[Federal Register Volume 64, Number 132 (Monday, July 12, 1999)]
[Rules and Regulations]
[Pages 37419-37440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17404]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF36


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Cactus Ferruginous Pygmy-owl (Glaucidium 
brasilianum cactorum)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat pursuant to the Endangered Species Act of 1973, as 
amended (Act), for the cactus ferruginous pygmy-owl (Glaucidium 
brasilianum cactorum). A total of approximately 296,240 hectares 
(731,712 acres) of riverine riparian and upland habitat are designated. 
Critical habitat is located in Pima, Cochise, Pinal, and Maricopa 
counties, Arizona. Section 7 of the Act prohibits destruction or 
adverse modification of critical habitat by any activity funded, 
authorized, or carried out by any Federal agency. As required by 
section 4 of the Act, the Service considered economic and other 
relevant impacts

[[Page 37420]]

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

EFFECTIVE DATE: August 11, 1999.

ADDRESSES: The complete administrative record for this rule is on file 
at the U.S. Fish and Wildlife Service, Arizona Ecological Services 
Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, Arizona 
85021-4951. The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Tom Gatz, Endangered Species 
Coordinator, at the above address (telephone 602/640-2720 ext. 240; 
facsimile 602/640-2730).

SUPPLEMENTARY INFORMATION:

Background

    The cactus ferruginous pygmy-owl (referred to as ``pygmy-owl'' in 
this final rule) is in the Order Strigiformes and the Family Strigidae. 
It is a small bird, approximately 17 centimeters (cm) (6\3/4\ inches 
(in)) long. Males average 62 grams (g) (2.2 ounces (oz)), and females 
average 75 g (2.6 oz). The pygmy-owl is reddish brown overall, with a 
cream-colored belly streaked with reddish brown. Some individuals are 
grayish brown, rather than reddish brown. The crown is lightly 
streaked, and paired black-and-white spots on the nape suggest eyes. 
This species lacks ear tufts, and the eyes are yellow. The tail is 
relatively long for an owl and is colored reddish brown with darker 
brown bars. The pygmy-owl is diurnal (active during daylight), and its 
call, heard primarily near dawn and dusk, is a monotonous series of 
short notes.
    The cactus ferruginous pygmy-owl is one of four subspecies of the 
ferruginous pygmy-owl. It occurs from lowland central Arizona south 
through western Mexico to the States of Colima and Michoacan, and from 
southern Texas south through the Mexican States of Tamaulipas and Nuevo 
Leon. Only the Arizona population of Glaucidium brasilianum cactorum is 
listed as an endangered species.
    The pygmy-owl in Arizona occurs in a variety of scrub and woodland 
communities, including riverbottom woodlands, woody thickets 
(``bosques''), Sonoran desertscrub, and semidesert grasslands. Unifying 
habitat characteristics among these communities are fairly dense woody 
thickets or woodlands, with trees and/or cacti large enough to provide 
nesting cavities. The pygmy-owl occurs at low elevations, generally 
below 1,200 meters (m) (4,000 feet (ft)) (Swarth 1914, Karalus and 
Eckert 1974, Monson and Phillips 1981, Johnsgard 1988, Enriquez-Rocha 
et al. 1993).
    The pygmy-owl's primary habitats historically were in riparian 
cottonwood (Populus fremontii) forests, but the subspecies currently 
occurs primarily in Sonoran desertscrub associations and mesquite 
bosques consisting of palo verde (Cercidium spp.), bursage (Ambrosia 
spp.), ironwood (Olneya tesota), mesquite (Prosopis velutina, and P. 
glandulosa), acacia (Acacia spp.), and giant cacti such as saguaro 
(Carnegiea giganteus) and organ pipe (Stenocereus thurberi) (Gilman 
1909, Bent 1938, van Rossem 1945, Phillips et al. 1964, Monson and 
Phillips 1981, Johnson-Duncan et al. 1988, Millsap and Johnson 1988). 
Primary prey include various reptiles, insects, birds, and small 
mammals (Proudfoot 1996).
    Pygmy-owls are considered non-migratory throughout their range by 
most authors, and have been reported during the winter months in 
several locations, including Organ Pipe Cactus National Monument (R. 
Johnson, unpubl. data 1976, 1980, Tibbitts, pers. comm. 1997). Major 
Bendire collected pygmy-owls along Rillito Creek near Camp Lowell at 
present-day Tucson on January 24, 1872. The University of Arizona Bird 
Collection contains a female pygmy-owl collected on January 8, 1953 
(University of Arizona 1995). Similarly, records exist from Sabino 
Canyon documenting pygmy-owls on December 3, 1941, and December 25, 
1950 (U.S. Forest Service, unpubl. data). These winter records 
demonstrate that pygmy-owls are found within Arizona throughout the 
year, and do not appear to migrate southward to warmer climates during 
the winter months.

Previous Federal Action

    We included Glaucidium brasilianum cactorum in our Animal Notice of 
Review as a category 2 candidate species throughout its range on 
January 6, 1989 (54 FR 554). Category 2 candidates were defined as 
those taxa for which we had data indicating that listing was possibly 
appropriate but for which we lacked substantial information on 
vulnerability and threats to support proposed listing rules. After 
soliciting and reviewing additional information, we elevated G. b. 
cactorum to category 1 status throughout its range in our November 21, 
1991, Notice of Review (56 FR 58804). Category 1 candidates were 
defined as those taxa for which we had sufficient information on 
biological vulnerability and threats to support proposed listing rules 
but for which issuance of proposals to list were precluded by other 
higher-priority listing activities. Beginning with our combined plant 
and animal notice of review published in the Federal Register on 
February 28, 1996 (61 FR 7596), we discontinued the designation of 
multiple categories of candidates and only taxa meeting the definition 
of former category 1 candidates are now recognized as candidates for 
listing purposes.
    On May 26, 1992, a coalition of conservation organizations (Galvin 
et al. 1992) petitioned us to list the pygmy-owl as an endangered 
species under the Act. The petitioners also requested designation of 
critical habitat. In accordance with section 4(b)(3)(A) of the Act, on 
March 9, 1993, we published a finding that the petition presented 
substantial scientific or commercial information indicating that 
listing of the pygmy-owl may be warranted and commenced a status review 
of the subspecies (58 FR 13045). As a result of information collected 
and evaluated during the status review, including information collected 
during a public comment period, we published a proposed rule to list 
the pygmy-owl as endangered in Arizona and threatened in Texas on 
December 12, 1994 (59 FR 63975). We proposed designation of critical 
habitat in Arizona. After a review of all comments received in response 
to the proposed rule, we published a final rule on March 10, 1997 (62 
FR 10730), listing the pygmy-owl as endangered in Arizona. We 
determined that listing in Texas was not warranted. We also determined 
that critical habitat designation for the Arizona population was not 
prudent.
    On October 31, 1997, the Southwest Center for Biological Diversity 
filed a lawsuit in Federal District Court in Arizona against the 
Secretary of the Department of the Interior (Secretary) for failure to 
designate critical habitat for the cactus ferruginous pygmy-owl and the 
plant, Lilaeopsis schaffneriana var. recurva, (Huachuca water umbel) 
(Southwest Center for Biological Diversity v. Babbitt, CIV 97-704 TUC 
ACM). On October 7, 1998, Alfredo C. Marquez, Senior U.S. District 
Judge, issued an order stating: ``There being no evidence that 
designation of critical habitat for the pygmy-owl and water umbel is 
not prudent, the Secretary shall, without further delay, decide whether 
or not to designate critical habitat for the pygmy-owl and water umbel 
based on the best scientific and commercial information available.''
    On November 25, 1998, in response to a motion by the Plaintiffs 
requesting clarification of the October 7, 1998, order, Judge Marquez 
further ordered ``that within 30 days of the date of this Order, the 
Secretary shall issue the

[[Page 37421]]

proposed rules for designating critical habitat for the pygmy-owl and 
water umbel * * * and that within 6 months of issuing the proposed 
rules, the Secretary shall issue final decisions regarding the 
designation of critical habitat for the pygmy-owl and water umbel.''
    On December 30, 1998, we proposed 295,775 ha (730,565 ac) as 
critical habitat in Arizona for the pygmy-owl (63 FR 71820). On April 
15, 1999, we released the draft economic analysis on proposed critical 
habitat and reopened the public comment period for 30 days (64 FR 
18596).
    The processing of the December 30, 1998, proposed rule and this 
final rule does not conform with our Listing Priority Guidance for 
Fiscal Year 1998 and 1999 published on May 8, 1998 (63 FR 25502). The 
guidance clarifies the order in which we will process rulemakings 
giving highest priority (Tier 1) to processing emergency rules to add 
species to the Lists of Endangered and Threatened Wildlife and Plants; 
second priority (Tier 2) to processing final determinations on 
proposals to add species to the lists, processing new listing 
proposals, processing administrative findings on petitions (to add 
species to the lists, delist species, or reclassify listed species), 
and processing a limited number of proposed and final rules to delist 
or reclassify species; and third priority (Tier 3) to processing 
proposed and final rules designating critical habitat. Our Southwest 
Region is currently working on Tier 2 actions; however, we are 
undertaking this Tier 3 action in order to comply with the above-
mentioned court order.

Habitat Characteristics

    According to early surveys referenced in the literature, the pygmy-
owl, prior to the mid-1900s, was ``not uncommon,'' ``of common 
occurrence,'' and a ``fairly numerous'' resident of lowland central and 
southern Arizona in cottonwood forests, mesquite-cottonwood woodlands, 
and mesquite bosques along the Gila, Salt, Verde, San Pedro, and Santa 
Cruz rivers and various tributaries (Breninger 1898 in Bent 1938, 
Gilman 1909, Swarth 1914). Bendire (1888) noted that he had taken 
``several'' along Rillito Creek near Fort Lowell, in the vicinity of 
present-day Tucson, Arizona. Records indicate that pygmy-owls were 
initially more common in xeroriparian habitats (very dense thickets 
bordering dry desert washes) than in more open, desert uplands (Monson 
and Phillips 1981, Johnson and Haight 1985, Johnson-Duncan et al. 1988, 
Millsap and Johnson 1988, Davis and Russell 1990). The pygmy-owl was 
also noted to occur at isolated desert oases supporting small pockets 
of riparian and xeroriparian vegetation (Howell 1916, Phillips et al. 
1964).
    The historical use of Sonoran desertscrub habitats by pygmy-owls is 
not as clear. A disproportionately low number of historical records 
from desertscrub habitats may be due to the focus of early collection 
efforts along rivers where humans tended to concentrate, while the 
upland areas received less survey. Historical records of pygmy-owls do 
exist for Sonoran desertscrub in areas such as the Santa Catalina 
foothills and in ``groves of giant cactus'' near New River, north of 
present-day Phoenix. Kimball (1921) reported one pygmy-owl in a 
mesquite tree in the foothills of the Santa Catalina Mountains. Fisher 
(1893) took 2 pygmy-owl specimens near New River, and observed 
``several others'' in mesquite and large cacti.
    The northernmost historical record for the pygmy-owl is from New 
River, Arizona, approximately 56 kilometers (35 miles) north of 
Phoenix, where Fisher (1893) reported the pygmy-owl to be ``quite 
common'' in thickets of intermixed mesquite and saguaro cactus. Four 
eggs were collected in Phoenix, Maricopa County by G.F. Breninger on 
May 18, 1898, and R.D. Lusk collected five eggs at Cave Creek on April 
12, 1895. Pygmy-owls were also detected in central Arizona at the Blue 
Point Cottonwoods area, at the confluence of the Salt and Verde rivers, 
in 1897, 1949, 1951, 1964, and 1971 (AGFD unpubl. data, Phillips et al. 
1964, Millsap and Johnson 1988). Additionally, pygmy-owls were detected 
at Dudleyville on the San Pedro River as recently as 1985 and 1986 
(AGFD unpubl. data, Hunter 1988).
    The easternmost record for the pygmy-owl is from 1985 at the 
confluence of Bonita Creek and the Gila River (Hunter 1988). Other 
records from this eastern portion of the pygmy-owl's range include a 
1876 record from Camp Goodwin (current day Geronimo) on the Gila River 
(Aiken 1937), and a 1978 record from Gillard Hot Springs, also on the 
Gila River (Hunter 1988). Pygmy-owls have been found as far west as the 
Cabeza Prieta Tanks in 1955 (Monson 1998).
    Over the past several decades, pygmy-owls have been primarily found 
in Sonoran desertscrub communities in southern and southwestern Arizona 
consisting of palo verde, ironwood, mesquite, acacia, bursage, and 
columnar cacti (Phillips et al. 1964, Davis and Russell 1984 and 1990, 
Monson and Phillips 1981, Johnson and Haight 1985, Johnsgard 1988). 
Recently pygmy-owls have also been found in wooded drainages within 
semidesert grasslands in southern Arizona (unpubl. data). These sites 
are closely associated with xeroriparian habitats.
    Historically, pygmy-owls were associated with riparian woodlands in 
central and southern Arizona. Plants present in these riparian 
communities include cottonwood, willow (Salix spp.), ash (Fraxinus 
velutina), and hackberry (Celtis spp.). These trees are suitable for 
cavity nesting, while the density of mid- and lower-story vegetation 
likely provides necessary protection from predators and an abundance of 
prey. Mesquite bosque communities are dominated by mesquite trees, and 
are described as mesquite forests due to the density and large size of 
the trees. This habitat type provides for all of the necessary habitat 
components of the pygmy-owl.
    The Arizona upland subdivision of the Sonoran Desert provides an 
over-story of mature saguaros which are suitable for cavity nesting, as 
well as large mesquites and other trees which may be used for nesting, 
as well as perch and cover sites. Saguaro cavities are also used for 
roosting, perching, and caching food (Scott Richardson, Arizona Game 
and Fish Department, pers. comm. 1998). The mid- and lower-stories are 
comprised of a variety of mesquite, palo verde, ironwood, acacia, 
graythorn (Ziayphus obtusifola), bursage, cholla (Opuntia spp.), 
prickly pear (Opuntia spp.), and annual and perennial grass species. As 
in riparian habitat, the larger trees provide perches for foraging and 
protection from predators. Adequate vegetation in mid- and lower-
stories appears to be important, and likely provides protection from 
predators and a higher density of prey items including lizards, small 
birds and mammals, and insects.
    In central and southern Arizona, the pygmy-owl's primary habitats 
are riparian deciduous forests and woodlands, mesquite bosques, Sonoran 
desertscrub, and semidesert and Sonoran savanna grasslands with 
drainages lined with mesquite; although most recent observations have 
occurred primarily in Sonoran desertscrub associations of palo verde, 
bursage, ironwood, mesquite, acacia, and giant cacti such as saguaro 
and organ pipe (Gilman 1909, Bent 1938, van Rossem 1945, Phillips et 
al. 1964, Monson and Phillips 1981, Johnson-Duncan et al. 1988, Millsap 
and Johnson 1988, Aaron Flesch pers. comm. 1999). Farther south in 
northwestern Mexico, pygmy-owls occur in Sonoran desertscrub, Sinaloan 
thornscrub, and Sinaloan deciduous forest as well as riverbottom 
woodlands,

[[Page 37422]]

cactus forests, and thornforest (Enriquez-Rocha et al. 1993).
    Pygmy-owls at Organ Pipe Cactus National Monument have been 
detected primarily in relatively dense, lush Arizona uplands 
desertscrub associations on bajadas. Visually dominant plants at the 
pygmy-owl sites include saguaros, organ pipe cactus, ironwood, 
triangle-leaf bursage, foothill paloverde (C. Microphyllum), mesquite, 
whitethorn and catclaw acacia (Acacia constricta and A. greggii), 
numerous cholla, prickly pear cacti, ocotillo (Fouquieria splendens), 
various Lycium spp., and creosotebush (Larrea tridentata) (Smith 1996). 
In addition to the dense bajada desertscrub habitat described above, 
pygmy-owls have been documented in several large xeroriparian habitats 
in lower bajada or valley floor areas that have dense saguaro stands; 
however, some sites have much less dense adjacent upland areas 
dominated chiefly by creosotebush. Xeroriparian habitat at these sites 
consist of mesquites, foothill and blue paloverde (Cercidium 
microphyllum and C. flordum), desert willow (chilopsis lineraris), 
catclaw acacia, ironwood, and soapberry (Sapindus saponaria) (Smith 
1996).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management consideration 
or protection and; (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon 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 species or a threatened species to the 
point at which listing under the Act is no longer necessary.
    Section 4(b)(2) of the Act requires that we base critical habitat 
proposals upon the best scientific and commercial data available, after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude areas from critical habitat designation when the benefits of 
exclusion outweigh the benefits of including the areas within critical 
habitat, provided the exclusion will not result in the extinction of 
the species (section 4(b)(2) of the Act).
    Designation of critical habitat can help focus conservation 
activities for a listed species by identifying areas that contain the 
physical and biological features that are essential for the 
conservation of that species. Designation of critical habitat alerts 
the public as well as land-managing agencies to the importance of these 
areas.
    Critical habitat also identifies areas that may require special 
management considerations or protection, and may provide protection to 
areas where significant threats to the species have been identified. 
Critical habitat receives protection from the prohibition against 
destruction or adverse modification through required consultation under 
section 7 of the Act with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the adverse modification 
or destruction of proposed critical habitat. Aside from the protection 
that may be provided under section 7, the Act does not provide other 
forms of protection to lands designated as critical habitat.
    Section 7(a)(2) of the Act requires Federal agencies to consult 
with us to ensure that any action authorized, funded, or carried out is 
not likely to jeopardize the continued existence of a threatened or 
endangered species, or result in the destruction or adverse 
modification of critical habitat. ``Jeopardize the continued 
existence'' (of a species) is defined as an appreciable reduction in 
the likelihood of survival and recovery of a listed species. 
``Destruction or adverse modification'' (of critical habitat) is 
defined as a direct or indirect alteration that appreciably diminishes 
the value of critical habitat for the survival and recovery of the 
listed species for which critical habitat was designated. Thus, the 
definitions of ``jeopardy'' to the species and ``adverse modification'' 
of critical habitat are nearly identical (50 CFR Sec. 402.02).
    Designating critical habitat does not, in itself, lead to recovery 
of a listed species. Designation does not create a management plan, 
establish numerical population goals, prescribe specific management 
actions (inside or outside of critical habitat), or directly affect 
areas not designated as critical habitat. Specific management 
recommendations for critical habitat are most appropriately addressed 
in recovery plans and management plans, and through section 7 
consultations.
    Critical habitat identifies specific areas that are essential to 
the conservation of a listed species and that may require special 
management considerations or protection. Areas that do not currently 
contain the habitat components necessary for the primary biological 
needs of a species but are likely to develop them in the future may be 
essential to the conservation of the species and may be designated as 
critical habitat.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we consider those physical and biological features that are 
essential to the conservation of the species and that may require 
special management considerations or protection. These include, but are 
not limited to, the following:
    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, or rearing of offspring, 
germination, or seed dispersal; and
    Habitats that are protected from disturbance or are representative 
of the historic geographical and ecological distributions of a species.
    The primary constituent elements for the pygmy-owl are those 
habitat components that are essential for the primary biological needs 
of foraging, nesting, rearing of young, roosting, sheltering, and 
dispersal, or the capacity to develop those habitat components. The 
primary constituent elements are found in areas that support or have 
the potential to support Sonoran riparian deciduous woodlands, Sonoran 
riparian scrubland, xeroriparian forests, tree-lined drainages in 
semidesert and Sonoran savanna grasslands, and the Arizona upland 
subdivision of Sonoran desertscrub (Brown 1994). Within these biotic 
communities, specific plant associations that are essential to the 
primary biological needs of the pygmy-owl include, but are not limited 
to, the following--cottonwood, willow, ash, mesquite, palo verde, 
ironwood, hackberry, saguaro cactus, and/or organ pipe cactus. 
Specifically, larger diameter trees and cacti provide not only nesting 
substrate, but also roosting, perching, foraging, and dispersal 
habitat, while smaller trees and shrubs provide for the same functions 
except nesting.
    In river floodplains, the presence of surface or subsurface water 
is important in maintaining pygmy-owl habitat. Riverine riparian 
woodlands and thickets are dependent on availability of groundwater at 
or near the surface

[[Page 37423]]

(Brown 1994). Surface or subsurface moisture may also be important in 
maintaining various prey species.

Methods

    In developing this final rule, we formed an interconnected system 
of suitable and potential habitat areas extending from the Mexican 
border through the northernmost recent pygmy-owl occurrence east of 
Phoenix. Areas designated as critical habitat meet the definition of 
critical habitat under section 3 of the Act in that they are within the 
geographical areas occupied by the species, are essential to the 
conservation of the species, and are in need of special management 
considerations or protection.
    In an effort to map areas essential to the conservation of the 
species, we used data on known pygmy-owl locations to initially 
identify important areas. We then connected these areas based on the 
topographic and vegetative features believed most likely to support 
resident pygmy-owls and/or facilitate movement of birds between known 
habitat areas. Facilitating movement of birds between habitat areas is 
important for dispersal and gene flow (Beier and Noss 1998). In 
selecting areas, we avoided private lands to the extent possible if 
State and Federal lands were present that could meet the conservation 
needs of the species. However, we are designating critical habitat in 
some largely privately owned areas, such as the area northwest of 
Tucson which supports the greatest known concentration of pygmy-owls in 
Arizona.
    In selecting areas of critical habitat, we made an effort to avoid 
developed areas such as towns, agricultural lands, and other lands 
unlikely to contribute to pygmy-owl conservation. Given the short 
period of time in which we were required to complete this final rule, 
we were unable to map critical habitat in sufficient detail to exclude 
all such areas. However, within the delineated critical habitat 
boundaries, only lands containing, or are likely to develop, those 
habitat components that are essential for the primary biological needs 
of the pygmy-owl are considered critical habitat. Existing features and 
structures within this area, such as buildings, roads, aqueducts, 
railroads, and other features, do not contain, and are not likely to 
develop, those habitat components and are not considered critical 
habitat.
    In selecting areas as critical habitat, we attempted to exclude 
areas believed to be adequately protected, or where current management 
is compatible with pygmy-owls and is likely to remain so into the 
future. We excluded National Park lands (Organ Pipe Cactus National 
Monument and Saguaro National Park) and National Wildlife Refuges 
(Cabeza Prieta and Buenos Aires National Wildlife refuges). We also 
excluded non-Federal lands covered by a legally operative incidental 
take permit for pygmy-owls issued under section 10(a)(1)(B) of the Act. 
However, we did not exclude areas currently managed in a manner 
compatible with pygmy-owls where such management may not be assured in 
the future (e.g., county and State parks).
    In addition, lands of the Tohono O'odham Indian Nation are not 
included in this final rule. We are aware that pygmy-owls and pygmy-owl 
habitat likely exist on the Nation, and we believe these lands are 
important to the species' continued existence in Arizona. However, the 
short amount of time given by the court to designate critical habitat 
precluded us from adequately coordinating with the Nation to obtain 
pygmy-owl location and habitat information. In addition, we were unable 
to assess whether current or future Tribal management is likely to 
maintain pygmy-owls into the future, although the probable existence of 
both pygmy-owls and pygmy-owl habitat led us to believe that current 
management may be compatible with the species. As explained in the 
``Summary of Changes from the Proposed Rule'' section of this final 
rule, Tribal grazing allotments have also been excluded.
    We did not designate all pygmy-owl historical or potential habitat 
as critical habitat. We only designated those areas that we believe are 
essential for the conservation of the pygmy-owl and in need of special 
management or protection.
    In summary, the critical habitat areas described below, and 
protected areas either known or suspected to contain some of the 
primary constituent elements but not designated as critical habitat 
(e.g., National Park land, National Wildlife Refuge lands, etc.), 
constitute our best assessment of areas needed for the species' 
conservation. Also, we have appointed a Cactus Ferruginous Pygmy-owl 
Recovery Team that will develop a recovery plan for the species. The 
experts on this team will conduct a far more thorough analysis than we 
were able to conduct in the short amount of time allowed by the Court 
Order. Upon the team's completion of a recovery plan, we will evaluate 
the plan's recommendations and reexamine areas designated as critical 
habitat.

Critical Habitat Designation

    In determining areas that are essential for the survival and 
recovery of the species, we used the best scientific information 
obtainable in the time allowed by the court. This information included 
habitat suitability and site-specific species information. To date, 
limited survey effort or research has been done to identify and define 
specific habitat needs of pygmy-owls in Arizona or to completely 
quantify their distribution. Only preliminary habitat assessment work 
has begun over small portions of the State, primarily on Bureau of Land 
Management (BLM) lands.
    We emphasized areas containing most of the verified pygmy-owl 
occurrences, especially recently identified locations. In order to 
maintain genetic and demographic interchange that will help maintain 
the viability of a regional metapopulation, we included corridor areas 
that allow movement between areas supporting pygmy-owls. These 
corridors or connecting areas, which have not been well surveyed 
connect recent sites and areas where suitable habitat remain. These 
corridors or connecting areas, while supporting some habitat suitable 
for nesting, were primarily included to facilitate dispersal and may 
contain more foraging, perching, and roosting habitat than actual 
breeding habitat. While habitat of similar quality occurs outside of 
these corridors, we anticipate that the use and importance of these 
corridors will increase over time if and when habitat outside of the 
corridors becomes unsuitable in the future.
    Table 1 shows the approximate acreage of critical habitat 
designation by county and land ownership. Critical habitat for the 
pygmy-owl includes river floodplains, Sonoran desertscrub, and 
semidesert grassland communities in Pima, Pinal, Maricopa, and Cochise 
counties, Arizona. To provide additional information, we have grouped 
areas designated into critical habitat units (see maps). A brief 
description of each unit and our reasons for designating those areas as 
critical habitat are presented below.

[[Page 37424]]



                   Table 1.--Approximate Critical Habitat Acreage by County and Land Ownership
[Note: acreage estimates are derived from Arizona Land Resource Information System data based on the cited legal
                                                  descriptions]
----------------------------------------------------------------------------------------------------------------
                                                              County
            Ownership            ----------------------------------------------------------------      Total
                                       Pima           Cochise          Pinal         Maricopa
----------------------------------------------------------------------------------------------------------------
FS..............................  ..............  ..............           5,065          33,323          38,388
BLM.............................          21,913  ..............          69,579  ..............          91,492
STATE...........................         158,974           2,371         273,541  ..............         434,886
PRIVATE.........................          61,830           2,461          71,634              68         135,993
OTHER...........................          18,166  ..............          12,787  ..............          30,953
                                 -------------------------------------------------------------------------------
    TOTAL.......................         260,883           4,832         432,606          33,391         731,712
----------------------------------------------------------------------------------------------------------------

Unit 1

    This unit lies between Buenos Aires National Wildlife Refuge and 
the Tohono O'odham Indian Nation, consisting of primarily State Trust 
lands, with some dispersed private ownership. This area contains 
semidesert and Sonoran savanna grasslands with a series of xeroriparian 
washes extending from the Baboquivari Mountains to Altar and Brawley 
washes. Uplands primarily consist of grasslands with dispersed mesquite 
trees, and a very few isolated saguaros in some areas, mostly occurring 
at the extreme north end of the unit. Dominant tree species in riparian 
areas include mesquite, ash, and hackberry.
    This unit is located in the Altar Valley, which recently has had 
several pygmy-owls documented. Not until 1998 had systematic surveys in 
this unit and adjacent areas been initiated; as a result, at least nine 
new pygmy-owl sites have been found (Harris Environmental Group, Inc. 
1998; AGFD unpubl. data; Aaron Flesch, pygmy-owl surveyor, pers. comm. 
1999). These new sites are located in riparian and xeroriparian 
habitats and wooded drainages within semidesert grassland and Sonoran 
savanna grassland communities. Since the turn of the century, many 
areas that were historical semidesert and Sonoran savanna grasslands in 
the Altar Valley have developed into habitats similar to Sonoran 
desertscrub (Brown 1994). It is unclear at this time what role this 
transition has played in the distribution of pygmy-owls in the region.
    Habitat in Unit 1 is suitable for nesting and dispersal habitat for 
pygmy-owls; however, nesting opportunities are generally greater in the 
washes because of a higher incidence of large diameter trees that may 
provide cavities for nesting. This unit is important for conservation 
of the species because it contains several pygmy-owl sites and it is 
close to other recent or currently active sites on the nearby refuge. 
It also provides opportunities for demographic and genetic interchange 
between pygmy-owls in Mexico and the United States as well as expansion 
of populations for recovery. Critical habitat in this area, together 
with protected lands on the refuges, National Monument, and habitat on 
the Nation, constitutes a large block of pygmy-owl habitat.

Unit 2

    This unit connects habitat on the Tohono O'odham Indian Nation to 
habitat in Saguaro National Park West and Tucson Mountain County Park. 
Ownership in this area is primarily BLM, State Trust, Bureau of 
Reclamation, Pima County, and some private lands. The area consists of 
Sonoran desertscrub, mesquite bosques interspersed by washes, and some 
retired agricultural lands. This east-west habitat corridor, together 
with the ``Garcia Strip'' of the Nation, includes suitable habitat for 
occupancy, movement, and genetic interchange of pygmy-owls between the 
Nation and the western Tucson region.

Unit 3

    This narrow unit connects suitable habitat in Unit 2 and Saguaro 
National Park west to Unit 4, which has the highest known concentration 
of pygmy-owls in Arizona. The land ownership in this area is mostly 
private. The area consists of Sonoran desertscrub, mesquite bosques 
interspersed by washes, and some retired agricultural lands. This area 
includes a recent pygmy-owl site west of Interstate 10 and provides a 
connection to habitat in the northwest Tucson region. Because of 
existing and past land management practices and development, this area 
contains the narrowest habitat linkage among other areas of critical 
habitat.
    Few options currently exist for movement of pygmy-owls in this 
portion of their known range based on our limited knowledge of their 
movement among areas at this time (Scott Richardson, pers. comm. 1998). 
The pygmy-owl's flight pattern typically consists of a series of short, 
direct flights, perching in trees or shrubs usually less than 100 m 
(328 ft) apart (Glenn Proudfoot, pers. comm, 1999 and Scott Richardson, 
pers. comm. 1999).

Unit 4

    This unit is located in the northwest portion of Tucson north of 
Interstate 10 and contains the highest known concentration of pygmy-
owls in Arizona. This unit contains mostly private and County lands. 
The area includes known locations of pygmy-owls and adjacent habitats 
and is bounded by La Cholla Boulevard to the east, Cortaro Road to the 
south, Interstate 10 to the west, and the Tortolita Mountains to the 
north. In the immediate Tucson area, and to the south of Unit 4, very 
little suitable habitat remains due to residential, commercial, and 
agricultural development. Historically, these upland and riparian areas 
may have supported pygmy-owls. The area of critical habitat contains 
stands of ironwood, acacia, and saguaro, mesquite bosques, and several 
washes, and includes the most contiguous and highest quality pygmy-owl 
habitat based on current information (Scott Richardson, pers. comm. 
1998; Wilcox et al. 1999).

Units 5a and 5b

    Unit 5 includes 2 habitat corridors that connect habitat in Unit 4 
to riparian habitats to the north on the Gila River (5a) and to the 
east on San Pedro River (5b). Land ownership is mostly BLM, State 
Trust, and private. This area also includes recent pygmy-owl 
occurrences in southern Pinal County, although only a limited number of 
surveys have been conducted to determine if pygmy-owls are present in 
much of this area. Relatively intact riparian woodland habitats still 
remain along much of these portions of the Gila and San Pedro rivers. 
These units contain historical pygmy-owl locations and/or areas thought 
to contain suitable upland

[[Page 37425]]

habitat (Dave Krueper, BLM, pers. comm. 1998).
    Limited habitat assessment has been completed within these 
corridors and few historical or current pygmy-owl occurrences have been 
documented. However, the BLM has conducted some habitat assessments on 
their lands in Unit 5a and rated the habitat suitability for pygmy-owls 
as moderate to high (Dave Krueper, pers. comm. 1998). We included these 
two corridors primarily because they constitute areas for dispersal, 
and also for nesting where nesting habitat is present. Upon field 
review of habitats present in both of these units, we believe they 
could facilitate movement through these areas, which would act as 
dispersal corridors. In addition to dispersal habitat, nesting habitat 
is also present in uplands with saguaros and in washes where large 
diameter trees are present. The majority of the nesting habitat in this 
region is in Unit 5a, although some large diameter trees are also 
located in some of the washes in Unit 5b, and may contain some 
potential nesting cavities. Where possible, we avoided the higher 
elevation areas, which likely provide lower quality habitat.
    We are only beginning to understand the importance of upland 
habitat to the pygmy-owl. Although historical observations of pygmy-
owls were almost exclusively in riparian woodlands (Breninger 1898 in 
Bent 1938), almost all of the recent records of pygmy-owls have been in 
Sonoran desertscrub, and mesquite bosque upland areas, semidesert 
grasslands, and washes. Based on the current information, we believe 
these two corridors (5a and 5b) provide a high potential for supporting 
resident and/or dispersing pygmy-owls through this area. Without these 
habitat linkages, demographic and genetic connectivity and exchange may 
not be maintained between known populations in the greater Tucson 
region and riparian habitats in the Gila and San Pedro rivers.

Unit 6

    This unit includes the riparian woodlands of the middle and lower 
San Pedro River and a portion of the Gila River. There were four pygmy-
owls documented in the mid-1980s from lower San Pedro River woodlands. 
Similar riparian woodlands and associated upland habitats with saguaro 
cactus are present along the San Pedro upstream (south) to 
approximately the town of Cascabel.
    The San Pedro River riparian corridor connects to the Gila River to 
the north. This section of the Gila River also contains riparian 
woodland habitats, which we believe are suitable for pygmy-owls (Dr. 
Roy Johnson, National Park Service (Retired) pers. comm. 1998). We are 
designating these areas as critical habitat because of the importance, 
based on the early records of naturalists during the late 1800s and 
early 1900s, of riparian woodland habitats, the presence of suitable 
habitat, and the linkage these areas provide to other historical 
locations and suitable habitat to the north.

Unit 7

    This unit links riparian habitat on the Gila River to other upland 
habitats and ultimately to the remaining woodland habitat along the 
Salt River where pygmy-owls were collected in the 1940s and 1950s and 
where this species was recorded in the early 1970s. Land ownership in 
this area is primarily BLM, State Trust, Forest Service, and some 
dispersed private. Although recent surveys have not located pygmy-owls 
in riparian areas in this unit, riparian woodland habitats remain along 
portions of the Salt River in this area (Roy Johnson pers. comm. 1998), 
and we cannot rule out pygmy-owl use of the area because pygmy-owls may 
use areas only periodically and may not be detected. In delineating 
critical habitat in this unit, we considered elevation, topographic 
features, and existing developed areas and determined that a habitat 
linkage that includes Sonoran upland desertscrub will provide 
connectivity and suitable habitats between riparian woodland habitats 
along the Gila and Salt rivers.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against certain activities involving 
listed species are discussed, in part, below.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated or proposed. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
Sec. 402. Section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of such a species or to destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into consultation with us.
    Section 7(a)(4) of the Act and regulations at 50 CFR Sec. 402.10 
require Federal agencies to confer with us on any action that is likely 
to result in destruction or adverse modification of proposed critical 
habitat. Conferencing on proposed critical habitat for the pygmy-owl 
was not requested by any Federal agency.
    Activities on Federal lands that may affect the pygmy-owl or its 
critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers under section 404 of 
the Clean Water Act, or a section 402 permit from the Environmental 
Protection Agency, will be subject to the section 7 consultation 
process. Federal actions not affecting the species, as well as actions 
on non-Federal lands that are not federally funded or permitted will 
not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to describe in any proposed 
or final regulation that designates critical habitat those activities 
involving a Federal action that may destroy or 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 the extent that the value of 
critical habitat for both the survival and recovery of the pygmy-owl is 
appreciably diminished. We note that such activities may also 
jeopardize the continued existence of the species. Such activities may 
include, but are not limited to:
    (1) Removing, thinning, or destroying vegetation, whether by 
burning or mechanical, chemical, or other means (e.g., woodcutting, 
bulldozing, overgrazing, construction, road building, mining, herbicide 
application, etc.);
    (2) Water diversion or impoundment, groundwater pumping, or other 
activity that alters water quality or quantity to an extent that 
riparian vegetation is significantly affected; and
    (3) Recreational activities that appreciably degrade vegetation.

[[Page 37426]]

    If you have questions regarding whether specific activities will 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Arizona Ecological Services Field Office (see ADDRESSES 
section). Requests for copies of the regulations on listed wildlife and 
inquiries about prohibitions and permits may be addressed to the U.S. 
Fish and Wildlife Service, Branch of Endangered Species/Permits, P.O. 
Box 1306, Albuquerque, New Mexico 87103 (telephone 505-248-6920, 
facsimile 505-248-6922).
    Designation of critical habitat could affect Federal agency 
activities including, but not limited to:
    (1) Regulation of activities affecting waters of the United States 
by the Army Corps of Engineers under section 404 of the Clean Water 
Act;
    (2) Regulation of activities affecting point source pollution 
discharges into waters of the United States by the Environmental 
Protection Agency under section 402 of the Clean Water Act;
    (3) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies; and
    (4) Regulation of grazing, mining, or recreation by the BLM or 
Forest Service.

Summary of Comments and Recommendations

    In the December 30, 1998, proposed rule, all interested parties 
were requested to submit comments or information that might bear on the 
designation of critical habitat for the pygmy-owl (63 FR 71820). The 
first comment period closed March 1, 1999. The comment period was 
reopened from April 15 to May 15, 1999, to once again solicit comments 
on the proposed rule and to accept comments on the draft economic 
analysis (72 FR 18596). Comments received from March 2 to April 14, 
1999, were entered into the administrative record during the second 
comment period.
    All appropriate State and Federal agencies, county governments, 
scientific organizations, and other interested parties were contacted 
and invited to comment. In addition, newspaper notices inviting public 
comment were published in the following newspapers in Arizona: Arizona 
Republic, Tucson Citizen, Arizona Daily Star, Sierra Vista Herald, 
Green Valley News and Sun, The Bulletin, The Tombstone Tumbleweed, and 
Nogales International. The inclusive dates of these publications were 
January 4 to 12, 1999, for the initial comment period; January 26 to 
February 4, 1999, to advertise the public hearings; and April 21 to 29, 
1999, for the second comment period.
    We held three public hearings on the proposed rule, including at 
Coolidge (February 10, 1999), Sierra Vista (February 11, 1999), and 
Tucson, Arizona (February 12, 1999). The hearings were also held to 
solicit comments on the proposed rule to designate critical habitat for 
the Huachuca water umbel, Lilaeopsis Schaffneriana var. recurva (63 FR 
71838). A notice of hearings and locations was published in the Federal 
Register on January 26, 1999 (64 FR 3923). A total of 89 people 
attended the public hearings, including 10 in Coolidge, 28 in Sierra 
Vista, and 51 in Tucson. Transcripts of these hearings are available 
for inspection (see ADDRESSES section).
    We requested four Arizona ornithologists, who are familiar with 
this species and were not on the appointed Cactus Ferruginous Pygmy-owl 
Recovery Team, to peer review the proposed critical habitat 
designation. However, only one of the peer reviewers submitted 
comments. He concluded that ``sound scientific information about 
habitat requirements and movements is the most essential matter related 
to the conservation of the CFPO (pygmy-owl).'' Further, he summarized, 
``I oppose this designation because it is not based on adequate 
scientific data, and also because it detracts from the path of 
gathering good data by wasting public resources on needless, time-
consuming actions related to bureaucratic process, not species 
conservation.''
    We received a total of 21 oral and 268 written comments during the 
2 comment periods. Of those oral comments, 4 supported critical habitat 
designation, 16 were opposed to designation, and 1 provided additional 
information but did not support or oppose the proposal. Of the written 
comments, 59 supported designation, 182 were opposed to it, and 21 
provided additional information only, or were nonsubstantive or not 
relevant to the proposed designation. In total, oral and written 
comments were received from 10 Federal agencies, 7 State agencies, 9 
local governments, and 242 private organizations, companies, or 
individuals.
    All comments received were reviewed for substantive issues and new 
data regarding critical habitat and the pygmy-owl. Comments of a 
similar nature are grouped into 9 issues relating specifically to 
critical habitat. These are addressed in the following summary.
    Issue 1: Biological Justification and Primary Constituent Elements 
1a) Comment: How could the Service determine areas essential for 
conservation of the species since little is known about their habitat 
needs? Designation of critical habitat should be delayed until it is 
determinable and better information becomes available on the species. 
Stale, inaccurate data were used in the proposal.
    Service Response: Under sections 4(a)(3)(A) and 4(b)(6)(C) of the 
Act, critical habitat must, to the maximum extent prudent and 
determinable, be designated at the time of listing. If there is 
insufficient information to perform the required impact analysis of 
designation, or the biological needs of the species are not 
sufficiently known to permit identification of an area as critical 
habitat, it may be delayed up to 1 year. On December 12, 1994, we 
published a proposed rule to list the pygmy-owl as endangered with 
critical habitat (59 FR 63975). On March 19, 1997, we published a final 
rule listing this species as endangered. In that final rule, we 
determined that designaton of critical habitat was not prudent, because 
of the potential harm to the species from publishing precise location 
maps as required for critical habitat designation (62 FR 10730). Given 
the amount of time since the pygmy-owl was listed as endangered (over 
20 months), a ``not determinable finding'' is no longer possible. 
Because of the October 7, 1998, court order, we must now designate 
critical habitat using the best information currently available.
    Although much additional biological information for this species is 
needed, some of its biological needs are known. In making this 
designation, we reviewed all pygmy-owl records within the historical 
range of this subspecies in Arizona. To the extent possible, given the 
short time available, we utilized the most current scientific 
literature; vegetation descriptions; information from outside sources 
such as species experts, agencies, and others; and field reconnaissance 
of specific areas in developing this final rule.
    1(b) Comment: The Service, in partnership with counties and 
municipalities, needs to develop science-based surveys and studies to 
determine recovery efforts needed.
    Service Response: We agree that additional surveys and ecological 
studies are needed. We are currently working with Pima County in their 
efforts to conduct comprehensive studies within the County, that will 
serve as the foundation for their Habitat Conservation Plan, which is 
currently under development. We encourage others to complete surveys 
and life history studies on their lands to assist them in managing for 
pygmy-owls. We welcome new partnerships with any entity in order to 
conserve pygmy-owls.

[[Page 37427]]

    1(c) Comments: There is no biological justification or analysis to 
designate unoccupied areas or use a ``connect the dots approach'' in 
determining areas as critical habitat. Some areas in Units 1, 2, 5b, 6, 
and 7 are not connected by habitat and should not be included.
    Service Response: Much of the area designated as critical habitat 
has never been surveyed for pygmy-owls. Therefore, it is unknown if 
owls are currently present. We designated critical habitat in areas 
that include sites we believed were essential for the conservation of 
the species and those needing special management considerations. Pygmy-
owls may be present in those areas. We also believe areas between 
recent sightings play an important role and are essential to 
conservation of the species for the following reasons--(1) it is 
unknown if owls are in fact using these areas due to the lack of past 
survey effort; (2) areas of suitable or potentially suitable habitat 
located between areas of known owl occurrence are very important to 
allow pygmy-owls to colonize new areas; (3) they provide areas where 
pygmy-owls can disperse or facilitate movement between occupied areas 
for genetic interchange; and (4) they require special management 
considerations.
    There are some areas within the critical habitat boundaries that, 
by definition of the primary constituent elements, are not critical 
habitat. We have provided additional habitat element descriptions where 
possible for each mapping unit to assist landowners and managers in 
identifying areas containing these elements or where these elements 
have the potential to develop on their lands. Refer to the description 
of each unit within this final rule.
    Much of southern Arizona contains areas that provide potentially 
suitable habitat that may support pygmy-owls. However, as directed in 
section 3(5)(A)(i and ii) of the Act, we have only designated those 
areas that we believe are essential to conservation of the species. 
Pygmy-owls may be present in some of those areas, but many areas have 
not yet been surveyed.
    (1d) Comment: How could the Service determine critical habitat when 
it doesn't know what viable populations are necessary to recover the 
species?
    Service Response: A population viability analysis for this species 
has not been undertaken, however, we are required to designate critical 
habitat to the maximum extent prudent and determinable using existing 
information. Although population viability information will be useful 
in developing a recovery strategy for the species, it is not required 
to make this determination of critical habitat. A population viability 
analysis is unavailable for many species due to the lack of demographic 
information, habitat requirements, and other information required for 
an analysis. Studies to determine viable population levels for the 
pygmy-owl could not be conducted within the time frame given by the 
court and are not required by the Act for designation of critical 
habitat.
    1(e) Comment: Critical habitat should not be designated until a 
recovery plan is completed.
    Service Response: Although having a recovery plan in place is 
extremely helpful in identifying areas as critical habitat, the Act 
does not require a plan be prepared prior to such designation. Section 
4(c) specifically requires that critical habitat be designated at the 
time a species is listed, or within 1 year if not determinable at 
listing. Once a recovery plan is finalized, we may revise the critical 
habitat described in this final rule if appropriate, to reflect the 
goals and recovery strategy of the recovery plan.
    1(f) Comments: Only riparian areas should be designated since 
Sonoran desertscrub is only marginal habitat for pygmy-owls in Arizona. 
The Service should stress riparian restoration in recovery efforts for 
the pygmy-owl.
    Service Response: At the time the pygmy-owl was listed, it was 
almost exclusively known from historical records to occur in riparian 
woodlands and mesquite bosques. Since these early records, all active 
sites have been located in Sonoran desertscrub, xeroriparian, or desert 
grassland habitats. Based on our current knowledge, both riparian and 
other habitat types appear to be important.
    1(g) Comments: The habitat assessment key should have been used to 
identify areas of critical habitat. Some areas that rated low using 
this key were designated critical habitat, such as in Units 1 and 5b. 
Why were these two units included since they are of low quality? Why 
was Unit 1 designated when there have never been owls present?
    Service Response: The BLM developed a habitat assessment key for 
its use to prioritize areas to survey that may be suitable for pygmy-
owls. Not enough information is currently known regarding range-wide 
habitat requirements to develop a key with specific criteria that would 
apply to all habitats. Habitats where pygmy-owls have been found in the 
greater Tucson area are vastly different from other areas of the State, 
such as Organ Pipe Cactus National Monument and the Altar Valley. The 
BLM methodology uses specific habitat evaluation criteria to assess 
distinct habitats found on their lands within specific regions of the 
State. The BLM believes, and we concur, that it would be inappropriate 
to use this methodology to identify areas of critical habitat and to 
evaluate other habitats throughout the State since many of these 
criteria do not apply to other regions. We are not aware of any 
completed habitat assessments using the BLM methodology within Units 1 
or 5b.
    When we originally proposed critical habitat in December, 1998, 
there was only one documented record of a pygmy-owl in Unit 1. Although 
very few surveys had been completed in this area previously, potential 
habitat was present and we believed this area was important to the 
species. Since then, intensive surveys have been initiated in this unit 
and the nearby refuge. As a result, nine pygmy-owl sites have been 
found (Harris Environmental Group 1998; Aaron Flesch, pers. comm. 1999; 
AGFD unpubl. data 1999). Therefore, we consider this unit essential for 
recovery of the species. Likewise, other areas we have designated have 
little survey data to date. Areas where pygmy-owls are not currently 
known to exist because of lack of or limited survey efforts may also 
have pygmy-owls. We encourage landowners and managers with suitable 
habitat described in this rule to conduct surveys for pygmy-owl. We 
agree that Unit 5b likely contains limited nesting habitat; however, 
the mesquite-lined washes in this unit provide, at a minimum, dispersal 
habitat for owls moving between Units 4 and 6.
    1(h) Comment: Critical habitat boundaries do not appear to reflect 
habitat; rather they follow squared-off, arbitrary lines.
    Service Response: We are required to describe critical habitat (50 
CFR Sec. 424.12(c)) with specific limits using reference points and 
lines as found on standard topographic maps of the area. Due to the 
time constraints imposed by the court, the absence of detailed 
vegetation maps, we followed roads, railroads, and section or township 
lines wherever possible to delineate the critical habitat boundaries. 
Some pygmy-owl unsuitable habitat areas may be included in these mapped 
areas. Under 50 CFR Sec. 424.12(d), when several habitat areas are 
located in proximity to one another, an inclusive area may be 
designated as critical habitat.
    (1i) Comments: Why are some areas that do not appear to have 
suitable pygmy-owl habitat or to contain any of the primary constituent 
elements included as critical habitat? Only those areas with these 
constituent elements

[[Page 37428]]

should be designated (15 USC Sec. 1532 (5)(A) and 50 CFR Sec. 424.12).
    Service Response: As previously stated in this document, due to 
time constraints, we were not able to eliminate areas within the 
critical habitat boundaries that do not contain, or do not have the 
reasonable likelihood of ever containing, the primary constituent 
elements necessary for the pygmy-owl. However, any areas that do not, 
and cannot, support these elements are, by definition, not considered 
to be critical habitat, even though they are within the identified 
boundaries.
    (1j) Comments: Areas with reduced value as pygmy-owl habitat should 
not be included. Commenters cited the following factors as to why their 
lands had little value as pygmy-owl habitat--lack of some primary 
constituent elements, ``low-quality'' habitat, nearby major roads, 
schools, or high-density housing, and lack of saguaros or ironwoods. 
Some areas may not be suitable because they are adjacent to planned 
developments such as future road-widening projects or housing 
developments.
    Service Response: We have documented the presence of pygmy-owls 
near developed lands, roads, and areas that possess some, but not all, 
of the primary constituent elements. Therefore, we are including areas 
near developed lands that contain at least some primary constituent 
elements as critical habitat because owls use these areas. We believe 
these areas also play an important role for pygmy-owls for some of 
their life history requirements such as foraging or dispersal. We can 
not exclude areas as critical habitat because of projected projects or 
proposed activities, unless the economic impact outweighs the benefit 
to the species (section 4(b)(2) of the Act). Although ironwoods are 
commonly found at sites in the northwest Tucson area (Wilcox et al. 
1999), numerous other historical and recent sites lack ironwoods. 
Therefore, we do not believe ironwoods are specifically a necessary 
component for pygmy-owls. Further research is needed to fully 
understand this species' habitat needs and life history requirements.
    (1k) Comment: You should not only designate currently occupied 
sites, but also sites with suitable or potential habitat that was 
previously occupied, and also dispersal habitat.
    Service Response: The Act (section 3(5)(C)) states that not all 
areas capable of being occupied by the species should be designated as 
critical habitat unless we determine that such designation is essential 
to the species' conservation. In determining what areas are critical 
habitat, we considered areas and constituent elements that are 
essential to the conservation of the species and that may require 
special protection or management considerations (50 CFR 
Sec. 424.12(b)). Thus, not all areas occupied or potentially occupied 
by a species are eligible for designation. Our rationale for not 
designating all occupied pygmy-owl sites as critical habitat are 
discussed in the section entitled ``Critical Habitat Designation.'' Due 
to time constraints and because of a lack of survey data to indicate 
documented pygmy-owl presence, we cannot assert that pygmy-owls are not 
present in a particular area designated as critical habitat. This 
critical habitat designation contains areas that may be important for 
pygmy-owl dispersals.
    (1l) Comments: There was no scientific basis for the constituent 
elements described in the proposed rule. The definition of constituent 
elements should be expanded to include dispersal habitat such as 
creosote bush and grasslands. The constituent elements described are 
vague (violating 50 CFR Sec. 424.12(c)) and are overly inclusive, and 
should include the required greater detail defining structure, species 
richness, and juxtaposition of riparian and xeroriparian areas with 
adjacent upland habitat types. Identified corridors are not based on 
known movement of owls, and appear to be sheer guesswork.
    Service Response: The primary constituent elements described in 
this final rule are elements for which we have evidence of use by 
pygmy-owls in Arizona. Smaller diameter trees and shrubs, though not 
suitable nesting structure, appear suitable for dispersal movements 
and/or support prey species for pygmy-owls (Proudfoot, pers. comm. 
1999). Pure stands of extensive grassland do not support primary 
constituent elements; however, grasslands with scattered mesquites or 
other trees or shrubs provide dispersal and foraging habitat and 
drainages within grasslands containing trees with cavities may also 
provide suitable nesting habitat. Information regarding movement of 
pygmy-owls gathered in Arizona and Texas was used to determine 
suitability of dispersal corridors.
    To date, pygmy-owl habitat studies have been limited to descriptive 
studies in the greater Tucson area. Habitat in this study area is 
vastly different from sites elsewhere in the State with historical and 
recent pygmy-owl sightings. In addition to this Tucson habitat study 
(Wilcox et al. 1999), we are aware of two additional habitat studies 
that are scheduled to begin in the summer of 1999, which will analyze 
habitats where other pygmy-owls are found in the State. These 
additional studies will examine habitats used by pygmy-owls in areas 
containing very different habitats compared to previous studies. Random 
sites will also be studied in the state to determine use versus 
availability. These studies will provide valuable information about the 
habitat needs of pygmy-owls and will be useful to us and others in 
meeting the conservation needs of the species.
    As noted earlier, pygmy-owls use a variety of habitats. We have 
described in the greatest detail possible in this final rule the 
constituent elements important to pygmy-owls known at this time. If new 
information later becomes available as a result of the above mentioned 
or other studies regarding the habitat needs of this species, we will 
then evaluate whether a revision of designated critical habitat is 
warranted. In addition, as new habitat information becomes available 
that can further refine habitat definitions and descriptions, it will 
be used in future section 7 consultations and recovery planning for the 
pygmy-owl.
    Issue 2: Take of Private Property/Additional Burdens on Private 
Landowners
    (2a) Comment: The designation of critical habitat would constitute 
``taking'' of private property rights; thus a takings implications 
assessment, as required by Executive Order 12630, must be conducted.
    Service Response: The designation of critical habitat has no effect 
on non-Federal actions taken on private land, even if the private land 
is within the mapped boundary of designated critical habitat. Critical 
habitat has possible effects on activities by private landowners only 
if the activity involves Federal funding, a Federal permit, or other 
Federal action. If such a Federal nexus exists, we will work with the 
landowner and the appropriate Federal agency to ensure that the 
landowner's project can be completed without jeopardizing the species 
or adversely modifying critical habitat.
    Executive Order 12630 requires that Federal actions that may affect 
the value or use of private property be accompanied by a takings 
implication assessment. As discussed in our response to Issue 9, 
(McKenney et al. 1999), the economic analysis found that designation of 
critical habitat would have no economic effect above that already 
imposed by listing. The primary effect of critical habitat designation 
on private property is to identify areas important for the conservation 
of the species. In addition, if a Federal action

[[Page 37429]]

occurs on those private lands, such as issuance of a Clean Water Act 
section 404 permit, the Federal action agency would be required to 
consult with us pursuant to section 7 of the Act if that action may 
affect the pygmy-owl or its critical habitat. In Arizona, all private 
landowners that have applied for a section 10 take permit to allow them 
incidental take of a federally listed species have been issued permits, 
and all projects that have completed the section 7 consultation process 
have gone forward.
    (2b) Comments: The designation of critical habitat would place an 
additional burden on landowners above and beyond what the listing of 
the species would require. The number of section 7 consultations will 
increase; large areas where no pygmy-owls are known to occur will now 
be subject to section 7 consultation. Many Federal agencies have been 
making a ``no effect'' call within unoccupied suitable habitat. Now, 
with critical habitat there will be ``may effect'' determinations, and 
section 7 consultation will be required if any of the constituent 
elements are present.
    Service Response: If a Federal agency funds, authorizes, or carries 
out an action that may affect either the pygmy-owl or its critical 
habitat, the Act requires that the agency consult with us under section 
7 of the Act. For a project to affect critical habitat, it must affect 
the habitat features important to the pygmy-owl, which are the primary 
constituent elements described in this final rule. Our view is and has 
been that any Federal action within the geographic area occupied by the 
species that affects these habitat features should be considered a 
situation that ``may affect'' the pygmy-owl and should undergo section 
7 consultation. This is true whether or not critical habitat is 
designated, even when the particular project site within the larger 
geographical area occupied by the species is not known to be currently 
occupied by an individual pygmy-owl. All areas designated as critical 
habitat are within the geographical area occupied by the species, so 
Federal actions affecting essential habitat features of the species 
should undergo consultation. Thus, the need to conduct section 7 
consultation should not be affected by critical habitat designation. As 
in the past, the action agency will continue to make the determination 
as to whether their project may affect a species even when the 
particular site is not known to be currently occupied by an individual 
pygmy-owl.
    Issue 3: National Environmental Policy Act.
    Comment: The designation of critical habitat constitutes a major 
Federal action significantly affecting the quality of the human 
environment. An environmental impact statement (EIS) should be 
prepared.
    Service Response: We have determined that Environmental Assessments 
(EAs) and EISs, as defined under the authority of the National 
Environmental Policy Act of 1969 (NEPA), need not be prepared in 
connection with regulations adopted pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register in October, 1983 (48 FR 49244).
    Issue 4: Lands with Habitat Conservation Permits to be Excluded 
from Critical Habitat.
    Comments: It is illegal and unscientific to withdraw critical 
habitat designation from land covered by an approved or future Habitat 
Conservation Plan (HCP) incidental take permit. Critical habitat 
protects land essential for conservation, which is a higher standard 
than a HCP permit which only assures that jeopardy would not occur. The 
HCP take permit has no public process analysis or scientific 
accountability. HCPs should maintain constituent elements. Regional 
HCPs are preferred to individual permits. Individual HCPs should not be 
approved until a regional HCP is completed in Pima County.
    Service Response: Before we issue a section 10 permit, we must 
determine that the HCP provides for the conservation of the species. As 
a part of the permit evaluation process, we must determine whether our 
action of issuing the section 10 permit is likely to jeopardize the 
continued existence of the species or result in adverse modification of 
critical habitat. Thus, when a HCP is approved through a section 10 
permit, we will have already determined that critical habitat would not 
be adversely modified. HCP permits for lands over 5 acres in size are 
required to go through the NEPA process that involves public 
participation and comment. Monitoring and adaptive management are 
important components of the HCP process to ensure that needed actions 
are taken and that actions can be modified, as needed, as new 
information is collected.
    We agree that maintaining the primary constituent elements is an 
important consideration in developing HCPs. In addition, we strongly 
support regional multiple-species HCPs such as the one currently under 
development by Pima County, and we encourage this broad-based approach 
to others within the region. Experience gained from development of 
similar plans indicates that because of their complexity, these plans 
typically take a year or more to complete. We encourage landowners and 
members of the public in the region to participate in this planning 
effort; however, we realize that it would be unrealistic for some to 
wait until the county's plan is finalized. We cannot preclude any 
applicant from pursuing an individual HCP pending the development of a 
regional plan.
    Issue 5: Section 7 Consultation and Section 9.
    (5a) Comments: How will the Service conduct section 7 consultations 
on land immediately adjacent to critical habitat; would additional 
buffers be required?
    Service Response: We address all direct, indirect, inter-related, 
and interdependent effects of projects under section 7 consultation, 
which could include effects to areas outside of the immediate project 
area (downstream effects, for example). However, if a project is 
adjacent to, but not within, critical habitat and has no direct or 
indirect effect on critical habitat, that would be acknowledged in the 
section 7 Biological Opinion, and only effects to the species would be 
addressed.
    (5b) Comment: Section 9 does not fully protect habitat absent a 
critical habitat designation because critical habitat can include 
unoccupied habitat. There is a clear distinction between the 
``jeopardy'' and ``adverse modification of critical habitat'' 
prohibitions. In its final rule listing the pygmy-owl as endangered, 
the Service states that clearing of unoccupied habitat is not a section 
9 ``take.'' The courts have consistently held that for a party to 
assert that removal or disturbance of vegetation from an area will 
result in take of an endangered species, such a party must demonstrate 
that the species is present in the area or otherwise using it for 
essential behavioral functions. Where there is no owl, there is no 
take.
    Service Response: We agree that section 9 does not protect 
unoccupied habitat, i.e., areas from which the pygmy-owl has been 
extirpated. However, as discussed in our response to comment 2(b) 
above, section 7 requires consultation on Federal actions that may 
affect a listed species or its critical habitat. An action agency may 
determine that a project may affect a species even when the particular 
site is not known to be currently occupied by an individual pygmy-owl. 
It is our view that actions affecting suitable pygmy-owl habitat within 
the known range of the pygmy-owl, whether or not that area has been 
designated as critical habitat and whether or not it is known to

[[Page 37430]]

currently support an individual, should undergo review under section 7.
    Issue 6: Designation by Specific Land Ownership.
    (6a) Comments: Designation of critical habitat is not necessary on 
non-Federal lands because vast tracts of Federal and Tribal lands are 
already protected. For instance, over 87% of Pima County is owned by 
the government; the Service should move the owls to those lands.
    Service Response: The Act defines critical habitat as those areas 
essential to the conservation of the species and that are in need of 
special management considerations or protection. We agree that Federal 
lands provide a significant amount of the habitat currently occupied by 
the pygmy-owl, and that those lands are essential to the species' 
conservation. However, much of the currently occupied habitat is on 
non-Federal land, especially in Pima County. As stated in the proposed 
rule, we tried to avoid designation on non-Federal lands except when 
those lands are, because of their location or the habitat they support, 
necessary to ensure pygmy-owl conservation. We do not believe that 
Federal and Tribal lands alone, are adequate to ensure the species' 
conservation.
    (6b) Comments: Exemption of Federal lands such as National Parks 
and National Wildlife Refuges is illegal, violating 50 CFR Sec. 424.12, 
and draft guidance exhibit 2, pp 5, 11-12, which states that lands must 
be evaluated regardless of ownership. None of those lands have an owl 
plan, and there is no basis to claim that future management will be 
consistent with critical habitat protections. The Service does not have 
the statutory authority to exclude areas because it feels their current 
management is compatible with pygmy-owls, and the benefits from 
exclusion must be greater than that of inclusion.
    Service Response: In determining what areas are critical habitat, 
we consider physical and biological features that are essential to the 
conservation of the species and that may require special management 
considerations or protection (50 CFR Sec. 424.14(b)). Organ Pipe Cactus 
National Monument, Saguaro National Park, and Buenos Aries and Cabeza 
National Wildlife refuges provide important habitat for the pygmy-owl. 
These areas were excluded from designation not simply because of 
ownership, but because we believe these areas are managed in such a way 
that provides for natural values, including protection of threatened 
and endangered species. We believe that these specific areas are 
managed and likely will continue to be managed in a manner compatible 
with pygmy-owl needs, and are therefore not in need of special 
management considerations or protection.
    (6c) Comments: Exemption of Tribal lands is illegal, and there is 
no evidence that current densities on Tribal lands are as high as 
historical levels, nor that the population is increasing. The Service 
states that, because the owl occurs on the reservation, Tribal 
management is compatible with pygmy-owls. Failure to designate critical 
habitat on Tribal lands violates the Equal Protection Clause of the 
United States Constitution and the Administrative Procedures Act.
    Service Response: Given the lack of species' location and habitat 
information on Tribal lands available at the time of drafting the 
proposed rule, we were unable to thoroughly assess either the status of 
the species on those lands, or the management practices currently 
employed by the tribes. The court's order required publication of a 
proposed rule within only 30 days and a final rule in 6 months. Given 
the extensive preparation and review requirements of publishing a 
proposed rule, our staff had but a few days to develop the critical 
habitat maps and determine what areas are both essential to the 
species' conservation and in need of special management considerations 
or protection. Further, Secretarial Order 3206 requires significant 
coordination with Tribal governments, as well as several specific 
determinations, prior to proposing Tribal land as critical habitat. The 
30 days allowed by the court precluded the analyses and coordination 
that would have been necessary before proposing critical habitat on 
Tribal lands. We therefore based our proposal on the best scientific 
and commercial information available, as required by the Act.
    (6d) Comments: To designate State trust lands because they are 
owned by the State is arbitrary, capricious, discriminatory, and 
unlawful; they should be treated as private lands. The Service 
considers State lands as public lands and therefore assumes that the 
limitations of use resulting from designation of critical habitat will 
not adversely affect the landowner. The Service did not justify the 
assumption that State lands require special management considerations.
    Service Response: We first identified areas essential to the 
conservation of the species. We looked first to Federal, then State 
lands to develop a configuration that would include most occupied 
pygmy-owl sites, connected across the species' range. Our reasoning was 
that the Act clearly puts the largest share of the burden on Federal 
agencies and Federal lands in conserving listed species. The Act also 
considers the states to be important partners in species' conservation 
efforts. Where possible, we therefore proposed Federal and State lands 
as the primary areas to concentrate pygmy-owl recovery, with private 
lands included where necessary. As stated in the economic analysis and 
this final rule, we do not believe the designation of critical habitat 
will have adverse economic effects on any landowner, including the 
State of Arizona, above and beyond the effects of listing of the 
species (McKenney et al. 1999).
    Future management practices of State trust lands are uncertain in 
areas we have determined essential to the recovery of this species and 
may in some instances not be compatible with conservation efforts; 
therefore, we believe that designation of these lands is warranted. We 
believe that designation of these and other lands as critical habitat 
does not result in additional economic or other effects to the 
landowner above that which would occur from listing the species.
    Issue 7: Legal and Procedural Comments.
    (7a) Comments: The Service did not consult, nor allow for an 
appropriate level of involvement with, the State of Arizona, counties, 
and cities in areas proposed as critical habitat.
    Service Response: In regard to the role of local governments in 
decisions to determine critical habitat, the Act requires we ``give 
actual notice of the proposed regulation (including the complete text 
of the regulation) to * * * each county or equivalent jurisdiction in 
which the species is believed to occur, and invite the comment of such 
agency, and each jurisdiction'' (section 4(b)(5)(A)(ii) of the Act). 
Due to the limited time allowed by the court and plaintiffs, we were 
not able to individually contact all of the entities that could be 
affected by this proposal; however, we notified each affected county, 
several cities, and many special interest groups of the proposed rule 
and draft economic analysis. All entities, including the State and 
local municipalities, were given ample opportunity, during two separate 
public comment periods and three public hearings, to submit their 
concerns and have them addressed in the final rule. Numerous local, 
city, county, State, and Federal agencies provided comments during two 
public comment periods and three public hearings; we reviewed and 
considered these comments in developing this final rule.
    (7b) Comments: The court order was not to designate critical 
habitat, but

[[Page 37431]]

rather to reconsider whether it was prudent to do so. The court 
referred to only 12 of the 28 items of evidence the Service provided in 
its original ``not prudent'' determination. Designation of critical 
habitat provides no additional benefits to the species and can lead to 
increased threats from bird watchers or retaliation against the species 
as happened with the Mexican wolf. The Service lacks sufficient 
original information and its original not prudent finding was correct 
until future research is done.
    Service Response: The Act requires the Secretary, ``to the extent 
prudent and determinable,'' to designate critical habitat concurrently 
with listing a species as threatened or endangered. Regulations under 
50 CFR Sec. 424.12(a)(1) state that critical habitat is not prudent 
when one or both of the following situations exist--(i) the species is 
threatened by taking or other human activity, and identification of 
critical habitat can be expected to increase the degree of such threat, 
or (ii) designation of critical habitat would not be beneficial to the 
species.
    We determined in our final rule listing the species as endangered 
(62 FR 10730) that critical habitat designation would increase the 
threat of harassment of owls by bird watchers and increase the 
potential for vandalism. The court found this determination to be 
arbitrary and capricious, and remanded the ``not prudent'' finding to 
us.
    As stated in our economic analysis (McKenney et al. 1999), we 
believe that designation of critical habitat for the pygmy-owl provides 
no significant additional impacts or benefits to the species beyond 
that which would occur, or is provided, through listing the species as 
endangered. While we believe this argument fits the second argument for 
a ``not prudent'' finding, the court order cited a previous finding in 
the 9th Circuit (Natural Resources Defense Council v. Department of 
Interior; 113 F3d 1121, 1126) that it was Congress' intent that the 
imprudence exception be a rare exception. This and other statements in 
the court order led us to believe that another ``not prudent'' finding 
based on the available information would be inconsistent with the court 
order.
    (7c) Comment: The biological benefits of critical habitat are 
outweighed by the benefits of exclusion.
    Service Response: Section 4(b)(2) of the Act and 50 CFR Sec. 424.19 
requires us to consider excluding areas from critical habitat 
designation if we determine that the benefits of exclusion outweigh the 
benefits of designating the area as critical habitat, unless that 
exclusion will lead to extinction of the species concerned. As 
discussed in this final rule, we have determined that no adverse 
economic or other effects will result from this critical habitat 
designation (McKenney et al. 1999). Therefore, no areas were found 
where the benefits of exclusion outweighed the benefits of including 
the areas as critical habitat.
    (7d) Comments: The Service must consider the entire range, 
including Mexico, in determining areas of critical habitat. The Service 
has never found that the Arizona population is a distinct population 
segment from the Mexican population.
    Service Response: Regulations at 50 CFR Sec. 424.12(h) state that 
critical habitat shall not be designated within foreign countries or in 
other areas outside of United States jurisdiction. We agree that the 
status of the species in Mexico will be an important consideration in 
recovery of the species in Arizona. However, maintenance of a healthy 
population in the U.S. also depends on areas within the pygmy-owls' 
historical U.S. range, and we have determined that those areas are 
essential to the species' conservation.
    (7e) Comment: The Service failed to comply with a number of 
required determinations, including Executive Orders 12291, 12630, 
12866, and 50 CFR Secs. 424.12(c)(d), and Sec. 424.19 as well as the 
Regulatory Flexibility Act and the Unfunded Mandates Reform Act.
    Service Response: These Executive Orders and other Acts are 
discussed in the ``Required Determinations'' section of this final 
rule. Issues pertaining to 50 CFR Sec. 424.14(c)(d) and 424.19 are 
addressed elsewhere in this final rule.
    (7f) Comment: Critical habitat will have potential impacts on water 
resource use by Arizona and local agencies. How has the Service 
coordinated with these groups to resolve water resources issues?
    Service Response: This final rule does not authorize our 
jurisdiction over water rights, and we do not anticipate impact to 
local economies or citizens as a result of this designation as we state 
elsewhere in this rule. Critical habitat designation does not, in 
itself, restrict groundwater pumping or water diversions; nor does it 
in anyway restrict or usurp water rights or violate State or Federal 
water laws. Local agencies, governments, and individuals have had the 
opportunity to provide comments during two comment periods, and three 
public hearings. We will work with these groups during the section 7 
consultation process as necessary to ensure their activities comply 
with the Act and other Federal and State laws.
    (7g) Comment: Designation of critical habitat on Arizona State 
trust lands violates the Arizona-New Mexico Enabling Act of 1910.
    Service Response: Under the provisions of the Arizona and New 
Mexico Enabling Act, in 1910, Congress granted title to certain Federal 
lands within the borders of Arizona to the State of Arizona for the 
purpose of creating a trust to provide financial support to the Arizona 
common schools, universities, and other public institutions operated by 
the State. However, the State trust created under the Enabling Act is 
not immune from the operation of otherwise applicable Federal law, 
including the Endangered Species Act. Further, we do not anticipate 
that critical habitat designation will affect the State's ability to 
utilize their trust lands in a manner that will provide financial 
support to State institutions. Even if there are situations where a 
State activity requires Federal authorization or funding, we do not 
anticipate any restrictions beyond those that may result from listing 
the pygmy-owl as endangered.
    (7h) Comments: Critical habitat should not have been proposed 
before an economic and other impacts analysis was completed, and the 
opportunity to comment on the economic analysis and the proposed rule 
was limited. Several requests were received to extend the public 
comment period.
    Service Response: We are not required to conduct an economic 
analysis at the time critical habitat is initially proposed. We 
published in the Federal Register (63 FR 71820) the availability of the 
proposed rule and invited public comment which we used to develop a 
draft economic analysis (McKenney et al. 1999). We invited public 
comments for 30 days on this draft analysis, which we believe was 
sufficient given the short-time frame ordered by the court. Because of 
the court-ordered time frame, we were not able to extend the public 
comment period.
    (7i) Comment: Maps and descriptions provided are vague and violate 
the Act and 50 CFR Sec. 424.12(c).
    Service Response: This final rule contains the required legal 
descriptions of areas designated as critical habitat. The accompanying 
maps are for illustration purposes. If additional clarification is 
necessary, contact the Arizona Ecological Service Field Office (see 
ADDRESSES section). We identified specific areas referenced by specific 
legal description, roads, railroads, and other landmarks, which are 
found on standard topographic maps.

[[Page 37432]]

    (7j) Comment: Once land is designated as critical habitat it will 
likely result in a panoply of Federal, State, and local land use laws, 
and restrictions or extra procedures.
    Service Response: We are unaware of any information that indicates 
any new State or local laws, restrictions, or procedures will result 
from critical habitat designation. Should any State or local regulation 
be promulgated as a result of this rule, this would be outside of the 
authority of the Service under the Act. The comment is correct in that 
projects funded, authorized, or carried out by Federal agencies, and 
that may affect critical habitat, must undergo consultation under 
section 7 of the Act on the effects of the action on critical habitat. 
However, as stated elsewhere in this final rule, we do not expect the 
result of those consultations to result in any restrictions that would 
not be required as a result of listing the pygmy-owl as an endangered 
species.
    (7k) Comment: Additional areas not identified in the proposed rule 
should be designated critical habitat.
    Service Response: Section 4(b)(4) of the Act requires that 
designation of critical habitat undergo the regulation promulgation 
procedures identified under 5 U.S.C. 553. That is, areas designated as 
critical habitat must first be proposed as such. Thus, we cannot make 
significant additions in the final rule to the areas included in the 
proposed rule. Designation of such areas would require new proposed and 
final rules. The Act explicitly states that not all suitable or 
occupied habitat be designated as critical habitat, rather only those 
essential for the conservation of the species (50 CFR Sec. 424.12 (e)).
    The pygmy-owl recovery team is currently developing a recovery plan 
for this species. During the development of a recovery strategy, the 
team will not only closely examine areas designated as critical habitat 
but also all lands within the listed population, to determine their 
importance and role in the recovery of the species. This process will 
allow substantially more in-depth analysis than we were afforded by the 
court and plaintiffs to designate critical habitat. If the recovery 
team, as a result of new information or analysis, further refines those 
areas designated in this final rule or identifies additional areas 
which they determine are essential to the conservation of the species, 
we will evaluate whether a revision of critical habitat is warranted at 
that time.
    Issue 8: Specific Projects and Activities.
    (8a) Comments: Critical habitat would affect specific projects such 
as erosion control measures on Brawley Wash and fire management in the 
Altar and Falcon Valley regions. Grazing would be affected by 
designation on private lands.
    Service Response: Critical habitat designations only apply to 
Federal lands, or federally funded or authorized projects on private 
lands. If there is no Federal nexus or involvement, then additional 
considerations are not necessary (see Issue 2 above). Where a Federal 
nexus exists, designation of critical habitat does not preclude 
projects or activities such as riparian restoration, erosion control, 
fire management, or grazing if they do not cause an adverse 
modification of critical habitat. We will work with landowners within 
designated critical habitat and Federal agencies that are required to 
consult with us under section 7 of the Act to ensure that land 
management will not adversely modify critical habitat. We also 
encourage landowners to restore riparian habitats including erosion 
control measures, and we can provide financial and technical assistance 
through our Partners for Fish and Wildlife Program.
    (8b) Comment: Designation of areas with existing pipelines and 
aqueducts would be affected and should be excluded. Routine maintenance 
of trails should be excluded.
    Service Response: Periodic maintenance of existing pipelines, 
roads, trails, or aqueducts would not typically constitute adverse 
modification of critical habitat. These areas generally lack the 
primary constituent elements described in this rule, and it is our 
intention to exclude such areas by definition. If maintenance would 
require removal of constituent elements, and Federal involvement is 
part of that activity, then section 7 consultation may be necessary.
    (8c) Comment: Designation of critical habitat may compromise 
wildfire prevention and suppression activities in those areas.
    Service response: We agree that wildfire prevention and suppression 
activity is very important to protect human life and property, and also 
from a resource protection standpoint. Fire protection of areas 
designated as critical habitat will be essential to ensure the 
conservation of the species. We will work with all landowners and 
managers responsible for these activities to ensure adequate fire 
prevention and suppression measures are in place and to protect 
resource values. Only fire prevention and suppression activity 
undertaken or funded by a Federal agency would require consultation 
under section 7 of the Act. Non-Federal activities will not be affected 
by critical habitat designation.
    Issue 9: Economic Impacts.
    (9a) Comment: The assumption applied in the economic analysis that 
the designation of critical habitat will cause no impacts above and 
beyond those caused by listing of the species is faulty, legally 
indefensible, and contrary to the ESA. ``Adverse modification'' and 
``jeopardy'' are different, will result in different impacts, and 
should be analyzed as such in the economic analysis.
    Service Response: The designation of critical habitat for the 
pygmy-owl has been evaluated in the economic context known as ``with'' 
and ``without'' the rule. It was found that the survival of the pygmy-
owl makes it necessary that any adverse modification of its habitat 
would jeopardize the species. Under this condition, any and all 
economic consequences would be due to the jeopardy call under section 7 
of the Act, and an adverse modification without a jeopardy call would 
not occur. Further, it is our position that both within and outside of 
critical habitat, Federal agencies should consult under the jeopardy 
standard if a proposed action is (1) within the geographic areas 
occupied by the species, whether or not owls have been detected on the 
specific project site; (2) the project site contains habitat features 
that can be used by the species; and (3) the proposed action is likely 
to adversely affect that habitat. The economic consequences identified 
during the comment period are all due to the listing of the pygmy-owl 
and not the designation of critical habitat. The economic analysis of 
designating critical habitat determined that the same regulatory 
process is in place ``with'' as well as ``without'' the rule, and 
consequently found no economic effects.
    (9b) Comment: The proposed designation of critical habitat will 
impose economic hardship on private landowners and businesses. There is 
an expressed concern that the proposed critical habitat designation 
would have serious financial implications for commercial and 
residential development businesses. It is suggested that designation 
would result in reduced property values, lost tax revenues, lost jobs, 
and foregone economic activity.
    Service Response: As stated in the economic analysis, the proposed 
rule to designate critical habitat for the pygmy-owl is not adding any 
new requirements to the current regulatory process. Since the adverse 
modification standard for critical habitat and the jeopardy standard 
are almost identical, the listing of the pygmy-owl itself initiated the 
requirement for consultation. This

[[Page 37433]]

critical habitat designation adds no additional requirements not 
already in place due to the species' listing.
    (9c) Comment: There is an expressed concern that the delay in 
acquiring Federal permits or the inability to acquire permits for 
further development, as a result of section 7 consultation, would be an 
economic hardship to both developers and homeowner associations.
    Service Response: The requirement for Federal agency consultation 
under section 7 of the Act for actions they carry out, fund, or 
authorize on Federal or non-Federal lands resulted from listing of the 
species, and no new requirements are imposed by critical habitat 
designation.
    (9d) Comment: There is an expressed concern that the value and 
security of bonds issued to construct public infrastructure might be 
threatened by critical habitat designation.
    Service Response: Bonds issued by non-Federal entities that are not 
insured by the Federal Government do not constitute a Federal nexus. 
However, an incidental take permit issued under section 10 of the Act 
would still be required if a taking of the pygmy-owl is possible. The 
designation of critical habitat does not add any additional 
requirements to the section 10 incidental take permit process.
    (9e) Comment: There is an expressed concern that all property 
owners who will be adversely affected by the designation of critical 
habitat should be provided just compensation.
    Service Response: This designation of critical habitat will not add 
any additional restrictions and will not affect property owners beyond 
those restrictions resulting from the listing of the pygmy-owl as 
endangered.
    (9f) Comment: Critical habitat may disrupt current and future 
Federal, State, and County land management activities and cause 
economic losses.
    Service Response: Federal agencies are required to consult with us 
when a species is listed under the Act. State and County entities are 
not required to consult with us unless a Federal nexus exists. The 
designation of critical habitat does not add any new requirements or 
restrictions.
    (9g) Comment: The designation will have harmful impacts on the 
quality of life, education, and economic stability of small towns. 
There is an expressed concern that the proposed critical habitat 
designation will change water diversions, groundwater pumping, road 
maintenance and land development.
    Service Response: As stated in the economic analysis, the proposed 
rule to designate critical habitat for the pygmy-owl is not adding any 
new requirements to the regulatory process. Since the adverse 
modification standard of critical habitat and the jeopardy standard are 
nearly identical, the listing of the pygmy-owl itself placed the 
requirement for consultation. This final rule to designate critical 
habitat adds no additional requirements that were not already in place 
due to the species' listing.
    (9h) Comment: There is an expressed concern that the designation 
would limit the construction of much needed schools, colleges, and 
community and recreation centers, thereby threatening the ability of 
small towns affected by the designation to expand and diversify their 
economy and to improve education.
    Service Response: As previously stated, this final rule designating 
critical habitat will not impose additional restrictions on private, 
cities, counties, State or Federal lands. Restrictions already in place 
due to the listing of the pygmy-owl require consultation with us when 
there is a Federal nexus. Any limitations or restrictions on 
construction were imposed due to the species' listing. Additional 
restrictions are not expected.
    (9i) Comment: There is an expressed concern that the economic 
stability of the towns of Kearny, Hayden, and Winkelman, as well as 
Pinal and Gila counties, depends on the continued operation of their 
mining complex, and further regulatory costs would threaten the 
corporation.
    Service Response: Critical habitat designation will not add new 
restrictions beyond those imposed by the listing of the pygmy-owl.
    (9j) Comment: The Service's designation of critical habitat has not 
adequately considered potential economic implications. There is 
opposition to the fact that the Service did not prepare an initial 
regulatory flexibility analysis to address potential impact to small 
businesses, as required under the Regulatory Flexibility Act.
    Service Response: The proposed rule was published under very tight 
time constraints by the court order on December 24, 1998. At that time 
we prepared a record of compliance (ROC) that the proposed critical 
habitat designation would not have a significant economic impact on 
small entities. A detailed analysis was initiated by a private firm 
under contract and subsequently, we distributed a draft of the economic 
analysis for a 30-day public comment period ending in May, 1999. The 
findings of the economic analysis indicate that the designation of 
critical habitat adds no new restrictions on economic activity that 
were not due to the listing of the pygmy-owl. Therefore, there are no 
economic effects on small entities attributable to this final rule, and 
a regulatory impact analysis is not required.
    (9k) There is a concern that the different jurisdictions impacted 
by critical habitat designation should be addressed separately; impacts 
should be addressed as individual cases, not collectively.
    Service Response: If the economic analysis would have detected 
economic effects attributable to the critical habitat designation, then 
those effects would have been enumerated for each of the areas of 
critical habitat and would have been estimated for each type of land 
and management involved. This information would have been used by the 
Secretary of the Department of the Interior to determine if the 
benefits of exclusion of the land outweighed the benefits of including 
the land as critical habitat. There are no economic effects 
attributable to critical habitat designation so the issue of separating 
economic effects is a moot point.

Summary of Changes From the Proposed Rule

    Below is a summary of the changes made to the legal descriptions 
for the cactus ferruginous pygmy-owl critical habitat designation. The 
maps included in the proposed rule accurately depicted the critical 
habitat proposed by the rule. Based on the comments we received, we 
discovered that several areas within the proposed critical habitat were 
not accurately described by the legal descriptions in the proposed 
rule, although the areas were accurately depicted on the maps. As 
discussed below, we are clarifying the legal descriptions in this final 
designation to conform to the area depicted by the maps, which remain 
unchanged.
    Changes in the legal descriptions below are of three types: (1) The 
result of typographical errors discovered after publication of the 
proposed rule; (2) corrections in sectional descriptions resulting from 
the use of more up-to-date Public Land Survey System data obtained from 
the Arizona Land Resource Information System (ALRIS) to more closely 
reflect mapped information of the proposed rule; and (3) clarification 
of the description for Tucson Mountain County Park, the boundary of 
which was obtained from Pima County Public Works and is more up-to-date 
than that depicted on the BLM map cited in the proposed rule and which 
was available from ALRIS.

[[Page 37434]]

Unit 1:

T. 19 S., R. 7 E.
T. 19 S., R. 8 E.
T. 21 S., R. 7 E.

Unit 2:

T. 14 S., R. 11 E.
T. 14 S., R. 12 E.

Unit 5b:

T. 9 S., R. 14 E.

Unit 6:

T. 4 S., R. 14 E.
T. 6 S., R. 15 E.
T. 6 S., R. 16 E.
T. 8 S., R. 16 E.
T. 9 S., R. 18 E.
T. 11 S., R. 18 E.
T. 12 S., R. 19 E.

Unit 7:

T. 1 N., R. 9 E.

    As a result of using ALRIS data for ownership, the acres summary in 
Table 1 also changed. The total acres increased by about 1% with the 
greatest change in Pinal County where BLM's total was reduced and the 
``Other'' category picked up that reduction. This is largely due to 
acreage originally identified as BLM that was actually Bureau of 
Reclamation when the newer data sets were analyzed. The remaining 
acreage differences are attributed to the differing methods of 
determining acres. For the proposed rule, sections and ownership were 
roughly counted and totaled manually by visual inspection of the cited 
maps. Subsequently, digital information was obtained from ALRIS and 
Pima County, which was used to create the updated version of Table 1 
(as well as the legal descriptions).
    Finally, as mentioned previously, lands in Tribal grazing 
allotments are excluded from critical habitat. We determined that 
pygmy-owl conservation could be adequately ensured without designation 
of the approximately 240 acres.

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 part of 
critical habitat. We cannot exclude areas from critical habitat if such 
exclusion would result in the extinction of the species concerned.
    Economic effects caused by listing the pygmy-owl as endangered and 
by other statutes are the baseline upon which critical habitat is 
imposed. The economic analysis must then examine the incremental 
economic and conservation effects of the critical habitat addition. 
Economic effects are measured as changes in national income, regional 
jobs, and household income. An analysis of the economic effects of 
pygmy-owl critical habitat designation was prepared (McKenney et al. 
1999) and made available for public review (April 15-May 15, 1999; 64 
FR 18597). The final analysis, which reviewed and incorporated public 
comments, concluded that no economic impacts are expected from critical 
habitat designation above and beyond that already imposed by listing 
the pygmy-owl. The only possible economic effects of critical habitat 
designation are on activities funded, authorized, or carried out by a 
Federal agency. These activities would be subject to section 7 
consultation if they may affect critical habitat. However, activities 
that may affect critical habitat may also affect the species, and would 
thus be subject to consultation regardless. Also, changes or mitigating 
measures that might increase the cost of the project would only be 
imposed as a result of critical habitat if the project adversely 
modifies or destroys that critical habitat. We believe that any project 
that would adversely modify or destroy critical habitat would also 
jeopardize the continued existence of the species and that reasonable 
and prudent alternatives to avoid jeopardizing the species would also 
avoid adverse modification of critical habitat. Thus, no regulatory 
burden or additional costs would accrue because of critical habitat 
above and beyond that resulting from listing.
    A copy of the economic analysis and description of the exclusion 
process with supporting documents are included in our administrative 
record and may be obtained by contacting our office (see ADDRESSES 
section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, we submitted this action 
for review by the Office of Management and Budget. Because the economic 
analysis identified no economic benefits from excluding any of the 
proposed critical habitat areas, we made a determination to designate 
all proposed critical habitat units. No inconsistencies with other 
agencies' actions and/or effects on entitlements, grants, user fees, 
loan programs, or the rights and obligations of their recipients, were 
identified in the economic analysis. This rule does not raise novel 
legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    In the economic analysis we determined that designation of critical 
habitat will not have a significant effect on a substantial number of 
small entities. As discussed in that document and in this final rule, 
designation of critical habitat will not restrict any actions beyond 
those already resulting from listing the pygmy-owl. We recognize that 
some towns, counties, and private entities are considered small 
entities in accordance with the Regulatory Flexibility Act, however, 
they also are not affected by the designation of critical habitat 
because no additional restrictions will result from this action.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    In the economic analysis we determined that designation of critical 
habitat will not cause--(a) any effect on the economy of $100 million 
or more; (b) any increases in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions in the economic analysis; or (c) any significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In the economic analysis we determined that no effects would occur 
to small governments as a result of critical habitat designation.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This designation will not ``take'' private property 
and will not alter the value of private property. Critical habitat 
designation is only applicable to Federal lands and to private lands if 
a Federal nexus exists.

Federalism

    This rule will not affect the structure or role of States, and will 
not have direct, substantial, or significant effects on States. As 
previously stated, critical habitat is only applicable to Federal lands 
and to non-Federal lands when a Federal nexus exists, and in the 
economic analysis we determined that no economic impacts would result 
from critical habitat designation.

[[Page 37435]]

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and does meet the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have made every effort to 
ensure that this final determination contains no drafting errors, 
provides clear standards, simplifies procedures, reduces burden, and is 
clearly written such that litigation risk is minimized.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required.

National Environmental Policy Act

    We have determined that EAs and EISs, as defined under the 
authority of the National Environmental Policy Act of 1969 (NEPA), need 
not be prepared in connection with regulations adopted pursuant to 
section 4(a) of the Act. We published a notice outlining our reasons 
for this determination in the Federal Register in October, 1983 (48 FR 
49244).

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) and 512 DM 2: We understand that we must 
relate to federally recognized Tribes on a Government-to-Government 
basis. Secretarial Order 3206 American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities and the Endangered Species Act states 
that ``Critical habitat shall not be designated in such areas an area 
that may impact Tribal trust resources unless it is determined 
essential to conserve a listed species. In designating critical 
habitat, we shall evaluate and document the extent to which the 
conservation needs of a listed species can be achieved by limiting the 
designation to other lands.'' Pygmy-owl critical habitat does not 
contain any Tribal lands nor lands that we have identified as impacting 
Tribal trust resources.

References Cited

    A complete list of all references cited in this final rule is 
available upon request from the Arizona Ecological Services Field 
Office (see ADDRESSES section).

Authors

    The primary author of this notice is Mike Wrigley (see ADDRESSES 
section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

    For the reasons given in the preamble, we amend 50 CFR part 17 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 Sec. 17.11(h) revise the entry for ``Pygmy-owl, cactus 
ferruginous'' under ``BIRDS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species                                                      Vertebrate
------------------------------------------------------------                        population where                              Critical     Special
                                                                 Historic range       endangered or      Status    When listed    habitat       rules
            Common name                  Scientific Name                               threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
               Birds
 
                   *                  *                  *                  *                  *                  *                  *
Pygmy-owl, cactus ferruginous......  Glaucidium brasilianum  U.S.A. (AZ, TX),       AZ                          E          600  Sec.  17.95           NA
                                      cactorum.               Mexico.                                                                   (b)
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend section 17.95(b) by adding critical habitat for the cactus 
ferruginous pygmy-owl (Glaucidium brasilianum cactorum) in the same 
alphabetical order as this species occurs in 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *
Cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum)

    1. Critical habitat units are depicted for Pima, Cochise, Pinal, 
and Maricopa counties, Arizona, on the maps below. The maps are for 
reference only; the areas in critical habitat are legally described 
below.
    2. Within these areas, the primary constituent elements are 
those habitat components that are essential for the primary 
biological needs of foraging, nesting, rearing of young, roosting, 
sheltering, and dispersal or the capacity to develop those habitat 
components. The primary constituent elements are found in areas that 
support, or have the potential to support, riparian forests, 
riverbottom woodlands, xeroriparian forests, and semidesert 
grassland, and the Arizona upland subdivision of Sonoran 
desertscrub. Within these vegetation communities, specific plant 
associations that are essential for the primary biological needs of 
the cactus ferruginous pygmy-owl include, but are not limited to, 
the following vegetation: cottonwood, willow, ash, mesquite, palo 
verde, ironwood, hackberry, saguaro cactus, and/or organ pipe 
cactus.
    3. Critical habitat does not include non-Federal lands covered 
by a legally operative incidental take permit for the cactus 
ferruginous pygmy-owl issued under section 10(a) of the Act, nor 
Indian Tribal grazing allotments.
    Unit 1. Pima County, Arizona. From BLM map Sells, Ariz. 1979, 
Atascosa Mts., Ariz. 1979.
    Gila and Salt Principal Meridian, Arizona: T. 17 S., R. 8 E., 
secs. 1 to 3, E\1/2\ sec. 4, E\1/2\ sec. 9, secs. 10 to 16, 21 to 
36; T. 17 S., R. 9 E., that portion of sec. 1 lying west of St. Hwy 
286, secs. 2 to 10, those portions of secs. 11, 12, and 14 lying 
west of St. Hwy 286, secs. 15 to 22, those portions of secs. 23 and 
26 lying west of St. Hwy 286, secs. 27 to 34, that portion of sec. 
35 lying west of St. Hwy 286; T. 18 S., R 7 E., sec. 1, those 
portions of secs. 2 and 11 lying east of Papago Indian Reservation 
Bdy, sec. 12, those portions of secs. 13, 14, 24, 25, and 36 lying 
east of Papago Indian Reservation Bdy; T. 18 S., R. 8 E., secs. 1 to 
36; T. 18 S., R. 9 E., that portion of sec. 2 lying west of Hwy 286, 
secs. 3 to 10, those portions of secs. 11 and 14 lying west of St. 
Hwy 286, secs. 15 to 22, those portions of secs. 23, 26, 27 and 28 
lying

[[Page 37436]]

west and north of St. Hwy 286, secs. 29 to 31, those portions of 
secs. 32 and 33 lying west and north of St. Hwy 286; T. 19 S., R. 7 
E., those portions of secs. 1, 12, 13, 14, and 23 lying east of 
Papago Indian Reservation Bdy, secs. 24 and 25, those portions of 
secs. 26 and 34 lying east of Papago Indian Reservation Bdy, secs. 
35, 36; T. 19 S., R. 8 E., secs. 1 to 12, N\1/2\ sec. 13, secs. 14 
to 21, W\1/2\ sec. 22, S\1/2\ sec. 26, S\1/2\ & NW\1/4\ sec. 27, 
secs. 28 to 35; T. 19 S., R. 9 E., sec. 6; T. 20 S., R. 7 E., secs. 
1, 2, those portions of secs. 3, 9, and 10 lying east of Papago 
Indian Reservation Bdy, secs. 11 to 15, those portions of secs. 16, 
17, and 21 lying east of Papago Indian Reservation Bdy, secs. 22 to 
27, those portions of secs. 28, 29, 32, and 33 lying east of Papago 
Indian Reservation Bdy, secs. 34 to 36; T. 20 S., R. 8 E., secs. 2 
to 11, 14 to 23, 27 to 33; T. 21 S., R. 7 E., secs. 1 to 4, those 
portions of secs. 5 and 8 lying east of Papago Indian Reservation 
Bdy, secs. 9 to 16, those portions of secs. 17 and 20 lying east of 
Papago Indian Reservation Bdy, secs. 21 to 27, those portions of 
secs 28 and 29 lying east of Papago Indian Reservation Bdy, that 
portion of sec. 33 lying north of Papago Indian Reservation Bdy, 
secs. 34 to 36; T. 21 S., R. 8 E., secs. 4 to 9; T. 22 S., R. 7 E., 
secs. 1 to 3, 10 to 15, 22 to 25; T. 22 S., R. 8 E., S\1/2\ SW, 
SW\1/4\ SE\1/4\ sec. 18, W\1/2\ & W\1/2\ E\1/2\ sec. 19, that 
portion of sec. 20 outside Buenos Aires NWR Bdy, secs. 29, 30.
    Unit 2. Pima County, Arizona. From BLM map Silver Bell Mts., 
Ariz. 1977.
    Gila and Salt Principal Meridian, Arizona: T. 13 S., R. 9 E., 
secs. 31 to 36; T. 13 S., R. 10 E., secs. 31 to 36; T. 13 S., R. 12 
E., those portions of secs. 31 to 34 lying within Tucson Mountain 
County Park; T. 14 S., R. 9 E., secs. 1 to 12; T. 14 S., R. 10 E., 
secs. 1 to 12; T. 14 S., R. 11 E., that portion of secs. 1 and 2 
lying within the Tucson Mountain County Park, secs. 5 to 8, 10, 11, 
those portions of secs. 12 and 13 lying within Tucson Mountain 
County Park, secs. 14 and 15; T. 14 S., R. 12 E., those portions of 
secs. 1 to 25, lying within Tucson Mountain County Park; T. 14 S. R. 
13 E., those portions of secs. 7, 18, 19, 28, 29, and 30 lying 
within Tucson Mountain County Park. (Note: Areas described for 
Tucson Mountain County Park do not match the Silver Bell Mts., Ariz. 
BLM map cited above. This description is based on more recent 
information obtained from Pima County Public Works.)
    Unit 3. Pima County, Arizona. From BLM map Silver Bell Mts., 
Ariz. 1977.
    Gila and Salt Principal Meridian, Arizona: T. 12 S., R. 12 E., 
those portions of secs. 8 and 9 lying south and west of Interstate 
10, secs. 17, 20, and 29.
    Unit 4. Pima and Pinal Counties, Arizona. From BLM maps Casa 
Grande, Ariz. 1979, Silver Bell Mts., Ariz. 1977.
    Gila and Salt Principal Meridian, Arizona: T. 10 S., R. 11 E., 
secs. 1 to 36; T. 10 S., R. 12 E., secs. 4 to 9, 16 to 21, 28 to 33; 
T. 11 S., R. 11 E., secs. 1 to 5, 9 to 15, secs. 23, 24; T. 11 S., 
R. 12 E., secs. 3 to 10, 14 to 30, N\1/2\ sec. 31, secs. 32 to 36; 
T. 11 S., R. 13 E., secs. 19, 28 to 33; T. 12 S., R. 12 E., secs. 1 
to 4, those portions of secs. 8 and 9 lying north and east of 
Interstate 10, secs. 10 to 14, 23, 24, that portion of sec. 25 lying 
north of W. Cortaro Farms Road, that portion of sec. 26 lying north 
of W. Cortaro Farms Road and north and east of Interstate 10; T. 12 
S., R. 13 E., secs. 4 to 9, 16 to 21, those portions of secs. 29 and 
30 lying north of W. Cortaro Farms Road.
    Unit 5a. Pinal County, Arizona. From BLM maps Mesa, Ariz. 1979, 
Casa Grande, Ariz. 1979.
    Gila and Salt Principal Meridian, Arizona: T. 5 S., R. 11 E., 
secs. 1 to 36; T. 6 S., R. 11 E., secs. 1 to 36; T. 7 S., R. 11 E., 
secs. 1 to 36; T. 8 S., R. 11 E., secs. 1 to 36; T. 9 S., R. 11 E., 
secs. 1 to 36.
    Unit 5b. Pinal County, Arizona. From BLM maps Casa Grande, Ariz. 
1979, Mammoth, Ariz. 1986.
    Gila and Salt Principal Meridian, Arizona: T. 8 S., R. 15 E., 
secs. 1 to 36; T. 9 S., R. 12 E., secs. 1 to 36; T. 9 S., R. 13 E., 
secs. 1 to 36; T. 9 S., R. 14 E., secs. 1 to 31; T. 9 S., R. 15 E., 
secs. 1 to 12, 14 to 21, 28 to 30.
    Unit 6. Cochise, Pima, and Pinal Counties, Arizona. From BLM 
maps Mesa, Ariz. 1979, Globe, Ariz. 1986, Mammoth, Ariz. 1986, and 
Tucson, Ariz. 1979.
    Gila and Salt Principal Meridian, Arizona: T. 4 S., R. 9 E., 
those portions of secs. 1, 12, 13, and 24 lying east of U.S. Hwy 89; 
T. 4 S., R. 10 E., secs. 1 to 5, that portion of sec. 6 lying east 
of U.S. Hwy 89, secs. 7 to 24; T. 4 S., R. 11 E., secs. 7 to 36; T. 
4 S., R. 12 E., secs. 1 to 12; T. 4 S., R. 13 E., that portion of 
sec. 1 lying south and west of St. Hwy 177, secs. 2 to 12; T. 4 S., 
R. 14 E., those portions of secs. 5, 6, 7, 8, 16, and 17 lying south 
and west of St. Hwy 177, secs. 18, 20, those portions of secs. 21, 
22, 26, and 27, lying south and west of St. Hwy 177, secs. 28, 29, 
33, and 34, that portion of sec. 35 lying south and west of St. Hwy 
177; T. 5 S., R. 14 E., those portions of secs. 1 and 2 lying south 
and west of St. Hwy 177, secs. 3, 11, 12; T. 5 S., R. 15 E., those 
portions of secs. 6, 7, 8, 9, and 10 lying south and west of St. Hwy 
177, that portion of sec. 14 lying south and west of the Pinal and 
Gila Counties boundary (all within Pinal County), that portion of 
sec. 15 lying south of St. Hwy 177 and west of the Pinal and Gila 
Counties boundary (all within Pinal County), secs 16 to 22, that 
portion of sec. 23 lying south and west of the Pinal and Gila 
Counties boundary (all within Pinal County), that portion sec. 24 
lying west of St. Hwy 77 and south of Pinal and Gila Counties 
boundary (all within Pinal County), that portion of sec. 25 lying 
south and west of St. Hwy 77 and north and east of San Manuel 
Railroad, those portions of secs. 26 and 36 lying north and east of 
San Manuel Railroad; T. 5 S., R. 16 E., those portions of secs. 30 
and 31 lying south and west of St. Hwy 77; T. 6 S., R. 15 E., that 
portion of sec. 1 lying north and east of San Manuel Railroad; T. 6 
S., R. 16 E., that portion of sec. 5 lying south and west of St. Hwy 
77, that portion of sec. 6 lying south and west of St. Hwy 77 and 
north and east of San Manuel Railroad, that portion of sec. 7 lying 
north and east of San Manuel Railroad, that portion sec. 8 lying 
south and west of St. Hwy 77 and north and east of San Manuel 
Railroad, those portions of secs. 9 and 16 lying south and west of 
St. Hwy 77, those portions of secs. 17 and 20 lying east of San 
Manuel Railroad, those portions of secs. 21 and 28 lying west of St. 
Hwy 77, those portions of secs. 29 and 32 lying east of San Manuel 
Railroad, that portion of sec. 33 lying west of St. Hwy 77; T. 7 S., 
R. 16 E., that portion of sec. 4 lying west of St. Hwy 77, secs. 5 
to 8, those portions of secs. 9, 10, and 15 lying south and west of 
St. Hwy 77, secs. 16 to 21, those portions of secs. 22, 23, 25, and 
26 lying south and west of St. Hwy 77, secs. 27 to 35, that portion 
of sec. 36 lying south and west of St. Hwy 77; T. 8 S., R. 16 E., 
that portion of sec. 1 lying south and west of St. Hwy 77, secs. 2 
to 12, that portion of sec. 13 lying east of Camino Rio Road, secs. 
15 to 22, 28 to 32; T. 8 S., R. 17 E., that portion of sec. 6 south 
and west of St. Hwy 77, that portion of section 7 west of St. Hwy 77 
and west of River Road, that portion of sec. 17 lying south and west 
of River Road, that portion of sec. 18 south and west of River Road 
and north and east of a line defined by Camino Rio Road where it 
runs southeasterly from the west boundary of sec. 18 to its 
intersection with St. Hwy 77 then southeasterly along St. Hwy 77 to 
its intersection with Old State Hwy 77 then along Old State Hwy 77 
to its intersection with the south boundary of sec. 18, that portion 
of sec. 19 lying east of Old State Highway 77, those portions of 
secs. 20, 28, and 29 lying south and west of River Road, that 
portion of sec. 30 lying east of Old State Hwy 77 and St. Hwy 77, 
sec. 32, that portion of sec. 33 lying west of River Road; T. 9 S., 
R. 16 E., secs. 5 to 8; T. 9 S., R. 17 E., those portions of secs. 3 
and 4 lying west of River Road, sec. 9, those portions of secs. 10, 
14, and 15 lying west of River Road, NE\1/4\ sec. 22, those portions 
of secs. 23, 24, and 25 west of River Road; T. 9 S., R. 18 E., those 
portions of secs. 30, 31 and 32 west of River Road; T. 10 S., R. 18 
E., those portions of secs. 5, 6, 7, and 8 lying north and east of 
Redington Road, sec. 9, those portions of secs. 16, 17, and 21 lying 
north and east of Redington Road, secs. 22 and 27, those portions of 
secs. 28 and 33 lying east of Redington Road, sec. 34; T. 11 S., R. 
18 E., sec. 2, those portions of secs. 3 and 10 lying east of 
Redington Road, secs. 11 and 14, those portions of secs. 15 and 22 
lying east of Redington Road, secs. 23 and 26, that portion of sec. 
27 lying east of Redington Road, that portion of sec. 34 lying east 
of Redington Road and west of Cascabel Road, that portion of sec. 35 
lying west of Cascabel Road; T. 12 S., R. 18 E., that portion of 
sec. 2 west of Cascabel Road, that portion of sec. 3 lying east of 
Redington Road, those portions of secs. 11, 12, and 13 lying west of 
Cascabel Road; T. 12 S., R. 19 E., those portions of secs. 18, 19, 
29, and 30 lying west of Cascabel Road, sec. 31, that portion of 
sec. 32 and 33 lying west of Cascabel Road; T. 13 S., R. 19 E., that 
portion of sec. 4 lying west of Cascabel Road, sec. 5, those 
portions of secs. 9, 10, and 15 lying west of Cascabel Road.
    Unit 7. Maricopa and Pinal Counties, Arizona. From BLM maps 
Theodore Roosevelt Lake, Ariz. 1981 and Mesa, Ariz. 1979.
    Gila and Salt Principal Meridian, Arizona: T. 3 N., R. 7 E., 
that portion of sec. 33 lying easterly of Salt River Indian 
Reservation Bdy, secs. 34 to 36; T. 3 N., R. 8 E., secs. 31 to 33; 
T. 2 N., R. 7 E., secs. 1 to 3, those portions of secs. 4, 5, 6 and 
7 lying south and east of

[[Page 37437]]

Salt River Indian Reservation Bdy, secs. 8 to 17, that portion of 
sec. 18 lying south and east Salt River Indian Reservation Bdy, 
secs. 19 to 25, E \1/2\ sec. 26, E \1/2\ sec. 35, sec. 36; T. 2 N., 
R. 8 E., secs. 4 to 8, 18, 19, 25 to 36; T. 2 N., R. 9 E., secs. 30, 
31; T. 1 N., R. 9 E., secs. 6, 7, 18 to 21, 27 to 30, 34 to 36; T. 1 
N., R. 10 E., secs. 31, 32; T. 1 S., R. 9 E., secs. 1 to 3, 10 to 
15, 22 to 26, those portions of secs. 27, 35 and 36 lying north and 
east of U.S. Hwy 60/89; T. 1 S., R. 10 E., secs. 5 to 8, 17 to 20, 
29 to 32; T. 2 S., R. 9 E., that portion of sec 1 lying north and 
east of U.S. Hwy 60/89; T. 2 S., R. 10 E., secs. 1 to 5, those 
portions of secs. 6, 7 and 8 lying north and east of U.S. Hwy 60/89, 
secs. 9 to 16, that portion of sec. 17 lying north and east of U.S. 
Hwy 60/89 and south and east of U.S. Hwy 89, that portion of sec. 20 
lying east of U.S. Hwy 89, secs. 21 to 28, those portions of secs. 
29 and 32 lying east of U.S. Hwy 89, secs. 33 to 36: T. 3 S., R. 10 
E., secs. 1 to 4, those portions of secs. 5 and 8 lying east of U.S. 
Hwy 89, secs. 9 to 16, those portions of secs. 17, 18, and 19 lying 
east of U.S. Hwy 89, secs. 20 to 29, those portions of secs. 30 and 
31 lying east of U.S. Hwy 89, secs. 32 to 36.

BILLING CODE 4310-55-P

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    Dated: June 30, 1999.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-17404 Filed 7-6-99; 1:25 pm]
BILLING CODE 4310-55-C