will 

take all reasonable measures to assure 

that no net habitat loss or permanent 

modification of flycatcher habitat will 

result from recreational and road 

construction activities, or habitat 

restoration activities, and will take all 

reasonable steps to coordinate with the 

Service so that flycatcher habitat is 

protected. Within funding limitations 

and under confidentiality guidelines 

established by the Tribe, the Tribe will 

cooperate with the Service to monitor 

and survey habitat for breeding and 

migrating flycatchers, conduct research, 

and perform habitat restoration, cowbird 

trapping, or other beneficial flycatcher 

management activities. 

As a result of the assurances, 

protections, and conservation benefit 

provided the southwestern willow 

flycatcher and its habitat on YavapaiApache Tribal lands described above, 

we are excluding this area from 

flycatcher critical habitat. 

Middle Rio Grande Management Unit, 

NM 

Pueblo of Isleta 

The Pueblo of Isleta has amended its 

riverine management plan to include 

the southwestern willow flycatcher. The 

main objective of the flycatcher portion 

of this plan is to protect, conserve, and 

promote the management of the 

southwestern willow flycatcher and its 

associated habitat within the Pueblo’s 

boundaries. 

The Pueblo of Isleta’s Management 

Plan focuses on identifying the 

distribution and abundance of breeding 

flycatchers, their reproductive success, 

and reducing stressors. Cattle grazing is 

not allowed in the riparian area. Fire 

management will be conducted to 

protect flycatcher habitat. Management 

of flycatcher habitat includes protecting 

occupied habitat, maintaining native 

vegetation, and preventing habitat 

fragmentation. 

As a result of the assurances, 

protections, and conservation benefit 

provided the southwestern willow 

flycatcher and its habitat on Pueblo 

lands described above, we are excluding 

this area from flycatcher critical habitat. 

San Diego Management Unit, CA 

La Jolla Band of Luisen ̃o Indians 

The San Luis Rey (approximately 5 

km/8 mi) flows through the Lo Jolla 

Band of Indian Tribal Lands in northern 

San Diego County, CA. The Tribe has 

identified that river flow is controlled 

by Lake Henshaw Dam that can 

sometimes, due to drought, cause 

interruptions in flow and possibly limit 

the development of riparian habitat and 

success for species such as the 

southwestern willow flycatcher. This 

section of stream was proposed as 

critical habitat. The La Jolla Tribe 

currently has no known southwestern 

willow flycatcher territories, but these 

lands are within the geographic area 

occupied by the species due to the 

proximity of known southwestern 

willow flycatcher territories, upstream 

and downstream, dispersal behavior, 

movements, and migratory habitats. 

Southwestern willow flycatchers are 

currently expected to use La Jolla lands 

along the San Luis Rey for foraging and 

shelter during migration. 

60956 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

The Tribe has described a collection 

of measures, protections, and efforts 

they are and will be undertaking to 

protect riparian habitat for the 

southwestern willow flycatcher. The 

Tribe maintains permanent staff to 

address environmental issues, of which 

a Master’s level biologist is employed. 

The Tribe will work to maintain open 

space along the river, with a particular 

emphasis on the western 2 km/3.5 mi 

stretch of stream. The Tribe is working 

to establish this piece of river as a 

reserve for environmental and cultural 

purposes. Management of native 

vegetation and removal of exotic 

vegetation is occurring that could 

improve the quality and abundance of 

native species, and/or decrease the risk 

of wildfire in the riparian area. They are 

also actively reducing the impact of 

recreation in riparian areas by 

continuing to educate Tribal Members 

through outreach programs and 

newsletters. Tribal staff are also 

developing brochures to provide to 

campground visitors to encourage good 

stewardship and to educate them on 

how to reduce impacts to the land. 

Additionally they are working to 

discourage use of off-road vehicles in 

riparian areas through education, 

movement of roads, closures, and 

development of Tribal ordinances. The 

Tribe will explore future opportunities 

for research to determine how to best 

manage for flycatchers. For example, 

they indicated that it may be necessary 

to initiate a cowbird trapping program if 

appropriate. 

As a result of the assurances, 

protections, and conservation benefit 

provided the southwestern willow 

flycatcher and its habitat on La Jolla 

Tribal Lands through maintenance of 

open space, management, and 

protections, we are excluding this area 

from flycatcher critical habitat. 

Rincon Tribe 

The San Luis Rey River (roughly 3 

km/1.8 mi) flows through Rincon Tribal 

Lands in northern San Diego County, 

CA, just downstream from La Jolla 

Tribal Land. The entire section of 

stream was proposed as critical habitat. 

The Rincon Tribe currently has no 

known southwestern willow flycatcher 

territories, but these lands are within 

the geographic area occupied by the 

species due to the proximity of known 

southwestern willow flycatcher 

territories, upstream and downstream, 

dispersal behavior, movements, and 

migratory habitats. Southwestern 

willow flycatchers are currently 

expected to use Rincon lands along the 

San Luis Rey River for foraging and 

shelter during migration. 

The Tribe has completed a plan that 

addresses potential threats to flycatcher 

habitat through implementation of a 

variety of protective measures. The 

Tribe will monitor and remove 

introduced exotic plants that could 

reduce the quality and abundance of 

native species, and/or increase the risk 

of wildfire in the riparian. They will 

exclude activities in the floodplain 

which could remove or reduce the 

quality of riparian habitat such as 

mining and livestock grazing. The Tribe 

will exclude unauthorized recreational 

uses and off-road vehicle use. Signs, 

boundaries, and/or other measures will 

be taken to educate the public and 

prevent unauthorized recreational use. 

The Tribe will dedicate funding to 

this effort and report to the Service its 

annual progress. The Tribe will 

coordinate with the Service on whether 

the Plan requires updating. The Tribe 

hopes to incorporate these activities into 

a formalized HCP that is targeted for 

completion in 2006. In the event that a 

decision is made to not complete the 

HCP, this Plan will be revised and 

adopted for another 30 years. 

As a result of the assurances, 

protections, and conservation benefit 

provided the southwestern willow 

flycatcher and its habitat on Rincon 

Tribal Lands through implementation of 

their management plan, we are 

excluding this area from flycatcher 

critical habitat. 

(1) Benefits of Inclusion for Tribal Lands 

Few additional benefits would be 

derived from including these Tribal 

lands in a flycatcher critical habitat 

designation beyond what will be 

achieved through the implementation of 

their management plans. The principal 

benefit of any designated critical habitat 

is that activities in and affecting such 

habitat require consultation under 

section 7 of the Act. Such consultation 

would ensure that adequate protection 

is provided to avoid destruction or 

adverse modification of critical habitat. 

However, we conclude that few 

regulatory benefits to the flycatcher 

would be gained from a designation of 

critical habitat on these Tribal lands 

because, as described above, these 

Tribes are already managing their lands 

consistent with the Recovery Plan. 

When we review projects pursuant to 

section 7 for the flycatcher we review 

them for their consistency with the 

Recovery Plan. Therefore, consultations 

would not be materially different 

without a designation of critical habitat 

since we would use a similar approach 

in this case for both the jeopardy and 

adverse modification analyses. Also, 

where there is consistency with the 

Recovery Plan, it would be highly 

unlikely that the consultation would 

result in a determination of adverse 

modification. Thus, as noted above, 

when the threshold for adverse 

modification is not reached, as noted 

above, additional conservation 

recommendations could result out of a 

consultation, but such measures would 

be discretionary on the part of the 

Federal agency. These Tribes have 

already agreed under the terms of their 

flycatcher management plans to protect 

flycatcher habitat, to ensure no net loss, 

to coordinate with the Service, and to 

conduct activities consistent with the 

Recovery Plan. Accordingly, we find the 

consultation process for a designation of 

critical habitat is unlikely to result in 

additional protections for the flycatcher 

on Tribal lands. 

Another possible benefit is that the 

designation of critical habitat can help 

to inform the Tribes/Pueblos regarding 

potential conservation value of an area, 

and may focus efforts by clearly 

delineating areas of high conservation 

value for the flycatcher. Any 

information about the flycatcher and its 

habitat that reaches a wide audience, 

including other parties engaged in 

conservation activities, would be 

considered valuable. These Tribes/ 

Pueblos are currently working with the 

Service to address habitat and 

conservation needs for the flycatcher. 

Additionally, we anticipate that these 

Tribes/Pueblos will continue to actively 

participate in working groups, and 

provide for the timely exchange of 

management information. The 

educational benefits important for the 

long-term survival and conservation of 

the flycatcher are being realized. 

Educational benefits will continue on 

these lands if they are excluded from 

the designation, because the 

management/conservation plans already 

recognize the importance of those 

habitat areas to the flycatcher. 

Additionally, we included these lands 

in the proposed and final rules as areas 

essential to the conservation of the 

southwestern willow flycatcher so 

information about their essential nature 

has been published through this 

rulemaking process. 

Another possible benefit is the 

additional funding that may be 

generated for habitat restoration or 

improvement by having an area 

designated as critical habitat. In some 

instances, having an area designated as 

critical habitat may improve the ranking 

a project receives during evaluation for 

funding. Tribes/Pueblos often require 

additional sources of funding in order to 

conduct wildlife-related activities. 

Therefore, having an area designated as 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60957 

critical habitat could improve the 

chances of Tribes receiving funding for 

flycatcher-related projects. However, the 

perceived restrictions of a critical 

habitat designation would likely have a 

more damaging effect to coordination 

efforts, possibly preventing actions that 

might maintain, improve, or restore 

habitat. Additionally, areas occupied by 

nesting, migrating, dispersing, or 

foraging flycatchers, as is the case here, 

also provide benefits when projects are 

evaluated for receipt of funding. 

For these reasons, then, we believe 

that designation of critical habitat 

would have few additional benefits 

beyond those that will result from 

continued consultation under the 

jeopardy standard. 

(2) Benefits of Exclusion 

The benefits of excluding these Tribal 

Lands from designated critical habitat 

are more significant. They include: (1) 

The advancement of our Federal Indian 

Trust obligations and our deference to 

tribes to develop and implement tribal 

conservation and natural resource 

management plans for their lands and 

resources, which includes the 

flycatcher; (2) the maintenance of 

effective working relationships to 

promote the conservation of the 

flycatcher and its habitat; (3) the 

allowance for continued meaningful 

collaboration and cooperation; (4) the 

provision of conservation benefits to 

riparian ecosystems and the flycatcher 

and its habitat that might not otherwise 

occur; and (5) the reduction or 

elimination of administrative and/or 

project modification costs as analyzed 

in the economic analysis. 

During the development of the 

flycatcher critical habitat proposal (and 

coordination for other critical habitat 

proposals), and other efforts such as 

development of the Southwestern 

Willow Flycatcher Recovery Plan, we 

have met and/or communicated with 

various Tribes/Pueblos to discuss how 

they might be affected by the regulations 

associated with flycatcher management, 

flycatcher recovery, and the designation 

of critical habitat. As such, we 

established relationships with Tribes/ 

Pueblos specific to flycatcher 

conservation. As part of our 

relationship, we provided technical 

assistance to each of these Tribes/ 

Pueblos to develop measures to 

conserve the flycatcher and its habitat 

on their lands. These measures are 

contained within the management/ 

conservation plans that we have in our 

supporting record for this decision (see 

discussion above). These proactive 

actions were conducted in accordance 

with 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 these Tribes/Pueblos 

should be the governmental entities to 

manage and promote the conservation of 

the flycatcher on their lands. During our 

communication with these Tribes/ 

Pueblos, we recognized and endorsed 

their fundamental right to provide for 

tribal resource management activities, 

including those relating to riparian 

ecosystems. 

The designation of critical habitat on 

these Tribal or Pueblo lands would be 

expected to adversely impact our 

working relationship with these Tribes. 

In fact, during our discussions with 

these Tribes and from comments 

received, many informed us that critical 

habitat would be viewed as an intrusion 

on their sovereign abilities to manage 

natural resources in accordance with 

their own policies, customs, and laws. 

To this end, we found that each Tribe 

would prefer to work with us on a 

government-to-government basis. For 

these reasons, we believe that our 

working relationships with these Tribes 

would be better maintained if they are 

excluded from the designation of critical 

for the flycatcher. We view this as a 

substantial benefit since we have 

developed a cooperative working 

relationship with the Tribes and 

Pueblos for the mutual benefit of the 

conservation of the southwestern 

willow flycatcher and other threatened 

and endangered species. 

We indicated in the proposed rule 

(October 12, 2004; 69 FR 60706) that our 

final decision regarding the designation 

of critical habitat on Tribal Lands, 

would consider our relationship with 

Tribes and/or Pueblos and whether they 

developed a flycatcher specific 

management plan. We identified that 

the Colorado River Indian Tribes and 

Hualapai Tribe had draft plans and the 

Santa Ana Pueblo had developed a Safe 

Harbor Agreement with us for 

flycatchers. Santa Ana Pueblo lands 

were not included in the proposal. We 

also discussed our continued 

cooperation with Tribes and Pueblos 

during the comment period on the 

development of Management Plans. 

During the comment period, we 

received input from many Tribes and 

BIA offices expressing the view that 

designating critical habitat for the 

flycatcher on Tribal land would 

adversely affect the Service’s working 

relationship with all Tribes. Many noted 

the beneficial cooperative working 

relationships between the Service and 

Tribes have assisted in the conservation 

and recovery of listed species and other 

natural resources. They indicated that 

critical habitat designation on these 

Tribes or Pueblos would amount to 

additional Federal regulation of 

sovereign Nations’ lands, and would be 

viewed as an unwarranted and 

unwanted intrusion into Tribal natural 

resource programs. We conclude that 

our working relationships with these 

Tribes on a government-to-government 

basis have been extremely beneficial in 

implementing natural resource 

programs of mutual interest, and that 

these productive relationships would be 

compromised by critical habitat 

designation of these Tribal lands. 

In addition to management/ 

conservation actions described for the 

conservation of the flycatcher, we 

anticipate future management/ 

conservation plans to include 

conservation efforts for other listed 

species and their habitat. We believe 

that many Tribes and Pueblos are 

willing to work cooperatively with us to 

benefit other listed species, but only if 

they view the relationship as mutually 

beneficial. Consequently, the 

development of future voluntarily 

management actions for other listed 

species will likely be contingent upon 

whether these Tribal lands are 

designated as critical habitat for the 

flycatcher. Thus, a benefit of excluding 

these lands would be future 

conservation efforts that would benefit 

other listed species. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, the benefits of including 

these Tribes and Pueblos in the critical 

habitat designation are limited to a 

potential benefit gained through the 

requirement to consult under section 7 

and consideration of the need to avoid 

adverse modification of critical habitat 

and potential educational benefits. 

However, as discussed in detail above, 

we believe these benefits are provided 

for through other mechanisms. The 

benefits of excluding these areas from 

being designated as critical habitat for 

the flycatcher are more significant, and 

include encouraging the continued 

implementation of the tribal 

management/conservation measures 

such as monitoring, survey, restoration, 

protection, and fire-risk reduction 

activities that are planned for the future 

or are currently being implemented. 

These programs will allow the Tribes to 

manage their natural resources to 

60958 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

benefit riparian ecosystems for the 

flycatcher, without the perception of 

Federal Government intrusion. This 

philosophy is also consistent with our 

published policies on Native American 

natural resource management. The 

exclusion of these areas will likely also 

provide additional benefits to the 

flycatcher and other listed species that 

would not otherwise be available due to 

the Service’s ability to encourage and 

maintain cooperative working 

relationships with other Tribes and 

Pueblos. We find that the benefits of 

excluding these areas from critical 

habitat designation outweigh the 

benefits of including these areas. 

As noted above, the Service may 

exclude areas from the critical habitat 

designation only if it is determined, 

‘‘based on the best scientific and 

commercial data available, that the 

failure to designate such area as critical 

habitat will result in the extinction of 

the species concerned.’’ Here, we have 

determined that exclusion of these 

Tribes and Pueblos from the critical 

habitat designation will not result in the 

extinction of the flycatcher. First, 

activities on these areas that may affect 

the flycatcher will still require 

consultation under section 7 of the Act. 

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 listed species. Therefore, 

even without critical habitat designation 

on these lands, activities that occur on 

these lands cannot jeopardize the 

continued existence of the flycatcher. 

Second, each of the Tribes have 

committed to protecting and managing 

according to their management/ 

conservation plans and natural resource 

management objectives. In short, the 

Tribes have committed to greater 

conservation measures on these areas 

than would be available through the 

designation of critical habitat. With 

these natural resource measures, we 

have concluded that this exclusion from 

critical habitat will not result in the 

extinction of the flycatcher, chiefly 

because the management/conservation 

plans are generally based on the 

management tenets of the Recovery 

Plan. Accordingly, we have determined 

that these Tribes and Pueblos should be 

excluded under subsection 4(b)(2) of the 

Act because the benefits of excluding 

these lands from critical habitat for the 

flycatcher outweigh the benefits of their 

inclusion and the exclusion of these 

lands from the designation will not 

result in the extinction of the species. 

Upper Rio Grande Management Unit 

San Ildefonso Pueblo 

We have worked with San Ildefonso 

Pueblo (Pueblo) to consolidate 

information on their past, present, and 

future voluntary measures, restoration 

projects, and management to conserve 

the southwestern willow flycatcher and 

its habitat on their lands. We have 

determined, pursuant to section 4(b)(2) 

of the Act, that we will exclude the 

lands of this Pueblo, in the Upper Rio 

Grande Management Unit, from the final 

designation of critical habitat. As 

described in our 4(b)(2) analysis below, 

we have reached this determination 

because of our effective working 

relationship with the Pueblo and the 

benefits of excluding their lands from 

the final critical habitat designation 

outweigh the benefits of designating 

their lands. 

San Ildefonso Pueblo is in Santa Fe 

County, approximately 37 km (23 mi) 

north of the city of Santa Fe. It 

encompasses approximately 10,602 ha 

(26,198 ac) in the Rio Grande valley, 

including approximately 434 ha (1,073 

ac) of the Rio Grande floodplain. On the 

Pueblo, water is diverted from the Rio 

Grande for an irrigation system that 

supports Tribal agricultural practices. 

Multiple-use practices of the river and 

riparian habitat resources are an 

essential component of Tribal activities 

and culture, and as a result, the Pueblo 

has taken steps to manage all the 

components of the riparian habitat 

(bosque) to ensure that it is intact for 

future generations. The need for bosque 

restoration on the Pueblo includes the 

fact that it is an area of wildland urban 

interface and current fuel levels in the 

riparian area pose a fire threat. Over the 

years, the bosque area has been 

overtaken by non-native plant species 

that have created a hazardous potential 

for wildland fire within the urban 

interface. The removal of non-native 

vegetation with the planting of native 

vegetation and floodplain rehabilitation 

are being conducted by the Pueblo. 

Flycatcher surveys are conducted by the 

Bureau of Indian Affairs (BIA) before the 

implementation of projects and they 

have not detected any flycatchers in the 

project areas (Norman Jojola, BIA 

Northern Pueblos Agency, pers. comm., 

August 24, 2005). The Pueblo’s longterm management objectives include 

efforts to reestablish and maintain 

sustainable native plant communities in 

the Rio Grande floodplain and improve 

habitat, including wetland restoration, 

for culturally important plant and 

wildlife species, including the 

southwestern willow flycatcher. 

Since 1995, we have been working 

with the Pueblo and the BIA on 

wildlife-related projects. We established 

and maintain a cooperative working 

relationship with the BIA and their 

consultants when they requested our 

involvement and review of 

environmental assessments for Pueblo 

projects that included evaluations of 

habitat for flycatchers. We reviewed the 

project proposals, environmental 

assessments, and resulting 

determinations, and all but one of the 

proposed projects were determined to 

have ‘‘no effect’’ or to have an 

insignificant and discountable effect. 

The one project that was a ‘‘may effect’’

is described below. 

The project that had the 

determination of ‘‘may affect, not likely 

to adversely affect’’ the flycatcher 

(Service Cons. #2–22–99–I–187, 1999), 

involved the installation of exploratory 

wells in the bosque, and resulted in an 

informal consultation for the flycatcher 

and its habitat. Surveys in the project 

area did not detect any flycatchers and 

a 10 by 15 m (32 by 50 ft) patch of 

potential flycatcher habitat was not 

affected by the project. In 2001, we also 

provided technical advice to the BIA 

and the Pueblo for upcoming bosque 

restoration projects (Norman Jojola, BIA, 

August 24, 2005). It was determined that 

nesting habitat did not exist at the 

proposed project sites. Surveys 

conducted by BIA did not detect any 

flycatchers at the sites. 

A 2003–2005 project that we 

consulted on involves approximately 

749 acres along the east side of the Rio 

Grande within the bosque corridor of 

San Ildefonso Pueblo (Service 2003, 

2004). The project will restore native 

riparian vegetation and the floodplain 

by removal of non-native plants and the 

enhancement of native vegetation and 

wetlands. The BIA and the Pueblo 

consulted with us to address concerns 

about the flycatcher and its habitat at 

this project site. Flycatcher surveys 

were conducted and no flycatchers were 

detected. It was determined that the 

flycatcher nesting habitat did not exist 

at the project site and the effect to 

migration habitat would be insignificant 

and discountable. 

The bosque is important to the 

traditional life of the people of the 

Pueblo of San Ildefonso. The Pueblo is 

managing the vegetation and water 

components of the bosque to ensure its 

integrity for the future. They were 

awarded a Pub. Law 93–638 contract in 

2003 to implement the development of 

a reservation-wide Integrated Resource 

Management Plan. This process 

provides the opportunity for the Pueblo 

to address its resources as a whole and 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60959 

provide a holistic management 

approach which would include 

threatened and endangered species and 

their habitat. As a sovereign entity they 

seek to continue to protect and manage 

their resources according to their 

traditional and cultural practices, with 

consideration given to the prevention of 

wildfires given that it is an area of 

wildland urban interface (San Ildefonso, 

August 22, 2005). 

The Pueblo request that their land be 

excluded from the designation of critical 

habitat in that they want the Service to 

recognize their sovereign status and 

their right to manage their own 

resources. They consider the 

designation of critical habitat on their 

land as a total disregard of the Service’s 

trust responsibility to the Tribe and 

their sovereign status (BIA Northern 

Pueblos Agency, July 11, 2005). They 

recognize the importance of their land 

as a migration area for the flycatcher 

and they understand that due to their 

proximity to known territories that their 

lands were included in the proposal as 

essential habitat, which includes the 

potential for dispersal of flycatchers and 

future development of nesting habitat. 

However, their traditions and culture 

have a holistic approach to resource 

management and they want the Service 

to recognize this and exclude the Pueblo 

from the designation of critical habitat. 

(1) Benefits of Inclusion 

The principal benefit of any 

designated critical habitat is that 

activities in and affecting such habitat 

require consultation under section 7 of 

the Act if a Federal action is involved. 

Such consultations ensure that adequate 

protection is provided to avoid 

destruction or adverse modification of 

critical habitat. The section 7 

conferencing and consultations 

involving projects on lands of the San 

Ildefonso Pueblo for the flycatcher have 

all been informal. Effects to the 

flycatcher from Pueblo projects have 

been insignificant and discountable 

with determinations of ‘‘no effect’’ or 

‘‘may affect, not likely to adversely 

affect’’ the flycatcher and its habitat. 

These determinations resulted from the 

beneficial nature of the projects 

proposed to the flycatcher (e.g., 

restoration and fuels reduction projects). 

Given that lands of the San Ildefonso 

Pueblo are managed in a way that 

provide benefits to the flycatcher, it is 

highly unlikely that projects would be 

considered that would result in a 

depreciable diminishment or long-term 

reduction of the capability of the habitat 

to provide for areas of migration and 

dispersal. To the contrary, activities 

occurring on these lands will provide 

benefits to the flycatcher by restoring, 

improving, and protecting its habitat. 

Thus we conclude that few regulatory 

benefits to the flycatcher would be 

gained from a designation of critical 

habitat on the Pueblo lands because, as 

described above, and as evidence by the 

consultation history, the Pueblo is 

already managing their lands for the 

benefit of the flycatcher and its habitat. 

Furthermore, based on the consultation 

history and the beneficial nature of the 

projects undertaken by the Pueblo, it 

would be highly unlikely that the 

consultation would result in a 

determination of adverse modification. 

Thus, as described in the ‘‘General 

Principles of Section 7 Consultations 

Used in the 4(b)(2) Balancing Process’’

section above, when the threshold for 

adverse modification is not reached, 

additional conservation 

recommendations could result out of a 

consultation, but such measures would 

be discretionary on the part of the 

Federal agency. 

Another possible benefit is that the 

designation of critical habitat can serve 

to educate the public regarding the 

potential conservation value of an area, 

and this may focus and contribute to 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for certain species. 

Any information about the flycatcher 

and its habitat that reaches a wide 

audience, including other parties 

engaged in conservation activities, 

would be considered valuable. 

However, the Pueblo is already working 

with the Service to understand the 

habitat needs of the species. Further, the 

Pueblo lands were included in the 

proposed designation, which itself has 

reached a wide audience, and has thus 

provided information to the broader 

public about the conservation value of 

this area. Thus, the educational benefits 

that might follow critical habitat 

designation, such as providing 

information to the BIA or the Pueblo on 

areas that are important for the longterm survival and conservation of the 

species, have already been provided by 

proposing the area as critical habitat. 

For these reasons, then, we believe that 

designation of critical habitat would 

have few, if any, additional benefits 

beyond those that will result from 

continued consultation for the presence 

of the species. 

(2) Benefits of Exclusion 

The benefits of excluding San 

Ildefonso Pueblo from designated 

critical habitat are significant. The 

proposed critical habitat designation 

included approximately 434 ha (1,073 

ac) of Rio Grande floodplain within the 

Pueblo boundaries. We believe that the 

significant benefits that would be 

realized by forgoing the designation of 

critical habitat on this area include: (1) 

The furtherance of our Federal Trust 

obligations and our deference to the 

Pueblo to develop and implement Tribal 

conservation and natural resource 

management plans for their lands and 

resources within the Rio Grande 

ecosystem, which includes the 

flycatcher and its habitat; (2) the 

continuance and strengthening of our 

effective working relationships with the 

Pueblo to promote the conservation of 

the flycatcher and its habitat; (3) the 

allowance for continued meaningful 

collaboration and cooperation in 

surveying as we work towards recovery 

of the species; and (4) the provision of 

conservation benefits to the Rio Grande 

ecosystem and the flycatcher and its 

habitat that might not otherwise occur. 

As discussed above, we met with San 

Ildefonso Pueblo to discuss how they 

might be affected by the designation of 

critical habitat. The meetings with the 

Pueblo were conducted in accordance 

with Secretarial Order 3206; 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 the Pueblos should be 

the governmental entities that manage 

and promote the conservation of the 

flycatcher on their lands and this was 

stated during meetings. We also 

recognized and endorsed their resource 

management activities, including those 

relating to the Rio Grande ecosystem. 

Much of our discussions centered on 

providing technical advice/assistance to 

the Pueblo to continue their natural 

resource management activities that 

provide benefits to the flycatcher. 

Our meetings with the Pueblo are a 

component of our effective working 

relationship with them. We established 

a working relationship in respect to the 

flycatcher with the earlier informal 

consultations discussed above. We are 

maintaining the relationship by means 

of informal meetings that offer 

information sharing and technical 

advice/assistance about project effects to 

flycatchers and recommended 

conservation measures. 

We find that conservation benefits 

(e.g., flycatcher surveys and habitat 

restoration enhancement) are being 

provided to the flycatcher and its 

habitat through our cooperative working 

relationship with the San Ildefonso 

Pueblo. During our discussions with the 

Pueblo we were informed that critical 

60960 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

habitat would be viewed as an intrusion 

on their sovereign abilities to manage 

natural resources in accordance with 

their own policies, customs, and laws. 

To this end, we found that the Pueblo 

would prefer to work with us on a 

Government-to-Government basis. For 

these reasons, we believe that our 

working relationship with the Pueblo 

would be maintained if they are 

excluded from the designation of critical 

habitat for the flycatcher. 

The consultation history, 

conservation, restoration, and 

management information submitted to 

us by the Pueblo documents that 

meaningful collaborative and 

cooperative work for the flycatcher and 

its habitat will continue within their 

lands. These commitments demonstrate 

the willingness of the Pueblo to work 

cooperatively with us toward 

conservation efforts that will benefit the 

flycatcher. The Pueblo has committed to 

several ongoing and future management, 

restoration, enhancement, and survey 

activities and we believe that the results 

of these activities will promote longterm protection and conserve the 

flycatcher and its habitat within the 

Pueblo lands. The benefits of excluding 

this area from critical habitat will 

encourage the continued cooperation 

and development of data-sharing and 

management plans. If this area is 

designated as critical habitat, we believe 

it is unlikely that sharing of information 

would occur. 

Educational benefits will be provided 

to the Pueblo lands if they are excluded 

from the designation because their past 

and ongoing restoration projects, with 

management goals, provide for 

conservation benefits above any that 

would be provided by designating 

critical habitat. For example, the 

educational aspects are likely greater for 

this area if they are not included in the 

designation because the Pueblo will 

continue to work cooperatively with the 

Service to restore and enhance their Rio 

Grande floodplain with habitat that will 

contribute to the recovery of the species. 

Surveys that are conducted for the 

presence or absence of flycatchers at 

projects sites will record migration use 

of the area and the participation by 

tribal biologist in the survey process 

adds to educational benefits and 

conservation of the species. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, the benefits of including 

the Pueblo in critical habitat are small, 

and are limited to minor educational 

benefits. The benefits of excluding these 

areas from critical habitat for the 

flycatcher are more significant, and 

include encouraging the continued 

development and implementation of 

special management measures such as 

surveys, enhancement, and restoration 

activities that are planned for the future 

or are currently being implemented. 

These activities and projects will allow 

the Pueblo to manage their natural 

resources to benefit the Upper Rio 

Grande Management Unit for the 

flycatcher, without the perception of 

Federal Government intrusion because 

of the designation of critical habitat on 

their land. This philosophy is also 

consistent with our published policies 

on Native American natural resource 

management. The exclusion of this area 

will likely also provide additional 

benefits to the species that would not 

otherwise be available to encourage and 

maintain cooperative working 

relationships. We find that the benefits 

of excluding this area from critical 

habitat designation outweigh the 

benefits of including this area. 

We believe that exclusion of San 

Ildefonso Pueblo land will not result in 

extinction of the species. Current 

records do not document any nesting 

habitat on the Pueblo but recognize it as 

a migration corridor and potential area 

for dispersal. The Pueblo has committed 

to protecting and managing according to 

their tribal and cultural management 

plans and are in the process of creating 

an IRMP that includes management for 

threatened and endangered species. In 

short, the Pueblo has committed to 

greater conservation measures on their 

land than would be available through 

the designation of critical habitat. With 

these natural resource measures, we 

have concluded that this exclusion from 

critical habitat will not result in the 

extinction of the flycatcher. 

Accordingly, we have determined that 

the Pueblo lands of San Ildefonso 

should be excluded under subsection 

4(b)(2) of the Act because the benefits of 

exclusion outweigh the benefits of 

inclusion and will not cause the 

extinction of the species. 

Santa Clara Pueblo 

During the open comment period, we 

worked with Santa Clara Pueblo 

(Pueblo) to consolidate information on 

their past, present, and future voluntary 

measures, restoration projects, and 

management to conserve the 

southwestern willow flycatcher and its 

habitat on their lands. We have 

determined that the lands of this 

Pueblo, in the Upper Rio Grande 

Management Unit, will not be 

designated as critical habitat. As 

described in our section 4(b)(2) analysis 

below, we have reached this 

determination because the benefits of 

excluding their lands from the final 

critical habitat designation outweigh the 

benefits of designating their lands. 

Santa Clara Pueblo lies within the 

proposed designated critical habitat for 

the flycatcher in the Upper Rio Grande 

Management Unit. The Pueblo is located 

on the west bank of the Rio Grande 

approximately 48 km (30 mi) north of 

the City of Santa Fe in northern New 

Mexico. The Pueblo encompasses more 

than 21,449 ha (53,000 ac) of diverse 

vegetative communities, including 

approximately 714 ha (1,764 ac) of Rio 

Grande woodland/shrubs (bosque). 

Approximately 10 km (6 mi) of the Rio 

Grande corridor is a heavily 

‘‘checkerboarded’’ area with private 

non-Indian in-holdings now belonging 

to the City of Espanola, the result of 

non-Indian encroachment that was 

sanctioned by the Federal government 

in the 1920s and 1930s. 

The Rio Grande is an integral part of 

the Pueblo’s history, culture, and 

continued preservation as a homeland. 

They view all of their natural resources, 

including the Rio Grande bosque, as 

important to the survival of the Santa 

Clara people. Many of the various 

vegetative communities within the 

Pueblo and the innumerable wildlife 

species they support have significant 

traditional and spiritual value to the 

tribal people. Because of this and 

because the Pueblo maintains the 

sovereign right to manage all the 

resources within their boundaries, the 

Tribal Council of Santa Clara Pueblo 

made a commitment in 2000, that was 

extended in 2001, to develop an 

Integrated Resource Management Plan 

(IRMP) that addresses multi-use, 

enhancement, and management of their 

natural resources. Progress is being 

made in completing the IRMP but it is 

not yet complete. The Pueblo has 

submitted a copy of the Tribal Council 

Resolution as documentation of their 

commitment to ensure that as part of the 

IRMP process they ‘‘consider traditional 

and long-standing uses of tribal lands 

and utilize appropriate land 

management protocols while ensuring 

that culturally and biologically sensitive 

areas, plants, animals, and other 

resources will be provided the highest 

levels of protection.’’ (Santa Clara 

Pueblo Tribal Council Resolution No. 

2001–23; July 18, 2001). The IRMP, in 

its current draft form, was not submitted 

during the open comment period 

because it is undergoing review from the 

Santa Clara Pueblo community (Santa 

Clara Pueblo, July 12, 2005). They 

believe it would be inappropriate not to 

follow the community’s internal review 

system, which experienced delays due 

to staff changes. Nonetheless, the Pueblo 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60961 

has already sought and received over 

$600,000 in funds to complete the IRMP 

and has contributed approximately 

4,500 staff hours within the Pueblo 

toward development of the IRMP. 

Approximately 714 ha (1,764 ac) of 

Rio Grande bosque on Santa Clara 

Pueblo has become very susceptible to 

wildfire; changes in hydrology have 

encouraged the growth of vegetation 

that results in heavy fuel loads. The 

Pueblo had to contend with catastrophic 

wildfires just within the past decade. 

The ‘‘Tuesday Fire,’’ in the urban 

interface, burned approximately 61 ha 

(150 ac) of bosque in 1997; in 2004, the 

‘‘Black Mesa’’ fire burned additional 

bosque acres. Other fires that occurred 

in the area were: the ‘‘Oso Complex’’ in 

June 1998, the ‘‘Cerro Grande’’ in May 

2000, and bosque fires in the adjoining 

San Juan Pueblo. This susceptibility to 

wildfire has prompted Santa Clara 

Pueblo to undertake management 

activities along the bosque to protect the 

health and safety of the Tribal people. 

In conjunction with the comprehensive 

IRMP process, the Pueblo has 

undertaken projects to reduce the fire 

risk in the area. 

The main Pueblo village, the City of 

Espanola, and nearby non-Indian 

communities are located close to the 

river and therefore the bosque acres on 

Santa Clara Pueblo, which are proposed 

designated critical habitat for the 

flycatcher, are considered by the Bureau 

of Indian Affairs (BIA) and the Pueblo 

to be Wildland-Urban Interface (WUI) 

for purposes of implementation of the 

Federal government’s National Fire 

Plan. A key priority of the National Fire 

Plan is to reduce hazardous fuel loads 

in WUI areas in order to reduce the 

imminent danger to human life and 

property. However, the Pueblo 

recognizes the need for fuels reduction 

and habitat restoration to occur in small 

increments so as not to harm wildlife in 

the transition and has committed to this 

process (Santa Clara Pueblo, July 12, 

2005). 

The Pueblo has implemented fuel 

reduction and restoration in their 

bosque since 2001 and they have 

projects in various planning stages for 

the future. In 2001, fuel reduction and 

restoration took place on 64 ha (159 ac). 

After that, the Pueblo submitted a 

request to the BIA for additional funds 

to work on treatment and restoration of 

and additional 121 ha (298 ac). In 

addition, the Pueblo entered into an 

agreement with New Mexico 

Association of Conservation Districts 

and the East Rio Arriba and Water 

Conservation District for a two-year 

hazardous fuels treatment project which 

is in progress on 54 ha (133 ac). Finally, 

the Pueblo received approval from the 

U.S. Forest Service for an inter-tribal 

Collaborative Forest Restoration 

Proposal to treat and restore another 23 

ha (58 ac). As is evidenced here, Santa 

Clara Pueblo, for the past five years, has 

systematically planned and received 

funding to do WUI bosque management 

and habitat restoration along their 

bosque. 

The Pueblo and its consultants and 

the BIA have worked in close 

communication with the Service to 

address any impacts to the flycatcher 

and its habitat in connection with these 

projects (Service 2003). There have been 

informal meetings with Service staff and 

Pueblo staff that have resulted in a good 

working relationship. Another 

demonstration of this cooperative 

working relationship and the Pueblo’s 

efforts for conservation of the flycatcher 

is that, in 2005, three Tribal members 

participated in training, held at the 

Service’s Albuquerque Field Office, for 

conducting protocol surveys for the 

flycatcher. The Pueblo has also 

identified funding to conduct flycatcher 

surveys within their entire bosque for 

Spring of 2006. 

The Pueblo has pointed out that their 

commitments to manage the bosque are 

in keeping with the goals and 

techniques and guidelines for fire 

management and habitat restoration 

outlined in the Recovery Plan for the 

flycatcher (Santa Clara Pueblo, July 12, 

2005). Santa Clara’s commitment to 

protect the health, well-being, safety, 

and economy of their people is not 

isolated from the commitment to protect 

and restore the ecosystem with its 

wildlife species and habitat. They view 

the world holistically and their 

management and commitments will 

result in long-term benefits to the 

ecosystem upon which a diverse array 

of plants and wildlife depend, including 

the endangered southwestern willow 

flycatcher. 

(1) Benefits of Inclusion 

The principal benefit of any 

designated critical habitat is that 

activities in and affecting such habitat 

require consultation under section 7 of 

the Endangered Species Act if a Federal 

action is involved. Such consultations 

ensure that adequate protection is 

provided to avoid destruction or adverse 

modification of critical habitat. The 

section 7 conferencing and 

consultations involving Santa Clara 

Pueblo for the flycatcher have been 

informal. Effects to the flycatcher from 

Pueblo projects have been insignificant 

and discountable with determinations of 

‘‘no effect’’ to the flycatcher and its 

habitat (Santa Clara Pueblo, August 26, 

2005). These determinations resulted 

from the lack of presence of the 

flycatcher. 

Given that lands of the Santa Clara 

Pueblo are managed in a way that 

provide benefits to the flycatcher, it is 

highly unlikely that projects would be 

considered that would result in a 

depreciable diminishment or long-term 

reduction of the capability of the habitat 

to provide for areas of migration and 

dispersal. To the contrary, activities 

occurring on these lands will provide 

benefits to the flycatcher by restoring, 

improving, and protecting its habitat. 

Thus we conclude that few regulatory 

benefits to the flycatcher would be 

gained from a designation of critical 

habitat on the Pueblo lands because, as 

described above, and as evidence by the 

consultation history, the Pueblo is 

already managing their lands for the 

benefit of the flycatcher and its habitat. 

Furthermore, based on the consultation 

history and the beneficial nature of the 

projects undertaken by the Pueblo, it 

would be highly unlikely that the 

consultation would result in a 

determination of adverse modification. 

Thus, as described in the ‘‘General 

Principles of Section 7 Consultations 

Used in the 4(b)(2) Balancing Process’’

section above, when the threshold for 

adverse modification is not reached, 

additional conservation 

recommendations could result out of a 

consultation, but such measures would 

be discretionary on the part of the 

Federal agency. 

Another possible benefit is that the 

designation of critical habitat can serve 

to educate the public regarding the 

potential conservation value of an area, 

and this may focus and contribute to 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for certain species. 

Any information about the flycatcher 

and its habitat that reaches a wide 

audience, including other parties 

engaged in conservation activities, 

would be considered valuable. 

However, the Pueblo is already working 

with the Service to understand the 

habitat needs of the species and some of 

their biologists have participated in 

flycatcher survey training classes. 

Further, the Pueblo lands were included 

in the proposed designation, which 

itself has reached a wide audience, and 

has thus provided information to the 

broader public about the conservation 

value of this area. Thus, the educational 

benefits that might follow critical 

habitat designation, such as providing 

information to the BIA or the Pueblo on 

areas that are important for the longterm survival and conservation of the 

species, have already been provided by 

60962 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

proposing the area as critical habitat. 

For these reasons, then, we believe that 

designation of critical habitat would 

have few, if any, additional benefits 

beyond those that will result from 

continued consultation for the presence 

of the species. 

(2) Benefits of Exclusion 

The benefits of excluding Santa Clara 

Pueblo from designated critical habitat 

are significant. The proposed critical 

habitat designation included 

approximately 714 ha (1,764 ac) of Rio 

Grande woodland/shrubs (bosque) 

within the Pueblo boundaries. We 

believe that the significant benefits that 

would be realized by forgoing the 

designation of critical habitat on this 

area include: (1) The furtherance of our 

Federal Trust obligations and our 

deference to the Pueblo to develop and 

implement Tribal conservation and 

natural resource management plans for 

their lands and resources within the Rio 

Grande ecosystem, which includes the 

flycatcher and its habitat; (2) the 

continuance and strengthening of our 

effective working relationships with the 

Pueblo to promote the conservation of 

the flycatcher and its habitat, including 

future surveys; (3) the allowance for 

management and restoration in a WUI 

area that focuses on fire prevention, and 

human health and safety, and yet 

addresses conservation for the 

flycatcher; and (4) the provision of 

conservation benefits to the Rio Grande 

ecosystem and the flycatcher and its 

habitat that might not otherwise occur. 

As discussed above, we met with 

Santa Clara Pueblo to discuss how they 

might be affected by the designation of 

critical habitat. The meeting with the 

Pueblo was conducted in accordance 

with Secretarial Order 3206; 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 the Pueblos should be 

the governmental entities that manage 

and promote the conservation of the 

flycatcher on their lands. During our 

meetings with the Pueblo, we 

recognized and endorsed these resource 

management activities, including those 

relating to the Rio Grande ecosystem. 

Much of our discussions centered on 

providing technical advice/assistance to 

the Pueblo to develop, continue, or 

expand natural resource management 

such that the designation of critical 

habitat for the flycatcher would provide 

few if any benefits. 

We have an effective working 

relationship with Santa Clara Pueblo, 

which was established and has evolved 

from informal consultations. As part of 

this cooperative working relationship, 

we provided technical advice/assistance 

to the Pueblo, in respect to project 

activity, to evaluate habitat for primary 

constituent elements and to develop 

measures to conserve the flycatcher and 

its habitat on their lands. Another 

demonstrable example of the trust and 

relationship that the Service has with 

the Pueblo is the participation by some 

of their staff. In 2005, in Service 

sponsored training for flycatcher 

surveys. 

As part of maintaining a cooperative 

working relationship with the Pueblo, 

conservation benefits, including habitat 

restoration and enhancement have been 

possible. During our discussions with 

the Pueblo, and reiterated in their 

written comments, (Santa Clara Pueblo, 

July 12, 2005), we were informed that 

critical habitat would be viewed as an 

intrusion on their sovereign abilities to 

manage natural resources in accordance 

with their own policies, customs, and 

laws. To this end, we found that the 

Pueblo would prefer to work with us on 

a Government-to-Government basis. For 

these reasons, we believe that our 

working relationship with the Pueblo 

would be maintained if they are 

excluded from the designation of critical 

habitat for the flycatcher. We view this 

as a substantial benefit. 

As mentioned above, the Pueblo is an 

important land manager in respect to its 

land being a Wildland-Urban Interface. 

Its bosque needs to be managed and 

restored with the focus of fire 

prevention and human health and 

safety. The restoration and management 

information submitted by the Pueblo 

documents their commitment to having 

meaningful collaborative and 

cooperative work for the flycatcher and 

its habitat continue within their lands as 

they address the need to manage for 

human protection (Santa Clara Pueblo, 

July 12, 2005). These commitments 

demonstrate the willingness of the 

Pueblo to work cooperatively with us 

toward conservation efforts that will 

benefit the flycatcher. The Pueblo has 

committed to several ongoing or future 

management, restoration, enhancement, 

and survey activities and we believe 

that the results of these activities will 

promote long-term protection and 

conserve the flycatcher and its habitat 

within the Pueblo lands (Santa Clara 

Pueblo, July 12, 2005). The benefits of 

excluding this area from critical habitat 

will encourage the continued 

cooperation and development of datasharing and management plans. If this 

area is designated as critical habitat, we 

believe it is unlikely that sharing of 

information would occur. 

Educational benefits will be provided 

to the Pueblo lands if they are excluded 

from the designation, because their past 

and ongoing restoration projects, with 

management goals, provide for 

conservation benefits above any that 

would be provided by designating 

critical habitat. For example, the 

educational aspects are likely greater for 

this area if they are not included in the 

designation because the Pueblo will 

continue to work cooperatively with the 

Service to restore and enhance their Rio 

Grande floodplain with habitat that will 

contribute to the recovery of the species. 

Surveys that are planned for 2006 for 

the presence or absence of flycatchers in 

their bosque will add to recovery 

information and the participation by 

tribal biologist in the survey process 

adds to educational benefits and 

conservation of the species. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, the benefits of including 

the Pueblo in critical habitat are small, 

and are limited to minor educational 

benefits. The benefits of excluding these 

areas from being designated as critical 

habitat for the flycatcher are more 

significant, and include encouraging the 

continued development and 

implementation of special management 

measures such as surveys, 

enhancement, and restoration activities 

that are planned for the future or are 

currently being implemented. These 

activities and projects will allow the 

Pueblo to manage their natural 

resources to benefit the Upper Rio 

Grande management Unit and the 

flycatcher, without the perception of 

Federal Government intrusion. This 

philosophy is also consistent with our 

published policies on Native American 

natural resource management. The 

exclusion of this area will likely also 

provide additional benefits to the 

species that would not otherwise be 

available to encourage and maintain 

cooperative working relationships. We 

find that the benefits of excluding this 

area from critical habitat designation 

outweigh the benefits of including this 

area. 

We believe that exclusion of the 

Pueblo land will not result in extinction 

of the species. The Pueblo has 

committed to protecting and managing 

according to their tribal and cultural 

management plans and natural resource 

management objectives. In short, the 

Pueblo has committed to greater 

conservation measures on their land 

than would be available through the 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60963 

designation of critical habitat. With 

these natural resource measures, we 

have concluded that this exclusion from 

critical habitat will not result in the 

extinction of the flycatcher. 

Accordingly, we have determined that 

the Pueblo lands of Santa Clara should 

be excluded under subsection 4(b)(2) of 

the Act because the benefits of 

exclusion outweigh the benefits of 

inclusion and will not cause the 

extinction of the species. 

As discussed in the ‘‘Relationship of 

Critical Habitat to Tribal Lands’’ section 

of the Proposed Rule, 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-toGovernment 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 have found 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 our experience, 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-togovernment relationship essential to 

achieving our mutual goals of managing 

for healthy ecosystems upon which the 

viability of threatened and endangered 

species populations depend. In making 

our final decision with regard to tribal 

lands, we considered several factors 

including our relationship with the 

Tribe or Pueblo and whether 

conservation measures are in place for 

the southwestern willow flycatcher on 

their lands. 

San Juan Pueblo (Ohkay Owingue) 

During the open comment period, we 

worked with San Juan Pueblo (Pueblo) 

to consolidate information on their past, 

present, and future voluntary measures, 

restoration projects, and management to 

conserve the southwestern willow 

flycatcher and its habitat on their lands. 

We have determined that the lands of 

this Pueblo, in the Upper Rio Grande 

Management Unit, will not be 

designated as critical habitat. As 

described below, we have reached this 

determination because the benefits of 

excluding their lands from the final 

critical habitat designation outweigh the 

benefits of designating their lands. 

San Juan Pueblo, is located just north 

of Espanola in Rio Arriba County, New 

Mexico, and adjoins the lands of Santa 

Clara Pueblo. The Pueblo includes the 

southern or downstream end of the 

Velarde reach of the Rio Grande, and 

comprises the largest contiguous area of 

generally intact bosque, as well as the 

largest riparian area under the control of 

a single landowner, within the Velarde 

reach. A total of about 17 km (10.3 mi) 

are located within the Pueblo, (USGS 

1:24,000 map, 7.5 minute series, San 

Juan, NM), and over 445 ha (1100 ac) of 

riparian woodland, or bosque, are still 

extant within the Pueblo boundaries. 

In June of 1993, the flycatcher was 

documented on the west side of the Rio 

Grande north of the NM 74 Bridge as a 

biological assessment was being 

prepared for the proposed San Juan 

Bridge project. The project proposed to 

replace an existing bridge and two-lane 

road section with a newly located bridge 

and two-lane road with shoulders. 

Subsequent evaluations indicated that a 

viable population of nesting flycatchers 

was using the area. 

The presence of the nesting flycatcher 

prompted the Pueblo to restore the 

bosque habitat and associated wetlands 

for the flycatcher. Habitat within the 

Pueblo is much degraded relative to 

historic conditions for two main 

reasons: (1) River channelization that 

has caused floodplain desiccation, 

cessation of overbank flooding, and 

disruption of geomorphological 

processes; and (2) intensive invasion by 

non-native trees, primarily Russian 

olives. The increasing frequency and 

severity of fires in the Rio Grande 

bosque, accompanied by changes in 

vegetation and the water regime, 

underscores the urgency of restoration 

needs. 

The San Juan Pueblo immediately 

began restoration/conservation projects 

to benefit the flycatcher following the 

bridge project in 1994. Two acres of 

native riparian vegetation were planted 

on the reclaimed old roadway; 0.1 ha 

(0.22 ac) of riparian vegetation were 

planted adjacent to the new bridge; 1 

acre of riparian woodland was restored 

adjacent to the project; and, wetland 

restoration, which included open water 

and saturated soils, was developed at 

three sites encompassing 0.19 ha (0.46 

ac), 0.14 ha (0.34 ac), and 0.06 ha (0.14 

ac). Since 1999 the Pueblo has initiated 

or completed a variety of restoration/ 

conservation projects, including further 

wetland creation and expansion, 

flycatcher habitat enhancement with 

vegetation and open water, and removal 

of non-native vegetation with 

replacement of native vegetation. These 

projects are funded through various 

programs of the Environmental 

Protection Agency, Wildland Urban 

Interface/Collaborative Forest 

Restoration Program, Endangered 

Species Act Collaborative Program, and 

the State of New Mexico; they affect 301 

ha (744 ac) of riparian habitat on the 

Pueblo with direct and indirect benefits 

to the flycatcher. The project 

implementations include conservation, 

monitoring, and management for the 

flycatcher into the future. These efforts 

contribute to the long term goals of 

recovery for the flycatcher. In addition 

to the habitat work, the Pueblo supports 

flycatcher surveys and nest monitoring 

on the Pueblo lands. 

The long-term goal of riparian 

management on San Juan Pueblo is to 

make significant additions of wetland 

areas for breeding flycatchers, as well as 

implement innovative restoration 

techniques, decrease fire hazards by 

restoring native vegetation, share 

information with other restoration 

practitioners, utilize restoration projects 

in the education of the tribal community 

and surrounding community, and 

provide a working and training 

environment for the people of the 

Pueblo. In 2004, the Pueblo sponsored 

a multi-agency/organization riparian 

restoration conference on their lands. 

Their restoration efforts and flycatcher 

conservation were highlighted at the 

conference. As such, the Service and its 

partners gained valuable information 

about restoring flycatcher habitat and 

management techniques that can be 

applied to other riparian areas. 

Based on their traditional beliefs and 

ties to the bosque area, the Pueblo 

continues to protect, conserve, and 

restore the riparian habitat and the 

species that utilize the habitat. As is 

demonstrated through their projects, the 

Pueblo has invested a significant 

amount of ongoing time and effort to 

address the needs and recovery of the 

flycatcher. In addition, based on the 

long term goals of restoring additional 

wetland and native habitat, the Pueblo 

has shown that it is managing its 

resources to meet its traditional and 

cultural needs, while addressing the 

needs of the flycatcher. Currently, the 

San Juan Pueblo Environmental Affairs 

department employs nine Tribal 

members who work on holistic habitat 

restoration and management, which 

includes threatened and endangered 

species and their habitat. 

(1) Benefits of Inclusion 

There are few benefits of including 

San Juan Pueblo in the critical habitat 

designation above those that will be 

60964 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

achieved through the implementation of 

the Pueblo’s voluntary conservation 

measures, restoration projects, and 

management. The principal benefit of 

any designated critical habitat is that 

activities affecting such habitat requires 

consultation under section 7 of the 

Endangered Species Act if a Federal 

action is involved. Such consultation 

would ensure that adequate protection 

is provided to avoid destruction or 

adverse modification of critical habitat. 

However, if adequate protection can be 

provided in another manner, such as 

those provided by the Pueblo, the 

benefits of including any area in critical 

habitat are insignificant. 

Since 1993, the section 7 

consultations involving San Juan Pueblo 

for the flycatcher have been informal. 

Effects to the flycatcher from these 

projects have been insignificant and 

discountable because conservation 

measures have focused on restoration 

and management for the flycatcher and 

its habitat. As stated in the 

environmental assessment, the primary 

conservation value of the proposed 

critical habitat segments is to sustain 

existing populations. The threshold for 

reaching destruction or adverse 

modification on lands of the San Juan 

Pueblo would likely require a reduction 

in the capability of the habitat to sustain 

existing populations. Given that these 

lands are managed for the benefit of the 

flycatcher, it is highly unlikely that 

projects would be considered that 

would result in a depreciable 

diminishment or long-term reduction of 

the capability of the habitat to sustain 

existing populations. To the contrary, 

activities occurring on these lands will 

provide benefits to the flycatcher by 

restoring, improving, and protecting its 

habitat. 

Another possible benefit is that the 

designation of critical habitat can serve 

to educate the public regarding the 

potential conservation value of an area, 

and this may focus and contribute to 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for certain species. 

Any information about the flycatcher 

and its habitat that reaches a wide 

audience, including other parties 

engaged in conservation activities, 

would be considered valuable. 

However, the Pueblo is already working 

with the Service to address the habitat 

needs of the species. Further, the Pueblo 

lands were included in the proposed 

designation, which itself has reached a 

wide audience, and has thus provided 

information to the broader public about 

the conservation value of this area. 

Thus, the educational benefits that 

might follow critical habitat 

designation, such as providing 

information to the BIA or Pueblos on 

areas that are important for the longterm survival and conservation of the 

species, have already been provided by 

proposing these areas as critical habitat. 

For these reasons, then, we believe that 

designation of critical habitat would 

have few, if any, additional benefits 

beyond those that will result from 

continued consultation for the presence 

of the species. 

(2) Benefits of Exclusion 

The benefits of excluding the Pueblo 

from designated critical habitat are 

significant. The proposed critical habitat 

designation included 10.3 mi (16.5 km) 

of river and over 445 ha (1100 ac) of 

riparian woodland, or bosque, within 

the Pueblo boundaries. We believe that 

the significant benefits that would be 

realized by forgoing the designation of 

critical habitat on this area include: (1) 

The furtherance of our Federal Trust 

obligations and our deference to the 

Pueblo to develop and implement Tribal 

conservation and natural resource 

management plans for their lands and 

resources within the Rio Grande 

ecosystem, which includes the 

flycatcher and its habitat; (2) the 

continuance and strengthening of our 

effective working relationships with the 

Pueblo to promote the conservation of 

the flycatcher and its habitat; (3) the 

allowance for continued meaningful 

collaboration and cooperation in 

surveys and nest monitoring as we work 

towards recovery of the species; and (4) 

the provision of conservation benefits to 

the Rio Grande ecosystem and the 

flycatcher and its habitat that might not 

otherwise occur. 

Educational benefits will be provided 

to the Pueblo lands if they are excluded 

from the designation, because their past 

and ongoing restoration projects, with 

management goals, provide for 

conservation benefits above any that 

would provided by designating critical 

habitat. For example, the educational 

aspects are likely greater for this area if 

they are not included in the designation 

because the Pueblo will continue to 

work cooperatively toward the 

conservation of the flycatcher, which 

will include continuing, initiating, and 

completing flycatcher surveys/research 

and habitat restoration. As mentioned 

above, the Pueblo has already actively 

contributed to the education of multiple 

individuals about the conservations 

efforts and needs of the flycatcher 

through their riparian restoration 

conference. 

As discussed above, we met with San 

Juan Pueblo to discuss how they might 

be affected by the designation of critical 

habitat. We have an effective working 

relationship with the Pueblo, which was 

established and has evolved from the 

earlier informal consultations. As part of 

our cooperative working relationship, 

we provided technical advice/assistance 

to the Pueblo to develop measures to 

conserve the flycatcher and its habitat 

on their lands. San Juan Pueblo’s past, 

present, and on-going voluntary 

conservation measures in connection 

with their Environmental Affairs 

Department, Federal/State habitat 

restoration grants, and species 

conservation grants were summarized 

and submitted to the Service (San Juan 

Pueblo, July 18/August 18, 2005). These 

actions were conducted in accordance 

with Secretarial Order 3206; 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 these Pueblos should be 

the governmental entities to manage and 

promote the conservation of the 

flycatcher on their lands. During our 

meetings with each of these Pueblos, we 

recognized and endorsed these resource 

management activities, including those 

relating to the Rio Grande ecosystem. 

Much of our discussions centered on 

providing technical advice/assistance to 

the Pueblo to develop, continue, or 

expand natural resource management 

such that the designation of critical 

habitat for the flycatcher would provide 

few if any benefits. 

We find that other conservation 

benefits are provided to the Upper Rio 

Grande Management Unit and the 

flycatcher and its habitat by excluding 

the Pueblo from the designation. For 

example, as part of maintaining a 

cooperative working relationship with 

the Pueblo, conservation benefits, 

including flycatcher surveys, nest and 

habitat monitoring, and habitat 

restoration and enhancement have been 

possible. During our discussions with 

the Pueblo, and reiterated in their 

written comments, (San Juan Pueblo, 

July 18/August 18, 2005), we were 

informed that critical habitat would be 

viewed as an intrusion on their 

sovereign abilities to manage natural 

resources in accordance with their own 

policies, customs, and laws. To this end, 

we found that the Pueblo would prefer 

to work with us on a Government-toGovernment basis. For these reasons, we 

believe that our working relationship 

with the Pueblo would be maintained if 

they are excluded from the designation 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60965 

of critical habitat for the flycatcher. We 

view this as a substantial benefit. 

Proactive voluntary conservation 

efforts will promote the recovery of the 

flycatcher. As mentioned above, the 

Pueblo is an important land manager in 

the Upper Rio Grande management 

Unit. The consultation history, surveys, 

and conservation, restoration and 

management information submitted by 

the Pueblo documents that meaningful 

collaborative and cooperative work for 

the flycatcher and its habitat will 

continue within their lands. These 

commitments demonstrate the 

willingness of the Pueblo to work 

cooperatively with us toward 

conservation efforts that will benefit the 

flycatcher. The Pueblo has committed to 

several ongoing or future management, 

restoration, enhancement, and survey 

activities that may not occur with 

critical habitat designation. Therefore, 

we believe that the results of these 

activities will promote long-term 

protection and conserve the flycatcher 

and its habitat within the Pueblo lands. 

The benefits of excluding this area from 

critical habitat will encourage the 

continued cooperation and development 

of data-sharing and management plans. 

If this area is designated as critical 

habitat, we believe it is unlikely that 

sharing of information would occur. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, the benefits of including 

the Pueblo in critical habitat are small, 

and are limited to insignificant 

educational benefits. The benefits of 

excluding these areas from designation 

as critical habitat for the flycatcher are 

significant, and include encouraging the 

continued development and 

implementation of special management 

measures such as monitoring, surveys, 

enhancement, and restoration activities 

that the Pueblo plans for the future or 

is currently implementing. These 

activities and projects will allow the 

Pueblo to manage their natural 

resources to benefit the Upper Rio 

Grande management Unit and the 

flycatcher, without the perception of 

Federal Government intrusion. This 

philosophy is also consistent with our 

published policies on Native American 

natural resource management. The 

exclusion of this area will likely also 

provide additional benefits to the 

species that would not otherwise be 

available to encourage and maintain 

cooperative working relationships. We 

find that the benefits of excluding this 

area from critical habitat designation 

outweigh the benefits of including this 

area. 

We have determined that exclusion of 

the Pueblo land will not result in 

extinction of the species. The Pueblo is 

committed to protecting and managing 

Pueblo lands and species found on 

those lands according to their tribal and 

cultural management plans and natural 

resource management objectives, which 

provide conservation benefits for the 

species and its habitat. In short, the 

Pueblo is committed to greater 

conservation measures on their land 

than would be available through the 

designation of critical habitat. 

Accordingly, we have determined that 

the Pueblo lands of San Juan should be 

excluded under subsection 4(b)(2) of the 

Act because the benefits of exclusion 

outweigh the benefits of inclusion and 

will not cause the extinction of the 

species and we are excluding the Pueblo 

lands of San Juan from this critical 

habitat designation. 

Relationship of Critical Habitat to 

Partnerships and Conservation Plans/ 

Easements on Private Lands—

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

Act 

Verde Management Unit, AZ 

Salt River Project Partnership at 

Horseshoe Lake 

As discussed in the ‘‘Summary of 

Changes from the Proposed Rule’’

section above, we have determined that 

proposed critical habitat in the 

conservation space of Horseshoe Lake 

on the Verde River in Maricopa County, 

AZ will not be designated as critical 

habitat in this final rule due to our 

partnership and the ongoing HCP 

negotiations with Salt River Project 

(SRP). Salt River Project operates 

Horseshoe Dam and the Tonto National 

Forest manages the ground. We have 

reached this determination because we 

believe the benefits of excluding this 

segment from the final critical habitat 

designation outweigh the benefits of 

designating the lake as critical habitat. 

Similar to Roosevelt Dam, flycatcher 

habitat in Horseshoe Lake is created as 

a result of the storage and release of 

water behind and from Horseshoe Dam, 

which exposes fine sediments across a 

broad/flat floodplain. These conditions 

maintained with Verde River inflow 

generates, through a vegetative 

successional process and timeframe, 

abundant riparian habitat for the 

flycatcher. Periodic flooding or 

inundation of the habitat can result in 

temporary losses or unavailability of 

habitat and incidental take of 

flycatchers due to operations. Over time 

though, water is needed to flow over the 

conservation space to recharge 

groundwater, prevent dessication, and 

re-establish vegetation. Therefore, in the 

long-term through this cyclical and 

successional process, dam operations 

are expected to help support the 

existence of flycatcher habitat within 

Horseshoe Lake. Flycatcher habitat and 

territories at Horseshoe Lake have 

improved over the last three years, 

growing from 6 territories in 2003, to 11 

in 2004, and now approximately 27 

territories in 2005 (R. Ockenfels, AGFD, 

e-mail). 

Salt River Project and the Service 

have an ongoing partnership of working 

toward conserving federally-listed 

species that has existed for nearly two 

decades. As examples of our partnership 

that extends to a variety of threatened 

and endangered species, SRP has 

voluntarily worked with the Service 

toward bald eagle recovery since the 

1980s. They have participated in the 

inter-agency Southwestern Bald Eagle 

Management Committee, and provided 

annual helicopter flights to assess 

annual eagle productivity, conduct 

winter counts, detect new breeding 

areas, and access remote sites to band 

eaglets. In some instances they have also 

volunteered helicopter time to rescue 

bald eagles in life-threatening situations 

or take a rehabilitated eagle back to its 

nest area quickly. SRP has further 

donated funds to hire Arizona Bald 

Eagle Nestwatchers in order to protect 

bald eagles at nest sites. SRP has also 

produced a variety of bald eagle 

educational materials (brochures, 

posters, etc.) and atlases to track nest 

and territory locations. Additionally, 

SRP has supported California condor 

recovery by providing helicopter 

transportation of birds and biologists to 

remote locations. SRP has also worked 

with the Service’s law enforcement and 

other local power companies toward 

improving reporting of bird 

electrocutions, identifying locations of 

mortality, and retrofitting transmission 

poles to protect birds. 

Salt River Project has also been active 

in developing HCPs for southwestern 

willow flycatchers. Together SRP and 

the Service developed a comprehensive 

plan that allows for the protection and 

persistence of southwestern willow 

flycatchers at Roosevelt Lake, and 

acquisition of properties to mitigate 

effects of water storage (see Roosevelt 

HCP portion of this Exclusion section). 

Bald eagles and yellow-billed cuckoos 

were also included in this HCP. 

At Horseshoe Lake, SRP has 

committed resources to manage the lake 

not only for water storage, but also to 

retain habitat for southwestern willow 

flycatchers. Unlike some other 

reservoirs, because of the ability to store 

water downstream in Bartlett Lake, SRP 

60966 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

has more flexibility with how water is 

stored and released. Since the discovery 

of southwestern willow flycatchers at 

Horseshoe Lake, SRP has engaged in 

flycatcher and habitat surveys and has 

worked with the Service to determine 

ways in which the reservoir can be 

managed to balance the needs of the 

flycatcher and its purpose for water 

storage. This has been an ongoing twoyear effort that will be formalized in a 

HCP, resulting in improved 

management of the dam to ensure longterm southwestern willow flycatcher 

habitat persistence, combined with offsite habitat acquisition. We published 

our notice of intent to conduct NEPA, 

prepare an Environmental Impact 

Statement, and hold scoping meetings 

related to the Horseshoe/Bartlett HCP in 

June 2003 (68 FR 36829). Since scoping, 

the Service and SRP continue to 

develop and refine plans that solidify 

development, maintenance, and 

protection of flycatcher habitat at 

Horseshoe Lake and conservation 

measures for other species involved in 

the Plan. The Horseshoe/Bartlett HCP, 

once completed, will result in 

conservation for bald eagles, yellowbilled cuckoos, and federally-listed and 

non-listed native fish. Collectively, our 

partnership in all of these areas has 

resulted in benefits that have 

contributed to immediate and long-term 

benefits to the conservation and 

recovery of protected species. 

(1) Benefits of Inclusion 

SRP has determined that any 

incidental take as a result of dam 

operations is appropriately authorized 

under section 10(a)(1)(B) of the Act (i.e., 

Habitat Conservation Plan). Therefore, 

the eventual finalization of a HCP and 

issuance of this permit will commit an 

applicant (i.e., SRP) to conduct 

southwestern willow flycatcher 

conservation activities, and minimize 

and/or mitigate to the maximum extent 

practicable for any incidental take. In 

order to issue this permit, the Service 

would have to conclude that the HCP 

would not jeopardize the southwestern 

willow flycatcher. Because 

southwestern willow flycatchers already 

exist at Horseshoe Lake, the scope of our 

analysis would include flycatcher 

habitat. 

There is a Federal nexus for Tonto 

National Forest activities at Horseshoe 

Lake, because once the lake recedes, the 

Forest Service manages the dry lake 

bottom. Therefore, if the Forest carried 

out, funded, or permitted any activities 

that affected critical habitat at 

Horseshoe Lake, it would require 

consultation under section 7 of the Act. 

Forest Service management of activities 

that can reduce quality of flycatcher 

habitat such as cattle grazing and 

recreation at Horseshoe Lake helped 

foster habitat development since the 

lake receded due to drought in the mid1990s, and since southwestern willow 

flycatcher territories were discovered at 

Horseshoe in 2002, no Forest Service 

projects have been proposed that have 

adversely affected southwestern willow 

flycatchers or their habitat. Because of 

this lake’s importance for water storage 

and because water periodically floods 

the entire area, there is no reason to 

anticipate that the lake bottom will be 

anything but open space. Due to the 

periodic water flow, it limits the extent 

this lake bottom can be managed for any 

other activities. Because southwestern 

willow flycatchers currently occupy 

Horseshoe Lake, section 7 consultation 

and analysis of effects to habitat already 

occurs, leaving few additional benefits 

to the designation of critical habitat. 

Designation of critical habitat also 

provides educational benefits, including 

informing project proponents (in this 

case SRP and the Forest Service) of 

areas that are important to the 

conservation of listed species and 

providing important information on 

those habitats and their primary 

constituent elements. Because SRP and 

the Forest Service are the water and 

land managers, they have conducted 

and contracted surveys, nest 

monitoring, and vegetation monitoring 

for the southwestern willow flycatcher 

at Horseshoe Lake. Therefore, the 

potential designation of critical habitat 

at Horseshoe Lake would not provide 

this educational benefit because both 

SRP and the Forest Service already 

know the birds are present and are 

studying its habitat and breeding 

locations. SRP and the Forest are also 

already aware that Horseshoe Lake has 

a high concentration of flycatchers, and 

are important to conservation goals on 

the Verde River Management Unit. In 

addition, this area was included in our 

proposed designation and is discussed 

in this final designation as an area 

essential to the conservation of the 

flycatcher. 

(2) Benefits of Exclusion 

The benefits of excluding lands 

within Horseshoe Lake area from critical 

habitat designation include recognizing 

the value of conservation benefits 

associated with a partnership and a 

developing HCP; encouraging actions 

that benefit multiple species; 

encouraging local participation in 

development of new HCPs; and 

facilitating the cooperative activities 

provided by the Service to groups such 

as SRP. Additionally, our existing 

partnership and the integration of 

Federal land management will generate 

a consistent management approach at 

Horseshoe Lake. 

The partnership and cohesive 

management at Horseshoe Lake will 

maintain habitat for southwestern 

willow flycatchers for the long-term. 

This partnership will culminate in 

development, finalization, and 

implementation of an HCP that will 

provide long-term conservation benefits. 

In addition to maintaining habitat for 

the long-term at Horseshoe Lake, this 

partnership and subsequent HCP will 

include the development of status and 

distribution information needed to 

guide conservation efforts and assist in 

species conservation outside the HCP 

planning area, and the creation of 

innovative solutions to conserve species 

that can be applied wherever similar 

needs exist, irrespective of land 

ownership. The partnership with SRP 

also facilitates other cooperative 

activities with other similarly situated 

industry, communities, and landowners. 

Continued cooperative relations with 

SRP and their stakeholders (i.e., City of 

Phoenix) are expected to influence other 

future partners and lead to greater 

conservation than would be achieved 

through multiple section 7 

consultations. 

Non-Federal landowners or dam 

operators such as SRP are motivated to 

work with the Service collaboratively to 

develop voluntary HCPs because of the 

regulatory certainty provided by an 

incidental take permit under section 

10(a)(1)(B) of the Act with the No 

Surprises Assurances. This 

collaboration often provides greater 

conservation benefits than could be 

achieved through strictly regulatory 

approaches, such as critical habitat 

designation. The conservation benefits 

resulting from this collaborative 

approach are built upon a foundation of 

mutual trust and understanding. It takes 

considerable time and effort to establish 

this foundation of mutual trust and 

understanding which is one reason it 

often takes several years to develop a 

successful HCP. Already, the 

Horseshoe/Bartlett HCP development 

process has exceeded two years. 

Excluding this area from critical habitat 

would help promote and honor that 

trust by providing certainty for 

permittees that once appropriate 

conservation measures have been agreed 

to that additional consultation will not 

be necessary. 

In discussions with the Service, SRP 

and their stakeholders have indicated 

they view critical habitat designation at 

Horseshoe Lake as unwarranted, and 

undermines the regulatory certainty that 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60967 

would be provided by their expected 

incidental take permit and the No 

Surprises assurances. There is a concern 

by SRP and stakeholders that 

designation of critical habitat at 

Horseshoe Lake has the potential to 

threaten the storage and delivery of 

water to the greater Phoenix 

metropolitan area (described in the 

Economic Analysis). Should this ever 

come to pass, the results could be 

significant, however we do not believe 

that scenario is reasonably foreseeable. 

Having applicant’s understand the 

Service’s commitment will encourage 

continued partnerships with these 

permittees that could result in 

additional conservation plans or 

additional lands enrolled in HCPs. By 

excluding areas where our partnerships 

have been established following years of 

collaborative efforts that has resulted, 

and will continue to result in habitat 

protection for the flycatcher, preserves 

these partnerships and promote more 

effective conservation actions in the 

future. 

A benefit of excluding Horseshoe 

Lake from critical habitat designation 

includes relieving additional regulatory 

burden and costs associated with the 

preparation of portions of section 7 

documents related to critical habitat. 

While the cost of adding these 

additional sections to assessments and 

consultations to the Service and the 

Forest Service is relatively minor, there 

could be delays which can generate real 

costs to some project proponents. Since 

critical habitat is only proposed for 

occupied areas already subject to 

section 7 consultation and a jeopardy 

analysis, it is anticipated this reduction 

would be minimal. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, we find that the benefits 

of designating critical habitat for the 

southwestern willow flycatcher at 

Horseshoe Lake are small in comparison 

to the benefits of exclusion. In making 

this finding, we have weighed the 

benefits of including Horseshoe Lake as 

critical habitat, and compared them to 

the benefits of these lands without 

critical habitat, but with management 

based on our existing partnership (with 

a future HCP) and management by the 

Forest Service. Excluding Horseshoe 

Lake would reduce some additional 

administrative effort and cost during the 

consultation process pursuant to section 

7 of the Act. Excluding Horseshoe Lake 

would continue to help foster 

development of future partnerships and 

HCPs and strengthen our relationship 

with permittees and stakeholders. 

Because there is no Federal nexus for 

Horseshoe Dam operations, critical 

habitat, in and of itself, provides little 

benefit to Horseshoe Lake flycatcher 

habitat from Horseshoe Dam operations. 

Our 4(b)(8) determination in this final 

rule indicated that we did not believe 

dam operations, like Roosevelt Dam, 

would result in adverse modification. 

Horseshoe Dam operations, similar to 

Roosevelt Dam, will continue to foster 

the maintenance, development, and 

necessary recycling of habitat for the 

flycatcher in the long-term due to the 

dynamic nature of water storage and 

delivery. To date, Forest Service 

management has fostered the 

development, presence, and protection 

of flycatcher habitat. Because the lake 

bottom is intended for water storage, we 

believe there is virtually no risk of 

development or extensive land-use by 

the Forest Service that would be 

expected to result in adverse 

modification. Excluding Horseshoe Lake 

eliminates the concern of permittees 

and stakeholders of the possible risk to 

water storage and delivery to the greater 

Phoenix metropolitan area. This 

subsequently eliminates any uncertain 

risk of significant economic costs due to 

loss of water storage capabilities. 

We have, therefore, concluded that 

the current partnership and 

management established with SRP for 

flycatcher habitat, existing Forest 

Service management fostering flycatcher 

habitat, and conservation commitment 

to flycatcher habitat, outweigh those 

benefits that would result from the area 

being included in the designation. We 

have therefore excluded these lands 

from the final critical habitat 

designation pursuant to section 4(b)(2) 

of the Act. 

We also find that the exclusion of 

Horseshoe Lake will not lead to the 

extinction of the species, nor hinder its 

recovery. The periodic fluctuation in 

Horseshoe Dam operation, the 

maintenance of the dry lake bottom as 

open-space, and continued appropriate 

Forest Service management will ensure 

the long-term persistence and protection 

of flycatcher habitat at Horseshoe Lake. 

San Luis Valley Management Unit, CO 

San Luis Valley Partnership and 

Regional Habitat Conservation Plan 

As discussed in the ‘‘Summary of 

Changes from the Proposed Rule’’

section above, we have determined that 

all proposed critical habitat in the San 

Luis Management Unit, CO (Rio Grande 

and Conejos River), will not be 

designated as critical habitat in this 

final rule due to our past and future 

conservation partnerships within the 

San Luis Valley, as discussed below. We 

have reached this determination 

because we believe the benefits of 

excluding this unit from the final 

critical habitat designation outweigh the 

benefits of designating the unit as 

critical habitat. 

A partnership has been formed to 

develop a HCP in the San Luis Valley 

of Colorado. The State of Colorado 

received a $380,000 HCP Section 6 

Planning Grant on behalf of the Rio 

Grande Water Conservation District in 

2004 to develop the HCP for five 

counties, two cities, the State of 

Colorado, and 14 other smaller 

communities. In September 2005 the 

State received another $120,000 Section 

6 grant to draft NEPA documents and 

finalize the HCP. A preliminary draft of 

the San Luis Valley Regional HCP has 

been submitted to the Service for 

review. The HCP as proposed would 

cover nearly 809,300 ha (2 million ac) 

and 241 km (150 mi) of habitat for the 

southwestern willow flycatcher, bald 

eagle, and yellow-billed cuckoo. The 

acreage covered by the HCP 

encompasses the entire Colorado 

portion of the San Luis Valley 

Management Unit, as described in the 

Southwestern Willow Flycatcher Final 

Recovery Plan, and extends well beyond 

the two stream segments in the Rio 

Grande and Conejos Rivers that we 

proposed as critical habitat. 

The San Luis Valley has a strong 

tradition of locally supporting issues 

that provide for long-term conservation 

of natural resources. For instance, 

entities within the Valley fought a 

strong effort on two occasions by 

governmental entities from larger cities 

(Colorado Springs and Aurora, CO) to 

the north to withdraw water from the 

Valley’s underground aquifer and have 

it pumped to the larger cities. A 

subsequent result of this effort was the 

expansion of the Service’s National 

Wildlife refuge lands in the Valley (now 

referred to as the Baca Refuge under the 

administration of the Alamosa-Monte 

Vista Refuge) and expansion of the 

adjacent Great Sand Dunes National 

Park and Preserve, actions supported by 

the local community. These efforts have 

facilitated strong, meaningful, and 

enduring conservation partnerships 

with the Service. 

The Valley has other strong 

conservation efforts that are locally 

driven: such as the Rio Grande 

Headwaters Restoration Project, 

Alamosa River Restoration Project, 

Colorado Wetlands Initiative—San Luis 

Valley Focus Area Group, Rio Grande 

Natural Area, and Saguache Creek 

Corridor Project. All these efforts, 

described in further detail below to 

demonstrate the history of conservation 

60968 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

efforts in the San Luis Valley, are within 

the HCP planning area and will provide 

conservation benefits to the 

southwestern willow flycatcher, bald 

eagle, and yellow-billed cuckoo, as well 

as other wildlife within riparian and 

wetland communities. 

The Rio Grande Headwaters 

Restoration Project objective is to 

implement a master restoration plan for 

approximately 64 km (40 mi) of the 

upper Rio Grande. This project presents 

a plan to enhance the adequacy of the 

Rio Grande to fulfill historical function 

such as maintenance of riparian habitat 

and channel capacity, as well as 

meeting Rio Grande Compact 

commitments. The Alamosa River 

Restoration Project has $5 million in 

funds to restore and enhance the 

Alamosa River. This project’s efforts 

include stream bank stabilization, 

boulder placement, vegetation 

plantings, and fencing of the riparian 

area to restore riparian function, The 

Colorado Wetlands Initiative—San Luis 

Valley Focus Area Group is a coalition 

of conservation organizations, private 

landowners, and State and Federal 

agencies that have contributed to several 

conservation projects that help protect 

southwestern willow flycatcher habitat. 

The Rio Grande Water Conservancy 

District is providing strong political 

support for establishment of the Rio 

Grande Natural Area, currently before 

Congress. The 33 mile stretch of the Rio 

Grande from the Alamosa National 

Wildlife Refuge to the New Mexico 

border will continue to managed by the 

Bureau of Land Management and 

private landowners as a Natural Area. If 

enacted, the Natural Area would 

establish an advisory council that would 

develop a plan and provide a framework 

for the conservation of riparian habitat. 

The Saguache Creek Corridor Project 

has been awarded a $3.7 million grant 

by the Colorado Cattleman’s 

Agricultural Land Trust to assist 

landowners in the perpetual protection 

of conservation easements. These 

easements would permanently protect 

the agricultural, wildlife, and scenic 

values of this riparian corridor that 

contains significant patches of willow. 

(1) Benefits of Inclusion 

The draft environmental assessment 

found that minor changes through 

section 7 consultations, due to a critical 

habitat designation, may occur in the 

form of additional discretionary 

conservation recommendations to 

reduce impacts to the primary 

constituent elements. Thus, if the areas 

proposed in the San Luis Valley were 

designated as critical habitat, there may 

be some benefit through consultation 

under the adverse modification standard 

for federally sponsored actions. But, we 

believe this benefit is minimal since 

these locations are currently occupied 

by breeding flycatchers, dispersing 

young-of-the year flycatchers, migrating, 

foraging, and non-breeding flycatchers; 

thus, effects to flycatcher habitat are 

already considered in consultations 

under section 7 of the Act. In addition, 

the past history of conservation efforts, 

as well as efforts and funding to date in 

the development of the preliminary 

HCP, demonstrate the commitments of 

the San Luis Valley to provide for the 

conservation of the flycatcher and the 

growth and persistence of its habitat. 

For these reasons and because formal 

consultations in these proposed areas of 

critical habitat, as explained elsewhere 

in this rule, will likely result in only 

discretionary conservation 

recommendations due to existing 

appropriate management, we believe 

there is an extremely low probability of 

mandatory elements (i.e., reasonable 

and prudent alternatives) arising from 

formal section 7 consultations that 

include consideration of designated 

critical habitat for the southwestern 

willow flycatcher. 

With regard to the preliminary HCP, 

in order for the Service to issue this 

permit regardless of whether critical 

habitat is designated, we would have to 

conclude that the HCP would not 

jeopardize the southwestern willow 

flycatcher. However, because 

southwestern willow flycatchers already 

exist in these proposed critical habitat 

areas in the San Luis Valley, as noted 

above, the scope of our analysis 

pursuant to section 7 would also 

include effects to flycatcher habitat; 

therefore, we believe the additional 

designation of critical habitat would 

provide little benefit when we conduct 

our inter-Service consultation on the 

anticipated issuance of this HCP. 

We have also determined through our 

review of the preliminary San Luis 

Valley Regional HCP that it provides for 

the development and accumulation of 

important biological information that 

would otherwise be unavailable and 

that will benefit the flycatcher and 

many other species. Specifically, we 

find that it will educate many people 

regarding the role of geology and 

topography in meeting the needs of 

wildlife in these stream habitats, and 

understanding the ecological processes 

that develop, maintain, or degrade these 

habitats. This HCP also provides 

conservation benefits that address and 

benefit multiple species and 

environmental concerns across broad 

landscapes, regardless of occupancy by 

southwestern willow flycatcher and 

other covered species. The HCP is 

anticipated to provide conservation 

beyond what could be achieved through 

a parcel-by-parcel avoidance of take, or 

through multiple section 7 consultations 

due to a diversity of actions undertaken 

through the HCP, including proactive 

restoration and remediation of existing 

problem areas. The HCP will serve as a 

foundation for landscape conservation 

planning on adjacent lands and allow 

longer-range planning, all of which 

would benefit the southwestern willow 

flycatcher, bald eagle, yellow-billed 

cuckoo and other riparian associated 

wildlife. For the reasons discussed 

above and because formal consultation 

on the issuance of the HCP would likely 

result in only discretionary conservation 

recommendations due to beneficial 

nature of the HCP, we believe there is 

an extremely low probability of 

mandatory elements (i.e., reasonable 

and prudent alternatives) arising in this 

case. Therefore, as noted above, we 

believe the designation of critical 

habitat would provide little benefit as a 

result of our section 7 analysis on the 

anticipated issuance of this HCP. 

There may also be non-regulatory and 

educational benefits to conservation of 

the flycatcher, including informing the 

public of areas important for 

conservation of the species, and 

focusing attention on and awareness of 

those areas. In Sierra Club v. Fish and 

Wildlife Service, 245 F.3d 434 (5th Cir. 

2001), the Fifth Circuit Court of Appeals 

stated that the identification of habitat 

essential to the conservation of the 

species can provide informational 

benefits to the public, State and local 

governments, scientific organizations, 

and Federal agencies. The court also 

noted that heightened public awareness 

of the plight of listed species and their 

habitats may facilitate conservation 

efforts. However, we believe that there 

would be little educational and 

informational benefit gained from 

including proposed critical habitat in 

the Rio Grande and Conejos Rivers of 

the San Luis Valley within the 

designation, because they were included 

in the proposed rule as essential habitat, 

are discussed in this final rule, and have 

been the focus of conservation related 

activities for a number of years. 

Consequently, we believe that the 

informational benefits are already 

provided even though these areas are 

not designated as critical habitat. 

(2) Benefits of Exclusion 

The benefits of excluding lands 

within the proposed critical habitat area 

of the Rio Grande and Conejos Rivers, 

that are encompassed by the San Luis 

Valley HCP, from critical habitat 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60969 

designation include recognizing the 

value of conservation benefits 

associated with HCP actions; 

encouraging actions that benefit 

multiple species; encouraging local 

participation in development of new 

HCPs; and facilitating the cooperative 

activities provided by the Service to 

landowners, communities, and counties 

in return for their adoption and support 

of the HCP. Additionally, the existing 

partnerships and the integration of 

Federal land management with nonFederal land management will enhance 

a consistent management approach on a 

landscape level. 

If issued, the San Luis Valley HCP 

will help promote flycatcher recovery 

through the development and 

implementation of the HCP, as noted 

above, and by providing for other 

important conservation benefits, 

including the development of important 

biological information needed to guide 

conservation efforts and assist in species 

conservation within and outside the 

HCP planning area. In general, HCPs 

also aid in the creation of innovative 

solutions to conserve species that can be 

applied wherever similar needs exist, 

irrespective of land ownership. 

If issued, the San Luis Valley HCP can 

also facilitate other cooperative 

activities with other similarly situated 

landowners. Continued cooperative 

relations with San Luis Valley citizens 

are expected to influence other future 

partners and lead to greater 

conservation than would be achieved 

through multiple section 7 

consultations. We anticipate 

participating in a scientific advisory 

team that oversees the HCP, and allows 

for the sharing of information and 

development of relationships with a 

number of other entities, including 

Tribes. 

Failure to exclude these two stream 

segments in the San Luis Valley could 

be a disincentive for other entities 

contemplating partnerships, as it would 

be perceived as a way for the Service to 

impose additional regulatory burdens 

once conservation strategies have 

already been agreed to or are underway, 

as is the case here with the development 

of the San Luis Valley HCP. 

Nonfederal landowners are motivated 

to work with the Service collaboratively 

to develop HCPs because of the 

regulatory certainty provided by an 

incidental take permit under section 

10(a)(1)(B) of the Act with the No 

Surprises Assurances. This 

collaboration often provides greater 

conservation benefits on nonfederal 

lands than could be achieved through 

strictly regulatory approaches, such as 

critical habitat designation. The 

conservation benefits resulting from this 

collaborative approach are built upon a 

foundation of mutual trust and 

understanding. It takes considerable 

time and effort to establish this 

foundation of mutual trust and 

understanding which is one reason it 

often takes several years to develop a 

successful HCP. Excluding these stream 

segments from critical habitat would 

help promote and honor that trust and 

thereby our partnership by providing 

greater certainty for the HCP applicant. 

In discussions with the Service, HCP 

permittees and applicants have 

indicated they view critical habitat 

designation as an unwarranted and 

unwelcome intrusion on their property, 

and an erosion of the regulatory 

certainty that would be provided by 

their incidental take permit and the No 

Surprises Assurances. Having 

applicant’s understand the Service’s 

commitment will encourage continued 

partnerships that could result in 

additional conservation plans or 

additional lands enrolled in HCP’s and, 

in this case, demonstrate the Service’s 

commitment to continue to work in 

cooperation with these entities for the 

mutual benefit of the flycatcher. 

Our collaborative relationships with 

an HCP applicant clearly make a 

difference in our partnership with the 

numerous landowners of the San Luis 

Valley and influence our ability to form 

partnerships with others. Concerns over 

added regulation potentially imposed by 

critical habitat harms this collaborative 

relationship by leading to distrust. Our 

experience has demonstrated that 

successful completion of one HCP has 

resulted in the development of other 

conservation efforts and HCPs with 

other landowners. We believe this HCP 

will result in implementation of 

conservation actions that we would be 

unable to accomplish otherwise and by 

excluding this area we preserve our 

partnership and promote more effective 

conservation actions in the future. 

Additional benefits from excluding 

these two stream segments from critical 

habitat designation includes relieving 

landowners, communities, and counties 

from any additional regulatory burden 

and costs associated with the 

preparation of section 7 documents 

related to critical habitat. While the 

costs of these additional documents to 

the Service is relatively minor, there 

could be delays which generate very 

real costs to private landowners in the 

form of opportunity costs as well as 

direct costs. In addition, stigma costs are 

associated with the regulatory 

designation of critical habitat. There 

would be reduced costs and staffing 

requirements as consultations would be 

more extensive with a critical habitat 

designation thereby reducing costs 

associated with producing Biological 

Assessments and Biological Opinions. 

Since critical habitat is only proposed 

for occupied areas, already subject to a 

jeopardy analysis, it is anticipated this 

reduction would be minimal. If issued, 

the HCP will provide substantial 

protection to the ecosystem as a whole, 

which we believe will contribute to the 

conservation of the flycatcher and other 

covered species. This preliminary HCP 

covers a large area that is outside of our 

proposed stream segments, including 

areas not currently occupied by the 

flycatcher. Including these areas as part 

of the HCP can contribute to 

southwestern willow flycatcher 

recovery by including riparian habitats 

suitable for future occupancy by 

southwestern willow flycatcher. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, we believe that the 

benefits of excluding these stream 

segments based upon our past and 

current partnership, including the 

current efforts towards development 

and issuance of the preliminary San 

Luis Valley HCP, from the designation 

of southwestern willow flycatcher 

critical habitat outweighs the benefits of 

their inclusion. We find that including 

these two stream segments, would result 

in very minimal, if any additional, 

benefits to the southwestern willow 

flycatcher, as explained above. 

However, including them would require 

additional administrative effort and cost 

during the consultation process 

pursuant to section 7 of the Act. 

Although the additional effort to 

consider and analyze the affects of 

various projects on critical habitat may 

not be substantial, it would require the 

citizens of the San Luis Valley and the 

Service to use additional resources that 

may otherwise be used towards 

beneficial projects for wildlife 

throughout the San Luis Valley. 

We also find that the exclusion of 

these lands will not lead to the 

extinction of the species, nor hinder its 

recovery because the management 

emphasis of the San Luis Valley in 

general and specifically through the 

preliminary HCP and the various 

partners within the San Luis Valley is 

to protect and enhance riparian habitat, 

which the southwestern willow 

flycatcher depends on. This emphasis 

on conserving riparian habitat will 

ensure the long-term conservation of the 

southwestern willow flycatcher and 

other riparian species and contribute to 

flycatcher recovery by conserving 

60970 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

riparian habitat that is not currently 

occupied. 

Owens Management Unit, CA 

Los Angeles Department of Water and 

Power Conservation Strategy 

As discussed in the ‘‘Summary of 

Changes from the Proposed Rule’’

section above, we have determined that 

the Owens Management Unit, CA 

(OMU) in the Basin and Mojave 

Recovery Unit will not be designated as 

critical habitat in this final rule. We 

have reached this determination 

because we believe the benefits of 

excluding the Owens River from the 

final critical habitat designation 

outweigh the benefits of designating the 

Owens River as critical habitat. 

The OMU, which was proposed as 

critical habitat, includes a 111 km (69 

mi) long reach of the Owens River and 

a 1.4 km (0.9 mi) long reach of Rock 

Creek in Inyo and Mono Counties, CA. 

The Owens River segment is bounded 

on the upstream end by a point that is 

0.8 km (0.5 mi) east of the Long Valley 

Dam, and on the downstream end by a 

point that is 6.4 km (4 mi) north of 

Tinemaha Reservoir. The Rock Creek 

segment consists of the downstreammost portion of the creek in Birchim 

Canyon before it intersects the Owens 

River. All of the land within the OMU 

is owned and managed by the Los 

Angeles Department of Water and 

Power. 

On July 12, 2005, the Service and the 

Los Angeles Department of Water and 

Power signed a memorandum of 

understanding (MOU) which included a 

southwestern willow flycatcher 

conservation strategy designed to 

proactively manage flycatchers in the 

OMU. The conservation strategy 

addresses three elements, livestock 

grazing, recreational activities, and wild 

land fires that have the potential to 

adversely affect the southwestern 

willow flycatcher in the OMU. The 

conservation strategy provides specific 

measures that: (1) are designed to create 

suitable breeding habitat for the 

southwestern willow flycatcher, and (2) 

avoid and minimize potential adverse 

effects such as the degradation or loss of 

habitat that may be associated with 

grazing activities, recreational activities, 

and wild land fires. The document also 

states the Los Angeles Department of 

Water and Power will implement the 

aforementioned measures with the goal 

of promoting the establishment of 50 

southwestern willow flycatcher 

territories in the OMU; this number of 

territories was identified in the 

Southwestern Willow Flycatcher 

Recovery Plan (USFWS 2002), and 

reflects the number of territories the 

Service believes is necessary to recover 

this species in that area. The finalized 

MOU and conservation strategy signed 

by the Los Angeles Department of Water 

and Power were received by the Service 

during the public comment period 

which ended July 18, 2005. 

The MOU provides a commitment by 

the Los Angeles Department of Water 

and Power to implement the 

conservation strategy for a minimum of 

10 years, and also contains a clause 

stating that the MOU will become null 

and void if all or any part of the OMU 

is designated as critical habitat for the 

southwestern willow flycatcher. At the 

end of the 10-year period, the Service 

and LADWP will conduct a joint 

evaluation to determine if there is a 

need to renew the conservation strategy 

for an additional 10-year period. If it is 

deemed necessary, the renewal of the 

conservation strategy will provide 

assurances that the measures to 

conserve the habitat of the southwestern 

willow flycatcher will continue. In the 

event that the conservation strategy is 

renewed, the Service and LADWP will 

collectively determine if new measures 

need to be implemented to promote the 

establishment and persistence of 

additional habitat for the southwestern 

willow flycatcher. 

(1) Benefits of Inclusion 

As of the date of this final rule, the 

Service has not conducted any formal or 

informal consultations that involve the 

southwestern willow flycatcher in the 

Owens Valley area since this species 

was listed as endangered in 1995. We 

also note that staff from the Los Angeles 

Department of Water and Power have 

stated that, with regard to the OMU, 

they have not received or required any 

Federal permit, license, authorization, 

or funding to complete projects in this 

area, and they do not anticipate there 

will be a project that will create a 

Federal nexus within the foreseeable 

future. The lack of previous section 7 

consultations during the past 10 years, 

and the expectation that there will be no 

future project within the OMU with a 

Federal nexus leads us to believe that 

critical habitat designation will create 

relatively few benefits for the 

southwestern willow flycatcher in this 

area. 

Designation of critical habitat also 

provides educational benefits, including 

informing private landowners of areas 

that are important to the conservation of 

listed species and providing important 

information on those habitats and their 

primary constituent elements. Because 

the Los Angeles Department of Water 

and Power is the sole owner of the land 

within the OMU, and they have either 

conducted, or contracted surveys for the 

southwestern willow flycatcher, the 

agency is aware the species occurs on 

their property. Therefore, the potential 

designation of critical habitat in the 

OMU would not provide this 

educational benefit because the Los 

Angeles Department of Water and Power 

already knows the species is present on 

their property. Los Angeles Department 

of Water and Power staff is also already 

aware that their property has a relatively 

high concentration of southwestern 

willow flycatchers in relation to other 

areas outside of the Owens Valley area, 

and this species has specific habitat 

requirements that require proactive 

management. Additionally, these lands 

are identified in our proposed and final 

rule as areas essential to the 

conservation of the southwestern 

willow flycatcher. 

(2) Benefits of Exclusion 

The development of a MOU between 

the Service and another entity is an 

activity that both parties must 

voluntarily agree to; as such, both 

entities negotiate the terms and 

conditions of the document. In the case 

of the MOU involving the OMU, the Los 

Angeles Department of Water and Power 

agreed to implement the conservation 

strategy to benefit the southwestern 

willow flycatcher, provided that critical 

habitat in the Owens Valley is not 

designated. 

The Service has reviewed the 

measures in the conservation strategy, 

and we believe the implementation of 

these measures will create a tangible 

and quantifiable benefit within the 

19,830 ha (49,000 ac) area that 

constitutes the OMU. For example, the 

grazing prescriptions will enhance the 

survival of riparian shrubs and trees 

during their first years of growth and 

minimize adverse effects to young age 

classes of riparian willow and 

cottonwood trees, thereby allowing the 

riparian community to develop dense 

thickets of trees and shrubs that are 

likely to be used by the southwestern 

willow flycatcher. The regulation of 

recreational activities conducted by the 

public within the OMU will act to 

protect and/or restore riparian areas by 

minimizing erosion, reducing the 

number of trails that exist or could 

develop, and improving bank stability. 

Unintentional fires in riparian areas will 

be given high priority for fire 

suppression. If fires affect significant 

portions of the Owens River, Los 

Angeles Department of Water and Power 

staff will pursue management actions 

that facilitate a more rapid recovery of 

the affected riparian habitats. For 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60971 

example, flows in the Owens River, 

authorized grazing activities, and 

recreational use may be adjusted to 

facilitate the recovery of burned riparian 

habitats. 

The conservation strategy also 

provides a commitment by the Los 

Angeles Department of Water and Power 

and the Service to review the 

conservation strategy and management 

activities to determine what mutually 

agreeable protective measures could be 

further implemented/added to the 

existing conservation strategy. If such 

additional protective measures are 

needed, the Los Angeles Department of 

Water and Power will identify these 

measures in annual reports that will be 

sent to the Service, and implement the 

new measures as soon as possible. As 

stated above, the commitment to 

conduct the aforementioned activities is 

based on Los Angeles Department of 

Water and Power’s desire to work with 

the Service and reduce the need to 

designate critical habitat in Owens 

Valley. 

We also note the development of the 

MOU and conservation strategy for the 

southwestern willow flycatcher in the 

OMU has been a collaborative effort that 

has promoted the development of a 

positive relationship between the 

Service and the Los Angeles Department 

of Water and Power. The Service 

believes the collaborative relationship 

between the two agencies will be 

especially useful in the future because 

Los Angeles Department of Water and 

Power staff have indicated they will 

likely work with the Service on 

additional partnership efforts to 

conserve fish and wildlife resources 

within the next year or two. Such 

documents are more easily completed 

when the Service and an applicant have 

a collaborative relationship, and would 

benefit a variety of listed species in the 

Owens Valley area. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We find that the benefits of 

designating critical habitat within the 

OMU are relatively small in comparison 

to the benefits of exclusion. In making 

this finding, we have weighed the 

benefits of including these lands as 

critical habitat without the MOU and 

conservation strategy against the 

exclusion of these lands from critical 

habitat and the implementation of the 

MOU and conservation strategy. We 

have concluded that the benefits of the 

MOU and conservation strategy far 

outweigh those that would result from 

the designation. We have therefore 

excluded these lands from the final 

critical habitat designation pursuant to 

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

We believe that exclusion of these 

lands will not result in extinction of the 

species, as they are considered occupied 

habitat. Any actions that might 

adversely affect the southwestern 

willow flycatcher, regardless of whether 

a Federal nexus is present, must 

undergo a consultation with the Service 

under the requirements of section 7 of 

the Act or receive a permit from us 

under section 10. The southwestern 

willow flycatcher is protected from take 

under section 9. The exclusions leave 

these protections unchanged from those 

which would exist if the excluded areas 

were designated as critical habitat. In 

addition, as discussed above, there are 

a substantial number of active 

conservation measures underway for the 

species, which provide greater 

conservation benefits than would result 

from a designation. Consistent with the 

recommendations in the Recovery Plan 

(USFWS 2002), LADWP will implement 

measures and activities with the goal of 

promoting the establishment of 50 

southwestern willow flycatcher 

territories in the Owens Management 

Unit. There is accordingly no reason to 

believe that this exclusion would result 

in extinction of the species. 

Middle Rio Grande Management Unit, 

NM 

Rio Grande Valley State Park (City of 

Albuquerque) 

Within the Middle Rio Grande 

Management Unit lies the Rio Grande 

Valley State Park (Park), an area 

proposed as critical habitat for the 

flycatcher. The Park consists of the 

entire wooded riparian forest and 

associated floodway of the Rio Grande 

within Bernalillo County, NM, with 

minor exceptions (e.g., Pueblo lands, 

private lands, land within the Village of 

Corrales, and bridge rights-of-way). The 

Park is approximately 1,756 ha (4,340 

ac), of which 1,060 ha (2,620 ac) are 

riparian forest (bosque) and 696 ha 

(1,720 ac) are floodway of the Rio 

Grande. Its outer boundaries are service 

roads that run along the land-side of 

several main riverside drains. The City 

of Albuquerque (City) has managed the 

Park since 1983 under legal authority 

granted by the State of New Mexico. 

The City is designated by State law to 

manage the Park ‘‘in such a manner as 

to protect and enhance the scenic and 

natural values of the Rio Grande,’’

NMSA § 16–4–14 (D). It has done so 

since 1983 pursuant to a series of 

conservation-based management plans 

through the City’s Open Space Division. 

In 1987 the City wrote a Management 

Plan emphasizing bosque management 

to conserve, preserve, protect, enhance 

and diversify the riparian ecosystem. 

Even though the Management Plan was 

developed before the listing of the 

flycatcher, the plan includes actions 

needed to provide conservation 

measures to the flycatcher. A 1993 

Bosque Action Plan, written by the City 

of Albuquerque Parks and General 

Services Department and adopted by the 

City Council, includes preservation and 

conservation of vegetation and wildlife 

communities including the flycatcher 

and the habitat upon which it depends. 

Over the past decade the City’s plans 

and management initiatives have 

focused increasingly on habitat 

restoration and management for 

endangered species, including the 

flycatcher. In 1999 a number of parties 

came together to develop a constructive 

solution that would resolve conflicts 

and benefit the flycatcher and Rio 

Grande silvery minnow. The City is one 

of these parties which signed a 

Memorandum of Understanding in 

April 2002 as the Middle Rio Grande 

ESA Collaborative Program (Program). 

The Program was created by Senator 

Domenici of New Mexico in 2000 and 

has since been funded through the 

Energy and Water Development 

Appropriations Subcommittee. The 

Program’s goal is to contribute to the 

survival and recovery of the flycatcher 

and Rio Grande silvery minnow in the 

Middle Rio Grande basin. Most recently, 

the City’s 2005 Environmental 

Enhancement Plan (EEP) includes 

numerous new revegetation and offchannel water improvements intended 

specifically to enhance flycatcher 

habitat. It focuses on establishing and 

maintaining a mosaic of habitat types 

and vegetation/plant communities 

within the Park. The City’s commitment 

to managing established plant 

communities will ensure long-term 

sustainability of habitats preferred by 

and beneficial to the flycatcher. The EEP 

and current management of the Park 

represent a culmination of previous 

plans and ongoing research and 

management efforts. 

The Park is contained within a highly 

urbanized environment and the EEP 

also focuses on the serious threat to 

public health and safety posed by 

bosque wildfire. Consistent with its 

mandate to manage the Park to protect 

and enhance the scenic and natural 

environment, the City manages the Park 

to prevent catastrophic wildfire. The 

threat to the public was made clear by 

the devastating bosque fires of 2003 in 

the Park. Major fires consumed over 162 

ha (400 ac) of bosque, or approximately 

60972 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

1⁄6 of the riparian forest in Bernalillo 

County. These fires destroyed or 

threatened homes and lives and also 

resulted in serious damage to wildlife 

habitat. 

The U.S. Army Corps of Engineers 

(Corps) was initially requested to assist 

with restoration of these burn areas and 

other work needed to improve access 

and prevent future fires. In January of 

2004, the Corps was authorized to assist 

local efforts of this type. Pursuant to the 

authority of Public Law 108–137, 

Operations and Maintenance, Section 

116, which states: ‘‘the Secretary of the 

Army, acting through the Chief of 

Engineers, is authorized to undertake 

appropriate planning, design, and 

construction measures for wildfire 

prevention and restoration in the 

Middle Rio Grande bosque in and 

around the City of Albuquerque. Work 

shall be directed toward those portions 

of the bosque which have been damaged 

by wildfire or are in imminent danger of 

damage from wildfire due to heavy fuel 

loads and impediments to emergency 

vehicle access.’’ 

High fuel loads that have accumulated 

over the past 50 years and growth of 

non-native species have added to the 

danger of fire in the bosque. Over the 

last five to ten years, this threat has 

grown due to drought conditions 

throughout the west causing the buildup of dead material to become 

extremely dry. Because of the proximity 

of structures to the bosque, the threat to 

human health and property is of 

imminent concern. In August 2004, we 

consulted on the Bosque Wildfire 

Project, Bernalillo and Sandoval 

Counties, New Mexico (Bosque Wildfire 

Project) with the Army Corps of 

Engineers (U.S. Army Corps of 

Engineers 2004; USFWS 2004a). The 

Bosque Wildlfire Project was designed 

to reduce the fuel loading in the bosque, 

as well as improving access for fire 

fighter safety, in case a fire were to 

break out. The project began in 

September 2004 and should be complete 

by March 2006. We found that the 

overall project and revegetation 

activities would begin to restore the 

bosque and improve habitat over the 

long-term for the flycatcher. Therefore, 

potential project modifications are 

likely to be minimal, given the 

beneficial nature of the current activities 

and projects. We note that protecting 

human life and property is the highest 

priority in the wildland urban interface. 

In addition, threats of wide-scale habitat 

loss due to fire are real and immediate 

on many private and public lands. As 

such, we will continue to encourage 

efforts such as this project to reduce the 

risk of wildfire, while conducting 

habitat restoration activities. 

The City’s response to these fires was 

to utilize State and Federal resources to 

accelerate broad-scale fuels reduction 

within the Park. The City’s fire 

suppression program, developed in 

concert with State and Federal agencies, 

is part of the 2005 EEP and is largely 

based on thinning of the thick 

accumulations of dead and down 

vegetation; and replacement of nonnative species with cottonwoods, 

willow, and other native species. Over 

526 ha (1,300 ac) were treated in a sixmonth period; 890 ha (2,200 ac) (nearly 

85%) of the riparian forest had been 

treated or previously burned by the 

beginning of May 2005. The only 

untreated areas remaining are those 

scheduled for habitat restoration 

projects in the fall of 2005, or selected 

research sites, which will have fuels 

reduction at a later date. The outcome 

of these public safety actions has been 

to greatly alter the former hazardous 

conditions within the Park in order to 

favor re-establishment of native 

vegetation communities. 

The loss of bosque due to fire and the 

vegetation management to reduce the 

threat of future fire destruction has 

created the opportunity to recreate a 

healthy native bosque. The 

circumstances have allowed the Park to 

analyze the bosque ecosystem and plan 

for a mosaic of plant community types 

that will benefit the wildlife, including 

the flycatcher. Plant communities are 

proposed that would significantly 

improve the existing habitats in the Park 

to those more beneficial to the 

flycatcher. Acreages of restored undercanopy species, thickets of native 

shrubs, and plantings at edges of 

standing or slow-moving water are 

identified. Suitable vegetation structure 

is but one side of an equation for 

potential flycatcher habitat; proximity to 

water is also a vital consideration. 

Planned features include created or 

enhanced wetland or outfall channels, 

moist soil depressions, and overbank 

flooding areas. Several Park zones are 

considered ‘‘special management areas’’ 

due to their high habitat values or 

unique existing characteristics and will 

be managed for the flycatcher. All of 

these feature types are proposed as part 

of the EEP and will work towards 

sustained conservation for the 

flycatcher. 

(1) Benefits of Inclusion 

We believe that there is minimal 

benefit from designating critical habitat 

for the southwestern willow flycatcher 

within the Park because, as explained 

above, these lands are already managed 

for the conservation of flycatcher. 

As stated in the environmental 

assessment, the primary conservation 

value of the proposed critical habitat 

segments is to sustain existing 

populations. The threshold for reaching 

destruction or adverse modification on 

Park lands would likely require a 

reduction in the capability of the habitat 

to sustain existing populations. 

Currently, the only territories known are 

immediately downstream of the Park, so 

the only populations expected to use 

this area are migrant or dispersing 

southwestern willow flycatchers. As 

noted above, a consultation with the 

Corps for restoration and fire prevention 

activities within the Park was finalized 

in 2004 at which time we concurred that 

the project ‘‘may affect, but is not likely 

to adversely affect’’ the flycatcher. The 

Service recognized the beneficial effects 

to flycatcher habitat from the Corps’ 

proposed activities to reduce the risk of 

catastrophic wildfire and to reestablish 

native vegetation. Because southwestern 

willow flycatchers use the Park as 

habitat for migration and dispersal, the 

scope of our analysis in this 

consultation already included 

consideration of the effects to flycatcher 

habitat and determined that the project 

provides benefits to the flycatcher 

through reducing the risk of wildfire 

that can destroy its habitat and through 

the restoration of native riparian 

vegetation. 

Given the consultation history and the 

fact that these lands are managed in a 

way that provide a conservation benefit 

for the flycatcher, it is highly unlikely 

that projects would be considered that 

would result in a depreciable 

diminishment or long-term reduction of 

the capability of the habitat to sustain 

existing populations. To the contrary, 

activities occurring on these lands will 

provide benefits to the flycatcher by 

restoring, improving, and protecting its 

habitat. 

We believe the conservation measures 

for the flycatcher that are occurring or 

will be used in the future in the Park 

(i.e., riparian restoration and fire 

prevention measures) provide as much, 

and possibly more benefit than would 

be achieved through section 7 

consultations involving consideration of 

critical habitat using a conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. This 

is because management that is occurring 

or future activities will be the same 

activities which would be implemented 

in order to maintain or restore flycatcher 

habitat. 

We believe that there would be little 

additional informational benefit gained 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60973 

from including the Park within the 

designation because the final rule 

identifies all areas that are essential to 

the conservation of the flycatcher, 

regardless of whether all of these areas 

are included in the regulatory 

designation. Consequently, we believe 

that the informational benefits are 

already provided for areas that are being 

excluded from the designation of critical 

habitat. 

(2) Benefits of Exclusion 

The proposed critical habitat 

designation would be an administrative 

and economic burden to the ongoing 

ecological stewardship of the Park by 

the City, and the multi-agency 

cooperative projects now planned. The 

costs of section 7 consultations for the 

Corps and non-Federal project 

proponents would increase due to the 

administrative costs associated with 

allocating staff time to the consultation 

process, costs associated with delay of 

thinning and revegetation activities 

until consultations are completed, and 

direct monetary expenditures associated 

with potential project delays. As such, 

the benefits of excluding the Park from 

the designation include a reduction in 

administrative costs associated with 

engaging in consultations pursuant to 

section 7 of the Act. 

Designation could thwart ongoing 

conservation efforts by the City and by 

others, adding additional regulatory 

burdens. The Corps also has an ongoing 

revitalization project that will create a 

32 km (20 mi) aquatic park/wetland 

along the Middle Rio Grande (Tingley 

Beach) (USFWS 2004). There has been 

some concern that critical habitat 

designation for the flycatcher may 

hinder the efforts of these programs. 

Effects to actions planned by these 

programs to date has been similar to 

those experienced by other saltcedar 

removal and vegetation management 

projects, primarily including avoiding 

removal of vegetation during flycatcher 

breeding season (USFWS 2005a). Costs 

and any potential delays for reinitiation 

of consultation will be minimized by 

excluding this area from designated 

critical habitat. 

The City’s collective management 

plans for the Park represent a complete 

and comprehensive program, which will 

provide a conservation benefit to the 

flycatcher. The City’s management of 

the Park is consistent with the recovery 

plan for the flycatcher; the collective 

plans implement or propose to 

implement many of the conservation 

measures set forth in the flycatcher 

recovery plan. The City’s various 

management plans provide assurances 

that the management will be 

implemented. Indeed, as noted, the City 

is mandated by State law to manage the 

Park. Finally, the collective plans 

provide assurances that management of 

the Park will be effective in providing 

benefits to the southwestern willow 

flycatcher through continued 

monitoring and reporting, among other 

things, and the City’s management of 

the Park is of a perpetual nature. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, we believe that the 

benefits of excluding the Park from 

critical habitat for the flycatcher 

outweigh the benefits of its inclusion in 

critical habitat. Including this area may 

result in some benefit through 

additional consultations with those 

whose activities may affect critical 

habitat. However, overall this benefit is 

minimal because the Park is currently 

being managed in a manner that 

provides a conservation benefit to the 

flycatcher. On the other hand, exclusion 

will greatly benefit the expeditious 

completion of scheduled bosque 

restoration activities for the fall of 2005 

and will encourage the ongoing 

management for the sustainability of 

flycatcher habitat. It will recognize the 

benefits to conservation of the flycatcher 

in the management plans and the multiagency collaborative efforts that are 

based on the premise that it is better to 

work in the spirit of cooperation to 

develop solutions to shared problems 

regarding resource management and 

meeting the needs of our endangered 

species. It will also recognize the need 

to manage the bosque, a wildland-urban 

interface, for health and human safety. 

We also find that the exclusion of 

these lands will not lead to the 

extinction of the species, nor hinder its 

recovery because Park projects follow 

the guidelines set by the Recovery Plan 

for the flycatcher thereby providing a 

benefit to the flycatcher and its habitat. 

In addition, proposed projects will still 

require consultation pursuant to section 

7 as a result of the species presence 

under the jeopardy standard and, as 

discussed above, the mandate of the 

Park is to manage this area for the 

protection and enhancement of the 

scenic and natural environment and 

prevent catastrophic wildfire. 

Kern Management Unit, CA 

Hafenfeld Ranch Conservation Easement 

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

to consider other relevant impacts, in 

addition to economic impacts, of 

designating critical habitat. One 

approximately 37 ha (93 ac) parcel 

(Hafenfeld Parcel) located on lands 

owned by the Hafenfeld Ranch in the 

proposed Kern Management Unit 

warrants exclusion from the final 

designation of critical habitat under 

section 4(b)(2) of the Act because we 

have determined that the benefits of 

excluding the Hafenfeld Parcel from the 

critical habitat designation will 

outweigh the benefits of including it in 

the final designation based on the 

special management considerations and 

protections afforded for southwestern 

willow flycatcher habitat through a 

conservation easement and 

Conservation Plan developed by the 

Natural Resources Conservation Service 

(NRCS). The following represents our 

rationale for excluding the Hafenfeld 

Parcel from the final designated critical 

habitat for the southwestern willow 

flycatcher in the Kern Management 

Unit. 

The dominant vegetation in the Kern 

Management Unit is mature willows 

(Salix gooddingii, S. lasiandra, and S. 

laevigata) and Fremont cottonwood 

(Populus fremontii). Other plant 

communities of the Kern Management 

Unit include open water, wet meadow, 

and riparian uplands. Approximately 

9.3 ha (23 ac) of mature riparian forest 

habitat is found on the Hafenfeld Parcel, 

mainly located along the braided 

channels of the Kern River that meander 

through the parcel. Portions of the 

Hafenfeld Parcel are seasonally flooded, 

forming fragmented wetland 

communities throughout the area. The 

remainder of the parcel consists of wet 

meadow and riparian upland habitats, 

consistent with the character of habitats 

located throughout the larger Kern 

Management Unit. The Hafenfeld Parcel 

completes a continuous corridor of 

willow-cottonwood riparian habitat 

along the south fork of the Kern River 

that connects the east and west 

segments of the Audubon Society’s Kern 

River Preserve, which is known to be 

occupied by the southwestern willow 

flycatcher. The southwestern willow 

flycatcher has been documented on the 

Kern Management Unit, which includes 

the Hafenfeld Parcel. The Hafenfeld 

Parcel is currently protected under an 

Easement and Conservation Plan 

developed by the NRCS. 

We proposed as critical habitat, but 

have now excluded from the final 

designation, as described below, 

portions of the Hafenfeld property 

within the Kern Management Unit. 

(1) Benefits of Inclusion 

We believe that there is minimal 

benefit from designating critical habitat 

for the southwestern willow flycatcher 

within portions of the Hafenfeld 

property because, as explained above, 

60974 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

these lands are already managed for the 

conservation of flycatcher. 

As stated in the environmental 

assessment, the primary conservation 

value of the proposed critical habitat 

segments is to sustain existing 

populations. The threshold for reaching 

destruction or adverse modification on 

the Hafenfeld property would likely 

require a reduction in the capability of 

the habitat to sustain existing 

populations. Given that these lands are 

managed for the benefit of the flycatcher 

it is highly unlikely that projects would 

be considered for this area that would 

result in depreciable diminishment or a 

long-term reduction of the capability of 

the habitat to sustain existing 

populations. To the contrary, activities 

occurring on these lands have provided 

benefits to the flycatcher by restoring, 

improving, and protecting its habitat. 

As described above, the Hafenfeld 

property proposed for critical habitat 

may have additional conservation value 

above sustaining existing populations, 

because they are managing these lands 

to improve, protect, and possibly 

expand upon the amount of nesting 

habitat that would provide for growth of 

existing populations. Expansion of 

existing populations in these areas 

would be an element of recovering the 

southwestern willow flycatcher. 

Accordingly, and as further discussed 

above in the ‘‘General Principles of 

Section 7 Consultations Used in the 

4(b)(2) Balancing Process’’ section, 

through section 7 consultations that 

may occur, some benefit may incur 

through the adverse modification 

standard and whether or not the activity 

results in a reduction in the suitability 

of the habitat to support expansion of 

existing populations. However, because 

formal consultations will likely result in 

only discretionary conservation 

recommendations (i.e., adverse 

modification threshold is not likely to 

be reached), we believe there is an 

extremely low probability of mandatory 

elements (i.e., reasonable and prudent 

alternatives) arising from formal section 

7 consultations that include 

consideration of designated 

southwestern willow flycatcher critical 

habitat. 

We believe the conservation measures 

for the flycatcher on the Hafenfeld 

property that include the activities 

described in this section that include 

willow planting and management of 

surface flows to achieve the optimal 

flooding regime for the enhancement of 

important riparian and wetland habitat 

provide as much benefit than would be 

achieved through section 7 

consultations involving consideration of 

critical habitat. This is because they are 

already implementing actions that 

restore and maintain flycatcher habitat. 

As discussed in the ‘‘Educational 

Benefits of Critical Habitat’’ section 

above, we believe that there would be 

little additional informational benefit 

gained from including the Hafenfeld 

property within the designation because 

this area was included in the proposed 

rule as having essential flycatcher 

habitat. Consequently, we believe that 

the informational benefits are already 

provided even though this area is not 

designated as critical habitat. 

Additionally, in light of the existing 

Easement and Conservation Plan 

executed between the Hafenfeld Ranch 

and the NRCS, we believe that an 

education benefit has largely been 

achieved. 

(2) Benefits of Exclusion 

The southwestern willow flycatcher 

occurs on public and private lands 

throughout the Kern Management Unit. 

Proactive voluntary conservation efforts 

by private or non-Federal entities are 

necessary to prevent the extinction and 

promote the recovery of the 

southwestern willow flycatcher in the 

Kern Management Unit. 

The Hafenfeld Parcel is managed in 

such a way as to promote the 

conservation of the southwestern 

willow flycatcher through provisions of 

the Conservation Plan developed by the 

NRCS. Management activities include: 

(1) Limiting public access to the site, (2) 

winter-only grazing practices (outside of 

the flycatcher nesting season), (3) 

protection of the site from development 

or encroachment, (4) maintenance of the 

site as permanent open space that has 

been left predominantly in its natural 

vegetative state, and (5) the spreading of 

flood waters which promotes the 

moisture regime and wetland and 

riparian vegetation determined to be 

essential for the conservation of the 

southwestern willow flycatcher. Other 

prohibitions of the easement which 

would benefit the conservation of the 

southwestern willow flycatcher include: 

(1) Haying, mowing or seed harvesting; 

(2) altering the grassland, woodland, 

wildlife habitat, or other natural 

features; (3) dumping refuse, wastes, 

sewage, or other debris; (4) harvesting 

wood products; (5) draining, dredging, 

channeling, filling, leveling, pumping, 

diking, or impounding water features or 

altering the existing surface water 

drainage or flows naturally occurring 

within the easement area; and, (6) 

building or placing structures on the 

easement. Funding for the 

implementation of the Conservation 

Plan is apportioned between the United 

States and the Hafenfeld Ranch by 

provisions of the Conservation 

Easement. 

We have determined that the 

southwestern willow flycatcher within 

properties covered by management 

plans or conservation strategies that 

protect or enhance the conservation of 

the species will benefit substantially 

from voluntary landowner management 

actions due to an enhancement and 

creation of riparian and wetland habitat 

and a reduction in risk of loss of 

riparian habitat. The conservation 

benefits of critical habitat are primarily 

regulatory or prohibitive in nature. 

Where consistent with the discretion 

provided by the Act, the Service 

believes it is necessary to implement 

policies that provide positive incentives 

to private landowners to voluntarily 

conserve natural resources and that 

remove or reduce disincentives to 

conservation (Wilcove et al. 1996; Bean 

2002). Thus, we believe it is essential 

for the recovery of the southwestern 

willow flycatcher to build on continued 

conservation activities such as these 

with a proven partner, and to provide 

positive incentives for other private 

landowners who might be considering 

implementing voluntary conservation 

activities but have concerns about 

incurring incidental regulatory or 

economic impacts. 

(3) The Benefits of Exclusion Outweigh 

the Benefits of Inclusion 

Based on the above considerations, 

we have determined that the benefits of 

excluding the Hafenfeld Parcel from 

critical habitat in the Kern Management 

Unit outweigh the benefits of including 

it as critical habitat for the southwestern 

willow flycatcher. 

The Hafenfeld Parcel is currently 

operating under a Conservation Plan to 

implement conservation measures and 

achieve important conservation goals 

through the conservation measures 

described above, as well as willow 

planting and management of surface 

flows to achieve the optimal flooding 

regime for the enhancement of 

important riparian and wetland habitat 

for the southwestern willow flycatcher. 

The Service believes the additional 

regulatory and educational benefits of 

including these lands as critical habitat 

are relatively small. The Service 

anticipates that the conservation 

strategies will continue to be 

implemented in the future, and that the 

funding for these activities will be 

apportioned in accordance with the 

provisions of the Conservation Plan. 

The designation of critical habitat can 

serve to educate the general public as 

well as conservation organizations 

regarding the potential conservation 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60975 

value of an area, but this goal is already 

being accomplished through the 

identification of this area in the 

Conservation Plan described above. 

Likewise, there will be little additional 

Federal regulatory benefit to the species 

because (a) there is a low likelihood that 

the Hafenfeld Parcel will be negatively 

affected to any significant degree by 

Federal activities requiring section 7 

consultation, and (b) we believe that 

based on ongoing management activities 

there would be no additional 

requirements pursuant to a consultation 

that addresses critical habitat. 

Excluding these privately owned 

lands with conservation strategies from 

critical habitat may, by way of example, 

provide positive social, legal, and 

economic incentives to other nonFederal landowners who own lands that 

could contribute to listed species 

recovery if voluntary conservation 

measures on these lands are 

implemented. 

In conclusion, we find that the 

exclusion of critical habitat on the 

Hafenfeld Parcel would most likely have 

a net positive conservation effect on the 

recovery and conservation of the 

southwestern willow flycatcher when 

compared to the positive conservation 

effects of a critical habitat designation. 

As described above, the overall benefits 

to these subspecies of a critical habitat 

designation for these properties are 

relatively small. In contrast, we believe 

that this exclusion will enhance our 

existing partnership with these 

landowners, and it will set a positive 

example and provide positive incentives 

to other non-Federal landowners who 

may be considering implementing 

voluntary conservation activities on 

their lands. We conclude there is a 

higher likelihood of beneficial 

conservation activities occurring in 

these and other areas for the 

southwestern willow flycatcher without 

designated critical habitat than there 

would be with designated critical 

habitat on these properties. 

We believe that exclusion of these 

lands will not result in the extinction of 

the southwestern willow flycatcher as 

these areas are considered occupied 

habitat. Actions which might adversely 

affect the species are expected to have 

a Federal nexus, and would thus 

undergo a section 7 consultation with 

the Service. The jeopardy standard of 

section 7 of the Act and routine 

implementation of habitat preservation 

through the section 7 process provide 

assurance that the species will not go 

extinct. In addition, the subspecies is 

protected from take under section 9 of 

the Act. The exclusion leaves these 

protections unchanged from those that 

would exist if the excluded areas were 

designated as critical habitat. 

Critical habitat is being designated for 

the subspecies in other areas that will be 

accorded the protection from adverse 

modification by Federal actions using 

the conservation standard based on the 

Ninth Circuit decision in Gifford 

Pinchot. Additionally, the flycatcher 

occurs on lands protected and managed 

either explicitly for the subspecies, or 

indirectly through more general 

objectives to protect natural values, this 

provides protection from extinction 

while conservation measures are being 

implemented. The subspecies also 

occurs on lands managed to protect and 

enhance wetland values under the 

Wetlands Reserve Program of the NRCS. 

Upper Gila Management Unit 

U-Bar Ranch 

Pacific Western Land Company 

(PWLC), a Phelps Dodge subsidiary, 

owns the U-Bar Ranch (Ranch) near 

Cliff, in Grant County New Mexico, in 

the Upper Gila Management Area. As 

discussed in the proposed rule, 

flycatchers have been detected nesting 

along stream segments in the Upper Gila 

Management Unit since 1993. In 1999, 

a high of 262 territories at 8 sites were 

detected; the Ranch had 209 of these 

territories. In 2003, 191 territories at 8 

sites were detected on the Gila River 

stream segments proposed as critical 

habitat and the Ranch had 123 of these 

territories. Many of the territories on the 

Ranch were found outside of the floodprone area, off-channel in habitat along 

irrigation ditches. This privately owned 

Ranch is an important site for the 

conservation and recovery of the 

flycatcher in Upper Gila Management 

Area. 

Through the efforts of PWLC and its 

long-time lessee, Mr. David Ogilvie, 

Phelps Dodge has demonstrated a 

commitment to management practices 

on the Ranch that have conserved and 

benefited the flycatcher population in 

that area over the past decade. In 

addition, Phelps Dodge has privately 

funded scientific research at and in the 

vicinity of the Ranch in order to develop 

data that has contributed to the 

understanding of habitat selection, 

distribution, prey base, and threats to 

the flycatcher. Considering the past and 

ongoing efforts of management and 

research to benefit the flycatcher, done 

in coordination and cooperation with 

the Service, we find the benefits of 

excluding areas of the U-Bar Ranch 

outweigh the benefits of including it in 

critical habitat. 

The U-Bar Ranch utilizes a 

management plan on its pastures within 

the Gila Valley that are north of the 

Highway 180 West Bridge and south of 

the boundary of the Gila National 

Forest. Eight pastures that incorporate 

approximately 1,372 ha (3,390 ac) are 

managed with a plan that is adapted 

annually for operation of livestock and 

farming enterprises. The management 

consists of a multifaceted and highly 

flexible rest-rotation system utilizing 

both native forage and irrigated fields. 

The Ranch’s numerous pastures allow a 

relatively dynamic rotation system that 

is modified based upon current 

conditions. Grazing use of river bottom 

pastures is monitored by daily visual 

inspections. Use of these pastures is 

limited to ensure that forage utilization 

levels are moderate and over-use does 

not occur. In addition, the riparian areas 

are monitored regularly, and riparian 

vegetation is allowed to propagate along 

the river as well as in irrigation ditches. 

Some specific management practices, 

varying in different pastures, which 

relate to the flycatcher and its habitat 

are: (1) Grazing is limited to November 

through April to avoid negative impacts 

during migration and nesting season; (2) 

animal units are adjusted to protect and 

maintain the riparian vegetation needed 

by the flycatcher; (3) the irrigation 

ditches are maintained, along with the 

vegetation, to benefit the flycatcher; (4) 

restoration efforts follow flood events 

that destroy habitat; and (5) herbicide 

and pesticides are only used in rare 

circumstances and are not used near 

occupied territories during breeding 

season. These flexible and adaptive 

management practices have resulted in 

the expansion, protection, and 

successful continuance of a large 

flycatcher population. 

In 1995, active restoration followed 

the flooding destruction of the Bennett 

Farm fields in the 162 ha (400 ac) River 

Pasture. The Bennett Restoration Project 

is a series of artificially created, flooded 

marshy areas located between irrigated 

and dry-land pastures and the river. The 

Bennett Restoration Project is a mosaic 

of vegetation in successional stages with 

dense patches and lines of young 

willows and cottonwoods occurring in 

manmade oxbows. The oxbows occur 

outside of the active flood channel 

behind a levee. Water is continuously 

present and the project has become a 

marshy habitat in which flycatcher 

nesting was noted in 1997 (Dave 

Ogilvie, pers. comm., 2005). The site 

now supports one of the higher numbers 

of territories on the U-Bar Ranch and in 

the Upper Gila Management Area. The 

2004 survey review resulted in 

recording 35 territories for the Bennett 

site (N. Baczek, USFWS, pers. com.). 

60976 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

The second-most successful nesting 

site on the U-Bar Ranch is in the Lower 

River Pasture. A significant feature of 

this riparian area is the amount of water 

it receives from adjacent irrigated fields. 

The Ranch has rehydrated ditches and 

no longer follows past land-use 

practices, which involved active 

clearing of woody vegetation from ditch 

banks. The Ranch has developed tree 

growth and a network of wooded strips 

in connection with the ditch-banks to 

attract breeding flycatchers. 

Besides land management practices, 

Phelps Dodge and the U-Bar Ranch have 

supported flycatcher surveys and 

research in the Gila valley since 1994. 

Surveyors are trained and permitted in 

coordination with the Service and 

survey results are submitted to the 

Service in annual reports. Flycatcher 

research on the Ranch has included: 

nest monitoring (sites, substrate, and 

success), diet, microhabitat use, climatic 

influences on breeding, cowbird 

parasitism, and distribution and 

characteristics of territories. Permits for 

studies are coordinated with the Service 

and reports are submitted to us for 

review and comments. The research 

provides information to apply to grazing 

and land management (David Ogilvie, 

May 30, 2005). A current study involves 

eliminating grazing in the Lower River 

Pasture, but continuing it in the Out 

Pasture and Bennett during flycatcher 

breeding season to evaluate the effect of 

grazing on nest success and population 

trends. 

(1) Benefits of Inclusion 

There are few benefits in including 

the U-Bar Ranch in the critical habitat 

designation above those that will be 

achieved through the implementation of 

their voluntary management and 

restoration projects. As discussed above, 

the principal benefit of any designated 

critical habitat is that activities affecting 

habitat require consultation under 

section 7 of the Endangered Species Act 

if a Federal action is involved. Such 

consultation would ensure that 

adequate protection is provided to avoid 

destruction or adverse modification of 

critical habitat. Since the U-Bar Ranch 

is privately owned, unless there is a 

Federal nexus in connection with their 

activities, the designation of critical 

habitat will not result in a consultation. 

Another possible benefit is that the 

designation of critical habitat can serve 

to educate the public regarding the 

potential conservation value of an area, 

and this may focus and contribute to 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for certain species. 

Any information about the flycatcher 

and its habitat that reaches a wide 

audience, including other parties 

engaged in conservation activities, 

would be considered valuable. 

However, the U-Bar Ranch is already 

working with the Service to address the 

conservation and recovery of the 

species. Further, the Ranch was 

included in the proposed designation, 

which itself has reached a wide 

audience, and has thus provided 

information to the broader public about 

the conservation value of this area. 

Thus, the educational benefits that 

might follow critical habitat designation 

have already been provided by 

proposing the area as critical habitat. 

For these reasons, then, we believe that 

designation of critical habitat would 

have few, if any, additional benefits 

beyond those that will result from 

continued consultation for the presence 

of the species. 

(2) Benefits of Exclusion 

We believe that significant benefits 

would be realized by excluding the UBar Ranch that include: (1) The 

continuance and strengthening of our 

effective cooperative relationship with 

the Ranch to promote the conservation 

of the flycatcher and its habitat; (2) the 

allowance for continued meaningful 

collaboration and cooperation in 

surveys, nest monitoring, and research 

as we work towards recovery of the 

species; and (3) the provision of 

conservation benefits to the Gila River 

ecosystem and the flycatcher and its 

habitat that might not otherwise occur. 

As mentioned above, the U-Bar Ranch 

is an important land manager in the 

Upper Gila Management Unit. The 

surveys, conservation, restoration and 

management information submitted by 

the Ranch document that meaningful 

collaborative and cooperative work for 

the flycatcher and its habitat will 

continue on their land. The Ranch has 

committed to several ongoing or future 

management, restoration, enhancement, 

and survey activities that may not occur 

if we were to designate critical habitat 

on the Ranch. We believe that the 

results of these activities promote longterm protection and conserve the 

flycatcher and its habitat on the Ranch 

land. The benefits of excluding this area 

from critical habitat will encourage the 

continued conservation, land 

management, and coordination with the 

Service. If this area is designated as 

critical habitat, we may jeopardize 

future conservation, research, and 

information sharing for the recovery of 

the flycatcher. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In summary, the benefits of including 

the U-Bar Ranch in critical habitat are 

small, and are limited to insignificant 

educational benefits since these lands 

are privately owned and the trigger for 

section 7 consultation is lacking. The 

benefits of excluding this area from 

designation as critical habitat for the 

flycatcher are significant, and include 

encouraging the continuation of 

adaptive management measures such as 

monitoring, surveys, research, 

enhancement, and restoration activities 

that the Ranch currently implements 

and plans for the future. The exclusion 

of this area will likely also provide 

additional benefits to the species by 

encouraging and maintaining a 

cooperative working relationship with 

the Ranch. We find that the benefits of 

excluding this area from critical habitat 

designation outweigh the benefits of 

including this area. 

We have determined that exclusion of 

areas of the Ranch will not result in 

extinction of the species. The Ranch is 

committed to greater conservation 

measures on their land than would be 

available through the designation of 

critical habitat. Accordingly, we have 

determined that areas of the U-Bar 

Ranch should be excluded under 

subsection 4(b)(2) of the Act because the 

benefits of exclusion outweigh the 

benefits of inclusion and will not cause 

the extinction of the species. 

TABLE 4.—TOTAL SIZE OF FINAL CRITICAL HABITAT FOR THE SOUTHWESTERN WILLOW FLYCATCHER, INCLUDING AREAS

EXCLUDED AND EXEMPTED FROM THE FINAL DESIGNATION

Total area identified in proposal as containing essential features ............................................................................................ 143486 (354562) 

Areas exempted under section 4(a)(3) of the Act: Camp Pendleton and Fallbrook Naval Weapons Station ......................... 1793 (4430) 

Exclusion of areas under section 4(b)(2) of the Act: HCP plan areas including Western Riverside County, CA, Multiple 

Species Habitat Conservation Plan; San Diego County, CA, Multiple Species Conservation Plan; City of Carlsbad, CA, 

Habitat Management Program; Lower Colorado River, CA/AZ Multiple Species Conservation Plan; Roosevelt, AZ Habitat Conservation Plan ............................................................................................................................................................. 27494 (67940) 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60977 

TABLE 4.—TOTAL SIZE OF FINAL CRITICAL HABITAT FOR THE SOUTHWESTERN WILLOW FLYCATCHER, INCLUDING AREAS

EXCLUDED AND EXEMPTED FROM THE FINAL DESIGNATION—Continued 

Exclusion of Tribes and Pueblos under section 4(b)(2) of the Act that have completed Southwestern Willow Flycatcher 

Management Plans and/or have developed flycatcher habitat specific partnerships with the Service: Hualapai, 

Chemehuevi, Colorado River, Fort Mojave, Quechan (Fort Yuma), Yavapai-Apache, and San Carlos Tribes in AZ, La 

Jolla, and Rincon Tribes in CA; Isleta, San Illdefonso, Santa Clara, and San Juan Pueblos in NM ................................... 10480 (25897) 

Exclusion of National Wildlife Refuges under section 4(b)(2) of the Act with completed CCPs or developed management 

programs/strategies for the southwestern willow flycatcher habitat: Pahranagat, NV; Havasu, Cibola, Imperial, and Bill 

Williams in AZ, Alamosa, CO; Bosque del Apache and Sevilleta, NM ................................................................................. 18788 (46427) 

Exclusion of State and Federal Wildlife Areas under section 4(b)(2) of the Act with plans/programs for the management 

and protection of southwestern willow flycatcher habitat: Overton and Key Pittman Wildlife Area, NV; Alamo Wildlife 

Area, AZ; Kern River Wildlife Area and Sprague Ranch, CA ............................................................................................... 5199 (12847) 

Exclusions of partnerships, management plans/programs or easements under section 4(b)(2) of the Act that provide protections specific to southwestern willow flycatcher habitat: Los Angeles Department of Water and Power-Owens River 

Southwestern Willow Flycatcher Conservation Strategy; San Luis Valley, CO, Partnership; Hafenfeld Ranch—Kern 

River, CA; Salt River Project Partnership—Horseshoe Lake, AZ; U-Bar Ranch—Gila River, NM; Rio Grande Valley 

State Park (City of Albuquerque), NM ................................................................................................................................... 30836 (76198) 

Total Final Critical Habitat ........................................................................................................................................... 48896 (120824) 

Section 7 Consultation 

The regulatory effects of a critical 

habitat designation under the Act are 

triggered through the provisions of 

section 7, which applies only to 

activities conducted, authorized, or 

funded by a Federal agency (Federal 

actions). Regulations implementing this 

interagency cooperation provision of the 

Act are codified at 50 CFR 402. 

Individuals, organizations, States, local 

governments, and other non-Federal 

entities are affected by the designation 

of critical habitat only if their actions 

occur on Federal lands, require a 

Federal permit, license, or other 

authorization, or involve Federal 

funding. 

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

Federal agencies, including us, to insure 

that their actions are not likely to 

jeopardize the continued existence of a 

listed species or result in the 

destruction or adverse modification of 

designated critical habitat. This 

requirement is met through section 7 

consultation under the Act. Our 

regulations define ‘‘jeopardize the 

continued existence of’’ as to engage in 

an action that reasonably would be 

expected, directly or indirectly, to 

reduce appreciably the likelihood of 

both the survival and recovery of a 

listed species in the wild by reducing 

the reproduction, numbers, or 

distribution of that species (50 CFR 

402.02). ‘‘Destruction or adverse 

modification of designated critical 

habitat’’ for this species would include 

habitat alterations that appreciably 

diminish the value of critical habitat by 

significantly affecting any of those 

physical or biological features that were 

the basis for determining the habitat to 

be critical. We are currently reviewing 

the regulatory definition of adverse 

modification in relation to the 

conservation of the species. 

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

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. Conference reports 

provide conservation recommendations 

to assist Federal agencies in eliminating 

conflicts that may be caused by their 

proposed actions. The conservation 

measures in a conference report are 

advisory. 

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 

60978 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

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: 

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. Each of the specific areas 

designated in this rule as critical habitat 

for the southwestern willow flycatcher 

have been determined to contain 

sufficient PCEs to provide for one or 

more of the life history functions for the 

flycatcher. In some cases, the PCEs exist 

as a result of ongoing Federal actions. 

As a result, ongoing Federal actions at 

the time of designation will be included 

in the baseline in any consultation 

pursuant to section 7 of the Act 

conducted subsequent to this 

designation. 

(1) Activities that appreciably 

diminish value or quality or habitat or 

primary constituent elements 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); 

(2) 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. This would not 

apply to the normal rise and fall of 

storage pools behind dams, as discussed 

below. 

(3) Permanent destruction/alteration 

of the species habitat by discharge of fill 

material, draining, ditching, tiling, pond 

construction, levee construction and 

stream channelization (i.e., due to roads, 

construction of bridges, impoundments, 

discharge pipes, stormwater detention 

basins, dikes, levees, etc.). 

(4) 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 

excessive brood parasitism by brownheaded 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 the 

primary 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. 

Riparian restoration can also cause a 

temporary loss of habitat through the 

actual removal of existing riparian 

vegetation. However, if this action is 

combined with positive site-specific 

evaluation (through an analysis of on 

the ground features such as groundwater 

elevation, etc.) and an implementation/ 

restoration plan (USFWS 2002) that 

together are expected to cause habitat to 

become of the same quality or better for 

the flycatcher, it would be expected that 

those types of restoration activities 

would not destroy or adversely modify 

critical habitat. Each proposed action 

will be examined pursuant to section 7 

of the Act in relation to its site-specific 

impacts. 

All lands designated as critical habitat 

are within the geographic area occupied 

by the subspecies and are essential for 

the conservation of southwestern 

willow flycatcher. Within the 15 

Management Units we are designating 

as critical habitat, only stream segments 

from the Santa Ana Management Unit 

(Santa Ana River, Bear Creek, Mill 

Creek, Oak Glen Creek, and Waterman 

Creek), San Diego Management Unit 

(Santa Margarita River, Temecula Creek, 

Agua Hedionda Creek, Santa Ysabel 

River, and Temescal Creek), Mohave 

Management Unit (Deep Creek, 

Holcomb Creek, and Mohave River), 

Virgin Management Unit (Virgin River 

in NV and UT), and Lower Colorado 

Management Unit (East Fork of the 

Little Colorado River and the Little 

Colorado River) were not known to be 

specific areas within the geographic area 

occupied by the species at the time of 

listing. Due to the wide geographic area 

this bird inhabits due to it being a neotropical migrant, in all likelihood, these 

areas were inhabited by southwestern 

willow flycatchers for nesting, 

dispersing, or migrating, but had not 

been detected or re-confirmed (some 

areas were historically occupied) until 

after the species became listed in 1995. 

Much of the increase in the distribution 

and abundance of southwestern willow 

flycatcher territories since listing has 

largely been a result of increase survey 

effort (Durst et al. 2005). We have 

provided our rationale for why these 

specific areas have features essential for 

the southwestern willow flycatcher. We 

consider all of the units designated as 

critical habitat, as well as those that 

have been excluded, to be essential to 

the conservation of the southwestern 

willow flycatcher and to contain 

features essential to the conservation of 

the subspecies. All Management Units 

are within the geographical range by the 

species, all are occupied by the species 

(based on observations made within the 

last 10 years), and are likely to be used 

by breeding, non-breeding, territorial, 

dispersing, or migrating southwestern 

willow flycatchers. Federal agencies 

already consult with us on actions that 

may affect southwestern willow 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60979 

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 Field Supervisor of the appropriate 

Service Office (see list below). In NM 

and AZ requests for copies of the 

regulations on listed wildlife and plants 

and inquiries about prohibitions and 

permits may be addressed to the U.S. 

Fish and Wildlife Service, Branch of 

Endangered Species, Post Office Box 

1306, Albuquerque, NM 87103–1306 

(telephone 505/248–6920; facsimile 

505/248–6922). 

Area/State Address Phone No. 

Southern CA ............................................ 6010 Hidden Valley Road, Carlsbad, CA 92011 ...................................................... 760/431–9440 

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

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

Nevada .................................................... 4701 North Torrey Pines Way, Las Vegas, NV 89130 ............................................. 702/515–5230 

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

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

New Mexico ............................................. 2105 Osuna Rd. NE, Albuquerque, NM 87113 ........................................................ 505/761–4718 

Economic Analysis 

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

to designate critical habitat on the basis 

of the best scientific and commercial 

information available, and to consider 

the economic 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 concerned. We conducted an 

economic analysis to estimate potential 

economic effects of the proposed 

southwestern willow flycatcher critical 

habitat designation (USFWS 2005a). The 

draft analysis was made available for 

public review on April 28, 2005 (70 FR 

21988). We accepted comments on the 

draft analysis until May 31, 2005, and 

once again between July 7 and July 18, 

2005 (70 FR 39227). 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

conservation of the southwestern 

willow flycatcher, including the 

designation of critical habitat. This 

information is intended to assist the 

Secretary in making decisions about 

whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. This economic 

analysis considers the economic 

efficiency effects that may result from 

the designation, including habitat 

protections that may be co-extensive 

with the listing of the species. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

This analysis focuses on the direct 

and indirect costs of the rule. However, 

economic impacts to land use activities 

can exist in the absence of critical 

habitat. These impacts may result from, 

for example, local zoning laws, State 

and natural resource laws, and 

enforceable management plans and best 

management practices applied by other 

State and Federal agencies. Economic 

impacts that result from these types of 

protections are not included in the 

analysis as they are considered to be 

part of the regulatory and policy 

baseline. The total conservation costs 

from reported efficiency effects 

associated with the designation of 

critical habitat in this rule are 

approximately $9 million from 2004 to 

2025. This total includes losses in land 

value (by far the primary cost source), 

as well as project modification, 

administrative, CEQA, delay, and 

uncertainty costs. 

A copy of the final economic analysis 

and description of the exclusion process 

with supporting documents are 

included in our administrative record 

and may be obtained by contacting the 

Arizona Ecological Services Fish and 

Wildlife Service office (see ADDRESSES

section) or retrieved at http:// 

www.fws.gov/arizonaes/. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule because it may raise novel legal and 

policy issues. However, based on our 

economic analysis, it is not anticipated 

that this designation of critical habitat 

for the southwestern willow flycatcher 

will result in an annual effect on the 

economy of $100 million or more or 

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 the proposed rule or 

accompanying economic analysis. 

Further, Executive Order 12866 

directs Federal Agencies promulgating 

regulations to evaluate regulatory 

alternatives (Office of Management and 

Budget, Circular A–4, September 17, 

2003). Pursuant to Circular A–4, once it 

has been determined that the Federal 

regulatory action is appropriate, then 

the agency will need to consider 

alternative regulatory approaches. Since 

the determination of critical habitat is a 

statutory requirement pursuant to the 

Endangered Species Act of 1973, as 

amended (Act) (16 U.S.C. 1531 et seq.), 

we must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts pursuant to 

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

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweighs the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination 

thereof, in a designation constitutes our 

regulatory alternative analysis. 

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 

SBREFA), whenever an agency is 

required to publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

60980 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

for public comment a regulatory 

flexibility analysis that describes the 

effect 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 an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Based upon our draft economic analysis 

we certified in our July 7, 2005 (70 FR 

39227), Federal Register notice that this 

designation would not result in a 

significant effect as defined under 

SBREFA. 

According to the Small Business 

Administration (SBA), small entities 

include small organizations, such as 

independent nonprofit organizations 

and small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents, as well as small 

businesses (13 CFR 121.201). Small 

businesses include manufacturing and 

mining concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term significant economic 

impact is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if this designation of 

critical habitat for the southwestern 

willow flycatcher would affect a 

substantial number of small entities, we 

considered the number of small entities 

affected within particular types of 

economic activities (e.g., water 

management and supply, livestock 

grazing, land development, recreation). 

We considered each industry or 

category individually to determine if 

certification is appropriate. In 

estimating the numbers of small entities 

potentially affected, we also considered 

whether their activities have any 

Federal involvement; some kinds of 

activities are unlikely to have any 

Federal involvement and so will not be 

affected by the designation of critical 

habitat. Designation of critical habitat 

only affects activities conducted, 

funded, permitted or authorized by 

Federal agencies; non-Federal activities 

are not affected by the designation. 

Federal agencies must consult with us if 

their activities may affect designated 

critical habitat. Consultations to avoid 

the destruction or adverse modification 

of critical habitat would be incorporated 

into the existing consultation process. 

In our economic analysis we 

evaluated the potential economic effects 

on small business entities and small 

governments resulting from 

conservation actions related to the 

listing of this species and proposed 

designation of its critical habitat. We 

evaluated small business entities in four 

categories: dam operations and water 

supply activities, and by extension, crop 

agriculture, ranching activities, 

residential development, and businesses 

affected by changes to recreational use. 

The following summary of the 

information contained in Appendix A of 

the final economic analysis provides the 

basis for our determination. 

Dam Operations and Water Supply 

Activities 

Under scenario two analyzed in the 

draft economic analysis, water operators 

are assumed to be required to change 

their management regimes to avoid 

adverse effects to southwestern willow 

flycatcher habitat, resulting in a loss of 

water for beneficial use (i.e. reservoir 

pools will be limited to current levels in 

order to avoid inundation of 

southwestern willow flycatcher habitat). 

Facilities assessed under this scenario 

include Lake Hodges, Cuyamaca 

Reservoir, Vail Dam, Pleasant Valley 

Reservoir (i.e. Owens River), Isabella 

Dam, Hoover Dam, Parker Dam, Alamo 

Dam, Roosevelt Dam, and Horseshoe 

Dam. No small businesses would be 

directly affected under this scenario 

because dams are not operated by small 

businesses. Additionally, as described 

elsewhere in this rule, these reservoirs 

have been excluded from the 

designation pursuant to section 4(b)(2) 

of the Act. Therefore no impacts to these 

water operators will result from a 

critical habitat designation. 

Some water users may be more 

directly affected by changes in water 

supply that could occur as a result of 

southwestern willow flycatcher 

conservation activities, specifically, 

agricultural users dependent on the 

drought reserves provided by these 

systems. Appendix A of the draft 

economic analysis provides a profile of 

the agricultural users that are at greatest 

risk from direct losses in water supply 

under this scenario. The four water 

systems that provide water to 

agricultural users include Lake Isabella 

(including the North Kern Water Storage 

District, the Buena Vista Storage 

District, and the City of Bakersfield 

Water Resources Department); Roosevelt 

and Horseshoe (the Salt River Project 

operates six reservoirs and dams on the 

Salt and Verde Rivers); Coolidge Dam 

(San Carlos Irrigation Project); and 

Lower Colorado River (water from the 

Colorado River is diverted to six States 

and is used for every purpose, including 

agricultural uses). As described 

elsewhere in this rule, these reservoirs 

have been excluded from the 

designation pursuant to section 4(b)(2) 

of the Act. Therefore no direct impacts 

to these water users, as described above 

and in Appendix A of the economic 

analysis, will result from a critical 

habitat designation. 

Water users in the Safford Valley on 

the Gila River, Arizona, expressed 

concerns that groundwater and/or 

surface water withdrawals could need to 

be curtailed to accommodate flycatcher 

concerns. Water withdrawals have not 

been impacted under past operations, 

even during the period when critical 

habitat for the flycatcher was previously 

designated. As stated in the ‘‘Section 7’’

section above, ongoing Federal actions 

at the time of designation will be 

included in the baseline in any 

consultation pursuant to section 7 of the 

Act conducted subsequent to this 

designation. Therefore, we do not 

anticipate a significant economic impact 

to water users on the Gila River. 

Ranching Activities 

The economic analysis assumes that, 

in the future, grazing efforts on areas 

included in the proposed designation 

will be reduced, or, in the high-end 

estimate, be eliminated due to flycatcher 

concerns. Based on this analysis, the 

high impact scenario for allotments in 

the proposed critical habitat is a 

reduction of 89,400 AUMs (animal unit 

months) over 20 years. Of the total 

AUMs lost, 1,200 are federally 

permitted and 88,000 are private. 

Converting AUM reductions to cattle 

reductions reveals that the 37 affected 

counties may lose a total of 3,385 head 

of beef cattle, or 0.6 percent of the total 

number of beef cattle in the affected 

region. Even for counties for which 

percentage losses appear relatively 

large, absolute losses per average size 

ranch are one to three cows over a 

twenty year period. 

Residential Development 

Impacts to development activities 

within the proposed designation 

include land value loss, other project 

modifications, California Environmental 

Quality Act costs, and project delay 

costs in the Mojave and Santa Ana 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60981 

Management Units in California. The 

economic analysis determines that less 

than 1 percent of land developers will 

be affected, and 0.02 percent of annual 

revenues of small land developers in 

this area may be lost. 

Recreation Activities 

Impacts to recreation activities 

include limitations on vehicle use, fires, 

and cigarette smoking in two areas near 

Roosevelt Lake on the Tonto National 

Forest, and fewer trips to the area for 

hunting and fishing for a total annual 

impact of approximately 0.25 percent of 

annual small business revenues in Gila 

County. As described elsewhere in this 

rule, Roosevelt Lake has been excluded 

from the designation pursuant to section 

4(b)(2) of the Act. Therefore, no direct 

impacts to recreation activities at 

Roosevelt Lake will result from a critical 

habitat designation. 

Based on this data we have 

determined that the designation of 

critical habitat will not affect a 

substantial number of small businesses 

involved in or affected by water 

management and supply activities, 

livestock grazing, land development, 

and recreation. Further, we have 

determined that the designation will not 

result in a significant effect to the 

annual sales of those small businesses 

impacted by this designation. As such, 

we are certifying that the final 

designation of critical habitat will not 

result in a significant economic impact 

on a substantial number of small 

entities. Please refer to Appendix A of 

our economic analysis for this 

designation for a more detailed 

discussion of potential economic 

impacts to small business entities. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order (E.O.) 13211 on 

regulations that significantly affect 

energy supply, distribution, and use. 

E.O. 13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This rule is 

considered a significant regulatory 

action under E.O. 12866 due to it 

potentially raising novel legal and 

policy issues, but it is not expected to 

significantly affect energy supplies, 

distribution, or use. Appendix B of the 

economic analysis provides a detailed 

discussion and analysis of this 

determination. Specifically, two criteria 

were determined to be relevant to this 

analysis: (1) Reductions in electricity 

production in excess of 1 billion 

kilowatt-hours per year or in excess of 

500 megawatts of installed capacity, and 

(2) increases in the cost of energy 

production in excess of 1 percent. The 

draft analysis finds that no net 

reduction in electricity production is 

anticipated, and thus we do not 

anticipate that the suggested OMB 

threshold of 1 billion kilowatt hours 

will be exceeded. In addition, total 

financial impacts related to 

southwestern willow flycatcher 

conservation activities ($2.7 million 

annually) represent 0.02 percent of the 

estimated annual baseline cost of 

regional energy production, and this is 

well below the 1 percent threshold 

suggested by OMB. Therefore, this 

action is not a significant action, and no 

Statement of Energy Effects is required. 

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, or 

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. Non-Federal 

entities that receive Federal funding, 

assistance, permits, or otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat. However, the legally binding 

duty to avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal 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) The economic analysis discusses 

potential impacts of critical habitat 

designation for the southwestern willow 

flycatcher on water management 

activities, administrative costs, livestock 

grazing, mining, residential and 

commercial development activities, 

Tribes, transportation activities, 

recreation activities, and fire 

management activities. The analysis 

estimates that annual costs of the rule 

could range from $32.7 to $38.00 

million annually using the most likely 

costs scenario. Impacts are largely 

anticipated to affect water operators and 

Federal and State agencies, with some 

effects on livestock grazing operations, 

land development activities, and 

recreation activities. Impacts on small 

governments are not anticipated, or they 

are anticipated to be passed through to 

consumers. For example, costs to water 

operations would be expected to be 

passed on to consumers in the form of 

price changes. Consequently, for the 

reasons discussed above, we do not 

believe that the designation of critical 

habitat for the southwestern willow 

flycatcher will significantly or uniquely 

affect small government entities. As 

such, a Small Government Agency Plan 

is not required. 

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 

60982 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

State resource agencies in all affected 

states. 

The designation of critical habitat in 

areas currently occupied by 

southwestern willow flycatcher imposes 

few restrictions beyond those currently 

in place and, therefore, has little 

incremental impact on State and local 

governments and their activities. The 

designation of critical habitat may have 

some benefit to the State and local 

resource agencies in that the areas 

essential to the conservation of this 

species are more clearly defined, and 

the primary constituent elements of the 

habitat necessary to the conservation of 

this species are specifically identified. 

While this definition and identification 

does not alter where and what federally 

sponsored activities may occur, it may 

assist local governments in long-range 

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

occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Department of the Interior’s 

Office of the Solicitor has determined 

that this rule does not unduly burden 

the judicial system and meets the 

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

of the Order. We are designating critical 

habitat in accordance with the 

provisions of the Endangered Species 

Act. The rule uses standard property 

descriptions and identifies the primary 

constituent elements within the 

proposed areas to assist the public in 

understanding the habitat needs of the 

southwestern willow flycatcher. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating critical 

habitat for the southwestern willow 

flycatcher in a takings implications 

assessment. The takings implications 

assessment concludes that this 

designation of critical habitat for the 

southwestern willow flycatcher does not 

pose significant takings implications. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain new or 

revised information collection for which 

OMB approval is required under the 

Paperwork Reduction Act. This rule will 

not impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. 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 

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. We have conducted 

a NEPA evaluation and notified the 

public of the draft document’s 

availability on April 28, 2005 (70 FR 

21988). The final document can be 

retrieved off the Internet at http://www/ 

fws.gov/arizonaes/. 

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 have 

coordinated with federally-recognized 

Tribes on a Government-to-Government 

basis. We have excluded specific Tribal 

lands from critical habitat pursuant to 

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

Relationship to Mexico 

We are not aware of any existing 

national regulatory mechanism in 

Mexico that would protect the 

southwestern willow flycatcher or its 

habitat. Although new legislation for 

wildlife is pending in Mexico, and 

Mexico has laws that could provide 

protection for rare species, there are 

enforcement challenges. Even if specific 

protections were available and 

enforceable in Mexico, the portion of 

the southwestern willow flycatcher’s 

range in Mexico alone, in isolation, 

would not be adequate to ensure the 

long-term conservation of the species. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Arizona Ecological Services Fish and 

Wildlife Office (see ADDRESSES section), 

or retrieve this information from the 

Internet at http://www.fws.gov/ 

arizonaes. 

Author 

The primary author of this notice is 

the U.S. Fish and Wildlife Service (see 

ADDRESSES section). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we 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. In § 17.95(b), revise the critical 

habitat for ‘‘Southwestern Willow 

Flycatcher (Empidonax traillii 

extimus)’’ to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(b) Birds. 

* * * * * 

Southwestern Willow Flycatcher 

(Empidonax traillii extimus) 

(1) Critical habitat units are depicted 

for Apache, Cochise, Gila, Graham, 

Greenlee, Maricopa, Mohave, Pinal, 

Pima, and Yavapai counties in Arizona, 

Kern, Santa Barbara, San Bernardino, 

and San Diego counties in southern 

California, Clark County in southern 

Nevada, Grant, Hidalgo, Mora, Rio 

Arriba, Soccoro, Taos, and Valencia 

counties in New Mexico, and 

Washington County in southwestern 

Utah on the maps and as described 

below. 

(2) The primary constituent elements 

of critical habitat for southwestern 

willow flycatcher are: 

(i) Riparian habitat in a dynamic 

successional riverine environment (for 

nesting, foraging, migration, dispersal, 

and shelter) that comprises: 

(A) Trees and shrubs that include 

Gooddings willow (Salix gooddingii), 

coyote willow (Salix exigua), Geyers 

willow (Salix geyerana), arroyo willow 

(Salix lasiolepis), red willow (Salix 

laevigata), yewleaf willow (Salix 

taxifolia), pacific willow (Salix 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60983 

lasiandra), boxelder (Acer negundo), 

tamarisk (Tamarix ramosissima), 

Russian olive (Eleagnus angustifolia), 

buttonbush (Cephalanthus 

occidentalis), cottonwood (Populus 

fremontii), 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), false 

indigo (Amorpha californica), Pacific 

poison ivy (Toxicodendron 

diversilobum), grape (Vitus arizonica), 

Virginia creeper (Parthenocissus 

quinquefolia), Siberian elm (Ulmus 

pumila), and walnut (Juglans hindsii); 

(B) Dense riparian vegetation with 

thickets of trees and shrubs ranging in 

height from 2 to 30 meters (m) (6 to 98 

feet (ft). Lower-stature thickets (2 to 4 m 

or 6 to 13 ft tall) are found at higher 

elevation riparian forests, and tallstature thickets are found at middle- and 

lower-elevation riparian forests; 

(C) 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; 

(D) 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); or 

(E) 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 

(ii) A variety of insect prey 

populations found within or adjacent to 

riparian floodplains or moist 

environments, including: flying ants, 

wasps, and bees (Hymenoptera); 

dragonflies (Odonata); flies (Diptera); 

true bugs (Hemiptera); beetles 

(Coleoptera); butterflies/moths and 

caterpillars (Lepidoptera); and 

spittlebugs (Homoptera). 

(3) Maps and legal descriptions for 

southwestern willow flycatcher critical 

habitat follow: 

(4) Bill Williams Management Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Bill Williams ....................................... Big Sandy River ............................... 34.705270 ¥113.598290 34.479650 ¥113.618700 

BILLING CODE 4310–55–P 

60984 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

(ii) Bill Williams Management Unit 

Map follows: 


ER19OC05.000</GPH>
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60985 

(5) Kern Management Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Kern ................................................... South Fork Kern River ..................... 35.717690 ¥118.180890 35.668890 ¥118.339040 

60986 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

(ii) Kern Management Unit Map 

follows: 


ER19OC05.001</GPH>
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60987 

(6) Little Colorado Management Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Little Colorado ................................... Little Colorado River ........................ 34.086800 ¥109.397000 34.003660 ¥109.456870 

Little Colorado River East Fork ........ 34.003660 ¥109.456870 33.931370 ¥109.487290 

Little Colorado River West Fork ....... 34.003660 ¥109.456870 33.958300 ¥109.516210 

60988 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

(ii) Little Colorado Management Unit 

Map follows: 


ER19OC05.002</GPH>
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60989 

(7) Middle Gila/San Pedro 

Management Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Middle Gila/San Pedro ...................... Gila River ......................................... 33.082830 ¥110.709340 32.981320 ¥110.778790 

San Pedro River ............................... 33.099950 ¥111.246310 32.252490 ¥110.335190 

60990 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

(ii) Middle Gila/San Pedro 

Management Unit Map follows: 


ER19OC05.003</GPH>
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60991 

(8) Middle Rio Grande Management 

Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Middle Rio Grande ........ Rio Grande—South segment—1 ......................... 34.870940 ¥106.720440 34.294030 ¥106.843240 

Rio Grande—South segment—2 ......................... 34.241980 ¥106.898780 33.869720 ¥106.845540 

Rio Grande—South segment—3 ......................... 33.730610 ¥106.918770 33.605530 ¥107.032890 

60992 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

(ii) Middle Rio Grande Management 

Unit Map follows: 


ER19OC05.004</GPH>
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60993 

(9) Mojave Management Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Mojave ........................... Deep Creek (incl. Mojave Fks Res) .................... 34.287310 ¥117.126850 34.340410 ¥117.245700 

Holcomb Creek .................................................... 34.304920 ¥116.964650 34.287310 ¥117.126850 

Mojave River ........................................................ 34.470190 ¥117.254670 34.583870 ¥117.337400 

60994 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

(ii) Mojave Management Unit Map 

follows: 


ER19OC05.005</GPH>
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60995 

(10) Roosevelt Management Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Roosevelt ....................... Salt River ............................................................. 33.670900 ¥110.800840 33.626350 ¥110.964550 

Tonto Creek ......................................................... 34.023900 ¥111.282800 33.785650 ¥111.256270 

60996 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

(ii) Roosevelt Management Unit Map 

follows: 


ER19OC05.006</GPH>
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60997 

(11) Salton Management Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Salton ............................. San Felipe Creek ................................................. 33.145510 ¥116.544860 33.184870 ¥116.623790 

(ii) San Diego Management Unit. 

Management unit River Start lat Start lon End lat End lon 

San Diego ...................... Agua Hedionda Creek ......................................... 33.156960 ¥117.224330 33.148330 ¥117.253480 

Deluz Creek ......................................................... 33.428730 ¥117.319360 33.416570 ¥117.321050 

Pilgrim Creek ....................................................... 33.271930 ¥117.305790 33.241240 ¥117.335920 

San Dieguito River .............................................. 33.120070 ¥116.853380 33.090540 ¥116.892610 

San Luis Ray River—West segment ................... 33.304240 ¥116.989540 33.202520 ¥117.389560 

San Luis Rey River—East segment—1 .............. 33.273480 ¥116.962270 33.295780 ¥116.978050 

San Luis Rey River—East segment—2 .............. 33.262670 ¥116.927970 33.260640 ¥116.944880 

San Luis Rey River—East segment—3 .............. 33.256180 ¥116.898390 33.256110 ¥116.907120 

San Luis Rey River—East segment—4 .............. 33.272450 ¥116.881990 33.271960 ¥116.878110 

San Luis Rey River—East segment—5 .............. 33.240720 ¥116.764750 33.270630 ¥116.828580 

San Margarita River ............................................ 33.432130 ¥117.197380 33.402580 ¥117.255860 

Temecula Creek .................................................. 33.397690 ¥116.809070 33.426680 ¥116.847560 

Temescal Creek .................................................. 33.177900 ¥116.848790 33.120070 ¥116.853380 

60998 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

(iii) Salton and San Diego 

Management Unit Maps follow: 


ER19OC05.007</GPH>
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 60999 

(12) Santa Ana Management Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Santa Ana ...................... Bear Creek .......................................................... 34.242210 ¥116.977290 34.160970 ¥117.015100 

Mill Creek ............................................................. 34.076650 ¥116.844390 34.089290 ¥117.039560 

Oak Glen Creek ................................................... 34.048340 ¥116.939470 34.052820 ¥116.986090 

Santa Ana River—East segment ........................ 34.151300 ¥116.735070 34.119560 ¥117.090380 

Santa Ana River—West segment ....................... 34.081720 ¥117.259830 34.019510 ¥117.368930 

Waterman Canyon ............................................... 34.186350 ¥117.272120 34.216970 ¥117.290940 


ER19OC05.008</GPH>
61000 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

(ii) Santa Ana Management Unit Map 

follows: 

(13) Santa Ynez Management Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Santa Ynez ....................................... Santa Ynez River ............................. 34.597290 ¥120.174410 34.659670 ¥120.439490 


ER19OC05.009</GPH>
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 61001 

(ii) Santa Ynez Management Unit Map 

follows: 


ER19OC05.010</GPH>
61002 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

(14) Upper Gila Management Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Upper Gila ..................... Gila River—East segment—1 ............................. 33.076740 ¥108.491160 33.004370 ¥108.560150 

Gila River—East segment—2 ............................. 32.995070 ¥108.566320 32.987960 ¥108.570190 

Gila River—East segment—3 ............................. 32.984180 ¥108.571800 32.982890 ¥108.573220 

Gila River—East segment—4 ............................. 32.980550 ¥108.575780 32.977840 ¥108.577660 

Gila River—East segment—5 ............................. 32.958940 ¥108.597440 32.958010 ¥108.599150 

Gila River—East segment—6 ............................. 32.955270 ¥108.604210 32.795670 ¥108.597480 

Gila River—Middle East segment ....................... 32.727070 ¥108.675580 32.723890 ¥109.101250 

Gila River—Middle West segment ...................... 32.882390 ¥109.506890 33.094110 ¥110.056150 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 61003 

(ii) Upper Gila Management Unit 

Maps follow: 


ER19OC05.011</GPH>
61004 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 


ER19OC05.012</GPH>
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 61005 

(15) Upper Rio Grande Management 

Unit. 

(i) 

Management unit Rivers Start lat Start lon End lat End lon 

Upper Rio Grande ......... Coyote Creek ....................................................... 36.193960 ¥105.230880 36.122910 ¥105.217570 

Rio Grande—North segment ............................... 36.336150 ¥105.733810 36.090460 ¥106.066250 

Rio Grande del Rancho ....................................... 36.338610 ¥105.601060 36.254780 ¥105.579670 

61006 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

(ii) Upper Rio Grande Map 

Management Unit Map follows: 


ER19OC05.013</GPH>
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 61007 

(16) Verde Management Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Verde ............................. Verde River–North segment—1 .......................... 34.750760 ¥112.017580 34.628670 ¥111.899680 

Verde River–North segment—2 .......................... 34.614280 ¥111.898960 34.465930 ¥111.781330 

Verde River–South segment—1 .......................... 34.282320 ¥111.685650 34.072320 ¥111.716420 

Verde River–South segment—2 .......................... 33.984470 ¥111.708580 33.944900 ¥111.682380 

61008 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 

(ii) Verde Management Unit Map 

follows: 


ER19OC05.014</GPH>
Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Rules and Regulations 61009 

(17) Virgin River/Pahranagat 

Management Unit. 

(i) 

Management unit River Start lat Start lon End lat End lon 

Virgin ................................................. Virgin River ....................................... 37.132920 ¥113.422990 36.666210 ¥114.310410 

(ii) Virgin River/Pahranagat 

Management Unit Map follows: 

Dated: September 30, 2005. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 05–20144 Filed 10–18–05; 8:45 am] 

BILLING CODE 4310–55–C 


ER19OC05.015</GPH>