[Federal Register Volume 70, Number 201 (Wednesday, October 19, 2005)]
[Rules and Regulations]
[Pages 60886-61009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20144]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

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

[[Page 60886]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT88


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the southwestern willow flycatcher 
(Empidonax traillii extimus) pursuant to the Endangered Species Act of 
1973, as amended (Act). In total, approximately 48,896 hectares (ha) 
(120,824 acres (ac)) or 1,186 kilometers (km) (737 miles (mi)) fall 
within the boundaries of the critical habitat designation. The critical 
habitat is located in Apache, Cochise, Gila, Graham, Greenlee, 
Maricopa, Mohave, Pinal, Pima, and Yavapai counties in Arizona (AZ), 
Kern, Santa Barbara, San Bernardino, and San Diego counties in southern 
California (CA), Clark County in southeastern Nevada (NV), Grant, 
Hidalgo, Mora, Rio Arriba, Soccoro, Taos, and Valencia counties in New 
Mexico (NM), and Washington County in Southwestern Utah (UT).

DATES: This rule is effective November 18, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the AZ Ecological Services Office, U.S. Fish and Wildlife Service, 2321 
West Royal Palm, Suite 103, Phoenix, AZ 85021 (telephone 602/242-0210). 
The final rule, final environmental analysis, final economic analysis, 
and maps are available via the Internet at http://www.fws.gov/arizonaes.

FOR FURTHER INFORMATION CONTACT: For information about Santa Barbara 
County in CA, contact Diane K. Noda, Field Supervisor, Ventura Fish and 
Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA, 93003 
(telephone 805/644-1766; facsimile 805/644-3958). For information about 
San Bernardino or San Diego Counties in CA, contact Jim Bartel, Field 
Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, 
Carlsbad, CA 92011 (telephone 760/431-9440; facsimile 760/431-9624). 
For information about Kern County in CA, contact Wayne White, Field 
Supervisor, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room 
W-2605, Sacramento, CA 95825 (telephone 916/414-6600; facsimile 916/
414-6713). For information about Grant, Hidalgo, Mora, Rio Arriba, 
Soccoro, Taos, or Valencia Counties in NM, contact Susan MacMullin, 
Field Supervisor, NM Fish and Wildlife Service Office, 2105 Osuna Road 
NE, Albuquerque, NM 87113 (telephone 505/346-2525; facsimile 505/346-
2542). For information about Clark County in NV, contact Cynthia 
Martinez, Field Supervisor, Las Vegas Fish and Wildlife Service Office, 
4701 North Torrey Pines Drive, Las Vegas, NV 89130 (telephone 702/515-
5230; facsimile 702/515-5231. For information about Washington County 
in UT, contact Henry Maddux, Field Supervisor, Salt Lake City Fish and 
Wildlife Service Office, 2369 West Orton Circle, Suite 50, West Valley 
City, UT 84119 (telephone 801/975-3330; facsimile 801/975-3331). For 
information about Apache, Cochise, Gila, Graham, Greenlee, Maricopa, 
Mohave, Pinal, Pima, or Yavapai Counties in AZ, contact Steve Spangle, 
Field Supervisor, AZ Fish and Wildlife Service Office, 2321 West Royal 
Palm, Suite 103, Phoenix, AZ 85021 (telephone 602/242-0210; facsimile 
602/242-2513).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 466 species or 37 percent 
of the 1,268 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat.
    We address the habitat needs of all 1,268 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
section 4 recovery planning process, the section 9 protective 
prohibitions of unauthorized take, section 6 funding to the States, and 
the section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that two courts found our definition of adverse 
modification to be invalid (March 15, 2001, decision of the United 
States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish 
and Wildlife Service et al., F.3d 434 and the August 6, 2004, Ninth 
Circuit judicial opinion, Gifford Pinchot Task Force v. United State 
Fish and Wildlife Service). In response to these decisions, we are 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of the species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically

[[Page 60887]]

imperiled species, and final listing determinations on existing 
proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects, the cost of requesting and responding to public 
comment, and in some cases the costs of compliance with the National 
Environmental Policy Act (NEPA). None of these costs result in any 
benefit to the species that is not already afforded by the protections 
of the Act enumerated earlier, and they directly reduce the funds 
available for direct and tangible conservation actions.

Background

    Background information on the southwestern willow flycatcher can be 
found in our proposal of critical habitat for the southwestern willow 
flycatcher, published in the Federal Register on October 12, 2004 (69 
FR 60706); the Southwestern Willow Flycatcher Recovery Plan (USFWS 
2002); our previous designation of critical habitat for this species, 
published on July 22, 1997 (62 FR 39129), and August 20, 1997 (62 FR 
44228); and the final rule listing this bird as endangered (February 
27, 1995; 60 FR 10694). That information is incorporated by reference 
into this final rule. This rule becomes effective on the date listed 
under DATES at the beginning of this document, and replaces the July 
22, 1997, critical habitat designation for this species that was set 
aside pursuant to a court order on May 11, 2001.

Previous Federal Actions

    Previous Federal actions for the southwestern willow flycatcher can 
be found in our proposal of critical habitat for the southwestern 
willow flycatcher published on October 12, 2004 (69 FR 60706). That 
information is incorporated by reference into this final rule.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the southwestern willow flycatcher 
in the proposed rule published on October 12, 2004 (69 FR 60706). The 
comment period was extended on December 13, 2004 (69 FR 72161), and on 
March 31, 2005 (70 FR 16474), resulting in the comment period being 
continuously open until May 31, 2005. The comment period was re-opened 
once more from July 7 to July 18, 2005 (70 FR 39227). We contacted the 
appropriate Federal, State, and local agencies, Tribes, scientific 
organizations, elected officials, and other interested parties and 
invited them to comment on the proposed rule. We contacted these groups 
by letter, electronic mail, and/or post card at the time of publication 
of the proposed rule; at each extension of the comment period; when we 
announced the availability of the draft economic analysis, draft 
environmental assessment, and location of public hearings (70 FR 
21988); and during re-opening of the comment period (70 FR 39227). 
Following publication of each Federal Register notice, we widely 
distributed news releases and posted them on the Internet. We also sent 
two newsletter updates to these groups during the rulemaking process to 
update them on the status of the proposal and associated documents.
    In addition, we invited public comment on the proposal through the 
publication of legal notices in 14 regional newspapers announcing 8 
public hearings, 8 public information meetings, and the availability of 
the draft economic analysis and draft environmental assessment. These 
legal notices were published in the Arizona Republic, Silver City Daily 
Press, Santa Fe New Mexican, Grand Junction Sentinel, The Spectrum (St 
George, UT), Las Vegas Review Journal, Kern Valley Sun, The Bakersfield 
Californian, Riverside Press-Enterprise, San Bernardino Sun, San Diego 
Union Tribune, Albuquerque Journal, Albuquerque Tribune, and Valley 
Courier (Alamosa, CO). We published legal ads prior to NEPA scoping 
meetings and also when we announced the documents' availability and the 
public hearings.
    We held public hearings and NEPA informational open houses at 
Escondido and Chino, CA (May 2-3, 2005); Las Vegas, NV, and Lake 
Isabella, CA (May 9-10, 2005); and Mesa, AZ, Silver City, NM, 
Albuquerque, NM, and Alamosa, CO (May 16-19, 2005). We also contacted 
and sent press releases to news media in Arizona, New Mexico, Southern 
California, Southern Nevada, Southern Utah and Southern Colorado. 
Additional public information meetings were held in Camp Verde, AZ 
(February 17, 2005--sponsored by the Verde Watershed Association); 
Albuquerque, NM (May 18, 2005--sponsored by Northern NM Pueblos), 
Bishop, CA (May 24, 2005--sponsored by Los Angeles Department of Water 
and Power), and Safford, AZ (July 7, 2005--sponsored by Graham County). 
All comments and new information received during the open comment 
period have been incorporated into this final rule as appropriate.
    We received a total of 534 pieces of correspondence (e-mails, 
letters, and faxes) during the public comment periods. Of the 534 
comment letters, 237 were received from individuals, 164 from 
government agencies, 31 from 21 different tribes, 62 from 
organizations, and 40 from businesses.
    We received comments from each State represented in the proposed 
designation. We received 260 comments letters from AZ, 72 comment 
letters from CA, 64 from NM, 40 from CO, 8 from NV, and 5 from UT. A 
total of 85 were received from outside of these States or areas where 
critical habitat was proposed for designation. Comments from each piece 
of correspondence were identified, grouped by issue, and reviewed.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from at least three 
knowledgeable individuals who have expertise with the species, with the 
geographic region where the subspecies occurs, and/or familiarity with 
the principles of conservation biology. Of the seven individuals 
contacted, three responded. The peer reviewers that submitted comments 
generally supported the proposal and provided us with comments, which 
are included in the summary below and incorporated into the final rule, 
as appropriate. We received comments from the peer reviewers during the 
comment period on our proposed rule.

Peer Review Comments

    (1) Comment: Peer reviewers commented that we made good use of the 
current data, published and gray literature, expert opinion, and the 
Recovery Plan (USFWS 2002).
    Our Response: We believe we have considered and applied to this 
designation the best available scientific

[[Page 60888]]

and commercial information regarding the southwestern willow 
flycatcher.
    (2) Comment: One peer reviewer commented that while we described in 
detail the dynamic aspects of flycatcher habitat, that dynamic 
component is not reflected in the primary constituent elements (PCEs). 
Limiting critical habitat to only where vegetation currently exists 
undermines the dynamic component of its habitat.
    Our Response: As we have described in the proposed rule and this 
final rule, the dynamic aspects of flycatcher habitat are an important 
component of its long-term suitability for nesting and the overall 
quality and presence of riparian vegetation. Because flycatchers 
commonly place nests in the dense riparian vegetation in early 
successional growth, recycling of habitat from natural disturbances 
(i.e., flooding) is necessary to promote dense growth. Germination and 
growth of riparian vegetation is essential. As a consequence of river 
dynamics and proximity to water, the location and/or condition of its 
habitat can change from one season to the next due to drought, 
flooding, or simple growth of vegetation. Our PCEs focused on the end 
result of all the components that culminate in the development of 
flycatcher habitat. We described those components (e.g., broad 
floodplain, surface water, fine sediments, hydrologic regime, channel-
floodplain connectivity, elevated groundwater, etc.) in detail in the 
supporting text for the PCEs (69 FR 60712-60715). For example, we 
described in the Sites for Germination and Seed Dispersal section, the 
importance of appropriate floodplain conditions for the development, 
abundance, distribution, maintenance, and germination of flycatcher 
habitat, including features such as elevated groundwater, and fine/
moist soils for seed germination and insect production.
    As the peer reviewer mentioned, we described in great detail the 
dynamic aspects of flycatcher habitat location and growth in the 
proposed rule. However, we did not reflect the essential aspect of 
vegetation germination and growth (i.e., succession) that should 
accompany these PCEs. In order to more accurately reflect our proposal 
and the PCEs for the southwestern willow flycatcher, we have added a 
``successional'' component to the PCEs. The Act requires that Federal 
action agencies consider and consult on actions that affect the PCEs. 
Thus, projects that impede the regeneration and/or growth of riparian 
vegetation, depending on the scope of the project, could result in an 
adverse affect to riparian habitat, thus requiring consultation under 
section 7 of the Act.
    (3) Comment: One peer reviewer commented, with respect to the PCEs, 
that flycatcher habitat is more than dense vegetation. Southwestern 
willow flycatchers require a mosaic of riparian vegetation in a variety 
of developmental (i.e., successional) stages.
    Our Response: We agree. Southwestern willow flycatcher habitat 
consists of riparian vegetation in a variety of growth stages used for 
a variety of life-history needs, such as foraging, migration, and 
dispersal. An area with dense vegetation for nest placement is the most 
defined structure and is captured in PCEs 1b through 1e. By emphasizing 
shorter/sparser vegetation, with a mosaic not uniformly dense as small 
as 0.1 ha (.25 ac), PCEs 1a and 1e not only encompasses riparian plant 
species, but important habitats for breeding and foraging southwestern 
willow flycatchers, but also accounts for habitat for dispersing and 
migrating southwestern willow flycatchers. Also, on the basis of the 
issue raised in this comment, and the need for further clarification, 
we expanded PCE number 1 in this final rule to accurately reflect other 
life-history needs of the southwestern willow flycatcher (i.e., 
migration, dispersal, foraging, and shelter) fulfilled by riparian 
vegetation described in our proposed and final rules. However, we note 
that the methodology used for designating critical habitat for the 
southwestern willow flycatcher was based around nesting territories, 
and critical habitat is not being designated solely as an area that is 
used for migration, dispersal, foraging, and shelter.
    (4) Comment: Two peer reviewers remarked that extant, large 
populations of southwestern willow flycatchers are the most important 
assets for recovery. But excluding other locations with smaller 
populations may fall short in providing specific areas essential to the 
conservation of a listed species and that may require special 
management considerations. Management Units where recovery goals exist 
that are not represented in this designation were used as examples.
    Our Response: We recognize that there are locations and areas 
within the geographical area occupied by the southwestern willow 
flycatcher that were not proposed as critical habitat. We also agree 
with the comment that locations with smaller breeding populations or 
improvement of habitat conditions in areas with no breeding populations 
are important. However, section 3(5)(c) of the Act states that not all 
areas that can be occupied by a species should be designated as 
critical habitat unless the Secretary determines that all such areas 
are essential to the conservation of the species. As described below, 
the methodology used to define those areas that meet the definition of 
critical habitat focused on large populations that are in high 
connectivity to one another. Thus, while not all areas important for 
flycatcher recovery were proposed as critical habitat, we believe this 
designation defines those areas that are essential. We also acknowledge 
that while Recovery Plans formalize the recovery strategy for a 
species, they are not regulatory documents and that critical habitat 
can contribute to the overall recovery strategy for a listed species, 
but does not, by itself, achieve recovery plan goals.
    We encourage Federal and State agencies, Tribal governments, 
municipalities, private groups, and landowners to continue conducting 
surveys for flycatchers, protect and strive to improve smaller 
populations of flycatchers, and manage flycatcher habitat to create 
more populations in order to reach recovery. Because an area is not 
designated as critical habitat, does not mean it is not important for 
flycatcher recovery.
    (5) Comment: Two peer reviewers, who were involved with the 
development of the population viability analysis for the flycatcher, 
generally agreed that we interpreted the information correctly and 
appropriately identified 10 territories as a large population. One 
reviewer commented that, ``the recommendation in the Recovery Plan with 
regard to metapopulation stability was based on a population viability 
analysis conducted to answer questions about the relationship between 
individual flycatcher sites and their relative importance to overall 
flycatcher population size. The emphasis in the Recovery Plan of the 
importance of large populations to metapopulation stability is based on 
the positive relationship between population size and colonization 
potential. The relationship however is non-linear with increase in 
colonization potential diminishing for growth above 10 territories and 
virtually disappearing for growth above 25 territories. Given this, a 
biologically based break point of 10 territories to distinguish between 
large and small populations (sites) is appropriate.''
    Our Response: We recognize that the use of numbers and break points 
can be difficult, and also agree that we interpreted and used the data 
appropriately.

[[Page 60889]]

    (6) Comment: Peer reviewers generally agreed that our application 
of a 29 km (18 mi) radius, determined by the between-year movements 
recorded from banded southwestern willow flycatchers, was appropriate 
to delineate the limits of essential habitat and a high degree of 
connectivity between collections of smaller sites. However, two peer 
reviewers recognize that, given more time and with additional banding, 
survey, and monitoring efforts, it is likely that greater distance 
movements would be recorded more frequently.
    Our Response: We acknowledge the input provided by the reviewers 
with respect to longer movements, and note that the researchers have 
also provided this perspective. We understand that there are some 
between-year flycatcher movements that are very large (greater than 400 
km/248 miles) (E. Paxton, USGS, e-mail). However, these movements, 
while important to understand the connection of populations, are not 
common. Populations located hundreds of kilometers (miles) apart would 
not likely be considered ``highly'' connected. Conversely, sites only a 
kilometer or so apart could hardly be considered a different site. From 
1997 to 2003, Paxton (USGS, e-mail) reported 267 of 292 band recoveries 
occurred within 29 km (18 mi) of previous year's location. Our approach 
with respect to use of the results of banding data, was to determine 
highly connected southwestern willow flycatcher sites in order to 
identify essential habitat and define population connectivity. We 
believe our interpretation of the data for the purposes used here was 
appropriate.
    (7) Comment: Peer reviewers supported using the survey results from 
the years 1993 to 2002 to develop this designation of critical habitat 
for the southwestern willow flycatcher.
    Our Response: The information collected throughout the bird's range 
by the public and surveyors completing and submitting forms, and State 
and Federal agencies summarizing and cataloging these results in 
databases is invaluable. It is this quality and level of data that 
provides us the ability to develop the appropriate guidance documents 
and regulations pursuant to the Act that assist in the recovery of 
federally listed species such as the southwestern willow flycatcher.
    (8) Comment: Peer reviewers generally agreed that a lateral extent 
boundary tracking the extent of riparian vegetation within the 100-year 
floodplain was appropriate.
    Our Response: As one peer reviewer noted and we pointed out in the 
proposed rule, flycatcher habitat will change its location and 
condition within the 100-year floodplain due to events such as 
flooding, drought, and vegetation growth. Therefore, a lateral extent 
that reasonably captures the boundaries of that dynamic habitat 
movement, we believe, is appropriate.
    (9) Comment: One peer reviewer commented that rarely, flycatcher 
breeding habitat may persist outside of the 100-year floodplain in 
response to an artificial or man-made situation.
    Our Response: We are aware that infrequently, flycatcher breeding 
habitat and migratory habitat may occur in unusual locations outside 
the floodplain. There may also be more natural situations where 
flycatchers use upland habitat for nesting or foraging. However, we 
believe we captured essential areas across the bird's range through our 
methodology as described in this rule. We point out, as the reviewer 
did, that direct or indirect adverse affects to those areas are still 
subject to consultation under section 7 of the Act and those birds are 
still protected by the prohibitions set forth in section 9 of the Act.
    (10) Comment: One peer reviewer pointed out that there are 
significant anthropogenic influences throughout the bird's range that 
help support southwestern willow flycatcher habitat which we did not 
elaborate on in the proposed rule. Because of that, there may be some 
confusion over what constitutes a ``riparian developed'' area.
    Our Response: As the peer reviewer noted, irrigation canals and/or 
agricultural run-off, among other things, can help develop and support 
flycatcher habitat. The Recovery Plan (USFWS 2002: D-15) discussed that 
``* * * although some flycatcher breeding sites * * * are relatively 
un-impacted by human activities, most of the riparian vegetation 
patches in which the flycatcher breeds are supported by various types 
of supplemental water including agricultural and urban run-off, treated 
water outflow, irrigation or diversion ditches, reservoirs, and dam 
outflows. Although the water provided to these habitats might be 
considered ``artificial'', they are often essential for maintaining the 
habitat in a suitable condition for breeding flycatchers. However, 
reliance on such water sources for riparian vegetation persistence may 
be problematic because the availability (in quantity, timing, and 
quality) is often subject to dramatic changes based on human use 
patterns; there is little guarantee that the water will be available 
over the long-term.''
    Our PCEs focused on the culmination of factors such as floodplain 
shape, soils, water, and groundwater elevation that resulted in 
vegetation and insects appropriate for southwestern willow flycatchers 
when they are breeding (flycatchers that are documented attempting to 
nest; breeding flycatchers are always territorial flycatchers), 
migrating (flycatchers traveling north to breeding grounds and south to 
wintering grounds), dispersing (young-of-the-year and adult flycatchers 
typically following nesting and prior to migration), territorial 
(flycatchers during the breeding season that defend a territory; 
territorial flycatchers often nest, however un-paired territorial birds 
may not), and non-breeding (flycatchers during a portion of or for the 
entire nesting season that do not defend a territory or attempt to 
nest; these birds can also be referred to as floaters). Anthropogenic 
(i.e., man-made) factors can, if conditions are right, mimic some of 
those factors and help support southwestern willow flycatcher habitat. 
Also, these same types of activities, depending on the degree, 
location, and extent of their influence, can degrade southwestern 
willow flycatcher habitat. For example, dam operations can cause water 
to spread out over a wider area more consistently than there would be 
without the dam, potentially causing the development of riparian 
habitat over a large area. However, depending on how that dam is 
operated, flycatcher habitat may or may not be able to develop due to 
the amount and length of time water covers the floodplain/lake bottom. 
Additionally, some dams divert water from a river such that water 
rarely returns to the river channel, thereby removing the opportunities 
for habitat to develop below the dam.
    Our description of riparian developed areas in the lateral extent 
section refers to infrastructures that do not grow riparian vegetation 
such as agricultural fields, roads, houses, landscaped areas 
surrounding houses, cement pads, bridge footings, bases of utility 
structures, and existing gravel pits.
    Overall, we recognize the value of situations where man-made 
activities augment, maintain, enhance, or develop southwestern willow 
flycatcher habitat. We also recognize the potential difficulties that 
may arise with respect to a landowner's desire to change practices that 
could result in incidental take of flycatchers (regardless of a 
critical habitat designation). In these instances, we seek to work with 
landowners and/or agencies to provide Endangered Species Act coverage 
through section 7 consultations, a Safe Harbor Agreement, or Habitat 
Conservation Plan to ensure conservation of the flycatcher and to

[[Page 60890]]

provide regulatory authorization and unburden a landowner.

Comments Related to Previous Federal Actions, the Act, and Implementing 
Regulations

    (11) Comment: Many commented that our discussion concerning the 
value of designating critical habitat, and the procedural and resource 
difficulties involved should be addressed in a different forum, not in 
a critical habitat rule.
    Our Response: As discussed in the sections ``Designation of 
Critical Habitat Provides Little Additional Protection to Species,'' 
``Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act,'' and ``Procedural and Resource Difficulties in 
Designating Critical Habitat'' and other sections of this and other 
critical habitat designations, we believe that, in most cases, other 
conservation mechanisms provide greater incentives and conservation 
benefits than does the designation of critical habitat. These other 
mechanisms include the section 4 recovery planning process, section 6 
funding to the States, section 7 consultations, the section 9 
protective prohibitions of unauthorized take, the section 10 incidental 
take permit process, and cooperative programs with private and public 
landholders and tribal nations.
    (12) Comment: Many commenters identified particular areas that they 
believed should not be designated because critical habitat will 
unnecessarily burden the regulated public and will overload Service 
staff with implementation of the designation. Specifically, many 
private landowners with agricultural fields, water diversions, and 
cattle ranches throughout the bird's range commented that this 
designation would cause them harm economically and delay projects 
through the regulatory process.
    Our Response: Pursuant to the Act, we are statutorily required to 
designate critical habitat for a federally listed species if it is 
determined to be both prudent and determinable. We have previously made 
a determination that critical habitat was both prudent and determinable 
in our previous designation for this species (62 FR 39129, July 22, 
1997). We further note that we are under court order to re-designate 
critical habitat for the southwestern willow flycatcher (please refer 
to our proposed rule (69 FR 60706, October 12, 2004) under Previous 
Federal Action for a discussion of the litigation history concerning 
this designation). Critical habitat designations do not constitute or 
create a regulatory burden, by themselves, in terms of Federal laws and 
regulations on private landowners carrying out private activities, but 
in certain areas they may trigger additional State regulatory reviews 
and other requirements. For example, actions occurring in critical 
habitat in California may be subject to additional regulatory reviews 
under the California Environmental Quality Act and other State laws and 
regulations. When a private action requires Federal approval, permit, 
or is federally funded, the critical habitat designation may impose a 
Federal regulatory burden for private landowners; absent Federal 
approval, permits, or funding, the designation should not affect 
farming and ranching activities on private lands. Similarly, a Federal 
nexus could result in the designation affecting future land use plans, 
and the designation may trigger State requirements which could impact 
such plans. However, we note that lands included in this proposal are 
waterways with limited development (housing or commercial structures) 
potential. As explained in this rule, we are required to and have 
developed an economic analysis of the effects of this designation 
pursuant to section 4(b)(2) of the Act which considers the issues 
raised by the commenters.
    (13) Comment: Some commented that designation of critical habitat 
for the southwestern willow flycatcher conflicts with management of 
native fish (Lake Mead and Horseshoe Lake), and similarly, that 
critical habitat for the flycatcher is inappropriate because it results 
in single species management.
    Our Response: Management for southwestern willow flycatcher habitat 
and native fish and other riparian/aquatic species should largely be 
compatible. A large number of riparian species are listed as threatened 
or endangered, species that naturally inhabit the riparian and/or 
aquatic habitats to which the flycatcher is also tied (USFWS 2002: 55-
60). This underscores that southwestern riparian and aquatic habitats, 
while supporting disproportionately high levels of biodiversity, have 
also been degraded at a landscape level. The presence of so many listed 
species within this broad ecosystem does not mean that difficult 
decisions must be made of managing for one listed species rather than, 
or at the expense of, another. Rather this situation illustrates that 
if riparian and aquatic ecosystems are improved to a more natural, 
heterogeneous conditions (recognizing that restoring rivers to 
completely wild conditions is not possible), many imperiled species 
will benefit.
    We do recognize however that there may be some specific instances 
where situations such as water storage could result in conflicts in 
somewhat artificial environments such as lakes for the flycatcher and 
listed fish. However, these instances throughout the flycatcher's range 
and this designation, we believe, are few and far between, and are site 
specific. The two locations brought up in comments, Lake Mead and 
Horseshoe Lake, are being excluded from this final rule pursuant to 
section 4(b)(2) of the Act.
    (14) Comment: Some comments pointed out that our critical habitat 
proposal was significantly different in the amount and location of 
areas identified in our 1997 designation, and there was no discussion 
or analysis of the difference.
    Our Response: As the comment points out, some areas designated as 
critical habitat in 1997 were not proposed for designation in this 
proposal, some of the same areas were proposed, and new areas were 
proposed. Our draft NEPA document described the specific streams that 
changed between the two proposals. Our specific methodology used to 
identify areas proposed as critical habitat provided our approach to 
critical habitat in contrast to the previous designation (which had no 
specific methodology). The science provided in the Recovery Plan (USFWS 
2002) and our improved knowledge of the distribution and abundance of 
territories, use of river corridors for migration, year-to-year 
movements, and habitat use within territories helped guide our approach 
and provided support for the segments proposed. Therefore, it was 
largely our improved knowledge of the flycatcher and its habitat that 
provided the difference in areas proposed in 2004 compared to those in 
1997.
    (15) Comment: Some stated that our comment periods for the proposed 
rule, NEPA document, and economic analysis were inadequate to allow the 
public to understand and comment meaningfully on the proposed rule and 
should be extended.
    Our Response: The proposed critical habitat rule for the 
southwestern willow flycatcher was available to the public for review 
and comment from October 12, 2004, to May 31, 2005, and for an 
additional 11 days from July 7 to July 18, 2005. The comment periods 
for the economic analysis and NEPA document extended from April 28, 
2005, to May 31, 2005, plus the additional 11-day period in July. 
Therefore, there was an open comment period for 43 days for the draft 
economic analysis and NEPA documents, plus there was a total of just

[[Page 60891]]

over 70 days where the public was able to examine these documents. We 
believe these two public comment periods of over 8 months for the 
proposal, and 43 days (but over 70 days to review) for the NEPA and 
economic analysis, provided adequate opportunity for public comment. In 
addition, due to the large scope of this rule and in order to comply 
with our September 30, 2005, court ordered date for completion of the 
final rule it would not have been possible to extend the comment period 
beyond July 18, 2005.
    (16) Comment: One commenter stated that the Service did not 
adequately notify landowners where proposed critical habitat was 
located. Another commenter expressed concern that the quality of the 
maps was poor and therefore, made it difficult for the public to 
adequately comment on the proposed revisions.
    Our Response: Due to the large scope of the proposed designation it 
was not possible to contact each landowner. However, we issued a widely 
disseminated news release regarding our proposal and published legal 
notices in major newspapers in areas involved in the proposal. We 
published numerous Federal Register notices including a notice of 
intent to conduct scoping for critical habitat, the critical habitat 
proposal, comment period extensions, notice of availability of draft 
documents, notices of scoping meetings and hearings. We sent out 
thousands of letters and cards to State and Federal government 
agencies, private individuals and groups, elected officials, and tribal 
governments also announcing the proposal, document availability, and 
public meetings/hearings. We also developed and sent out press releases 
concurrent with Federal Register notice announcements. A web page of 
southwestern willow flycatcher critical habitat materials was 
maintained at Arizona Ecological Services Web Site http://www.fws.gov/arizonaes. Public meetings, open houses and/or hearings on the 
published proposal were held in the following locations: February 17, 
2005--Camp Verde, AZ (sponsored by Verde Watershed Association); May 2, 
2005, Escondido, CA; May 3, 2005, Chino, CA; May 9, 2005, Las Vegas, 
NV; May 10, 2005, Lake Isabella, CA; May 16, 2005, Mesa, AZ; May 17, 
2005, Silver City, NM; May 18, 2005, Albuquerque, NM; May 19, 2005, 
Alamosa, CO; May 24, 2005--Bishop, CA (sponsored by Los Angeles Water 
and Power Authority); July 7, 2005--Safford, AZ (sponsored by Graham 
County). NEPA scoping meetings were held at Escondido, Chino, and Lake 
Isabella, CA; Phoenix, AZ; Las Vegas, NV; Silver City and Albuquerque, 
NM, and Alamosa, CO in early 2004.
    Maps delineating the boundaries of critical habitat were included 
in the October 12, 2004, proposed rule, and posted at http://criticalhabitat.fws.gov were specific GIS layers of the proposed 
critical habitat. In the proposed rule we provided contact information 
for eight Service Field Offices for anyone seeking assistance with the 
proposed critical habitat. Therefore, we believe that we made every 
effort possible to reach all interested parties and provide avenues for 
them to obtain information concerning our proposal and supporting 
documents.
    (17) Comment: One commenter stated that local land use controls 
provide sufficient protection for the southwestern willow flycatcher.
    Our Response: Although there are other State, local, and Federal 
laws that offer some protection to endangered species and their 
habitats (e.g., Clean Water Act and California Environmental Quality 
Act), none provide the same level of protection and review for 
threatened and endangered species as does the Act. These laws are not 
redundant and work in concert to provide protection for environmental 
resources.
    (18) Comment: Some comments expressed that the Service failed to 
identify special management considerations related to a variety of 
lands across the subspecies range.
    Our Response: In our proposed designation of critical habitat for 
the southwestern willow flycatcher that published on October 12, 2004 
(69 FR 60706), we identified special management considerations shared 
by all stream segments proposed for southwestern willow flycatcher 
critical habitat. We cited threats such as loss and modification of 
habitat due to industrial, agricultural, and urban developments, and 
directed the reader to locations where the threats are described in 
great detail in the final listing rule (60 FR 10694, February 27, 
1995), the previous critical habitat designation (62 FR 39129, July 22, 
1997), and the final recovery plan (USFWS 2002). We note there are 
complete appendices included in the Recovery Plan (USFWS: Appendices A-
O) that elaborate on rangewide southwestern willow flycatcher 
management issues focusing on water management, livestock grazing, 
recreation, cowbird parasitism, habitat restoration, exotic plants, 
fire management, recreation, etc.
    (19) Comment: One comment asked whether on-going activities, such 
as routine inspections, road grading, and construction adjacent to 
designated critical habitat are considered to appreciably decrease 
habitat values or quality through indirect effects.
    Our Response: The effects of any such activities on critical 
habitat must be considered by the Federal agency planning to conduct 
such activities. The action agency determines whether their action(s) 
``may affect'' the southwestern willow flycatcher or its primary 
constituent elements within the adjacent critical habitat based on 
their analyses. If so, the action agency would enter into consultation 
with us under section 7. We do not anticipate that grading existing 
roads or inspection of existing developed areas would likely result in 
an effect to critical habitat. Construction, depending on the type of 
activity, could have adverse effects, especially if it indirectly 
resulted in impacts to habitat such as groundwater pumping, channel 
manipulation, habitat trampling, etc.
    (20) Comment: Several comments expressed concern that commercial 
activities, such as mining, mineral prospecting, agriculture, etc. 
would be prohibited or severely restricted by a designation of critical 
habitat.
    Our Response: Section 7(a)(2) of the Act requires Federal agencies 
to ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or 
result in the destruction or adverse modification of critical habitat. 
If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Through this consultation, the action agency 
ensures that their actions do not destroy or adversely modify critical 
habitat. Section 7 of the Act does not apply to activities on private 
or other non-Federal lands that do not involve a Federal nexus, and 
critical habitat designation would not provide any additional 
protections under the Act for private or non-Federal activities. 
Critical habitat does not prohibit private or commercial activities 
from occurring. However, all parties, Federal, State, private, and 
tribal are unable to take (e.g., harm, harass, pursue) listed species 
under section 9 without the appropriate permit.
    (21) Comment: Some comments suggested that the designation of 
critical habitat would prohibit mosquito abatement programs.
    Our Response: The Service does not believe that mosquito abatement 
programs focused in communities and developed areas necessarily pose a 
risk to southwestern willow flycatchers. We

[[Page 60892]]

encourage cooperation and coordination from those applying chemicals to 
riparian areas in and around river water due to possible concerns 
regarding southwestern willow flycatchers, other wildlife dependent on 
insect populations, and water quality. We believe there are 
applications of mosquito abatement in riparian areas that could be 
compatible with southwestern willow flycatchers and reduce risk to 
other wildlife and people. For example, application of larvicide is 
typically most effective, target specific, and provides the least risk 
to non-target species (CDC 2003).

Comments Related to Critical Habitat, Primary Constituent Elements, and 
Methodology

    (22) Comment: Some questioned the scientific evidence used to 
determine critical habitat, one describing it as junk science.
    Our Response: In designating critical habitat for the southwestern 
willow flycatcher, we have used the best available scientific and 
commercial information, including results of numerous surveys, peer-
reviewed literature, unpublished reports by scientists and biological 
consultants, habitat models (Hatten and Paradzick 2003; Dockens and 
Paradzick 2004), a stakeholder-driven Recovery Plan (USFWS 2002), and 
expert opinion from biologists with extensive experience studying the 
southwestern willow flycatcher and its habitat. Further, information 
provided in comments on the proposed designation and the draft economic 
analysis were evaluated and taken into consideration in the development 
of this final designation, as appropriate. The literature cited for 
this rule is posted at http://www.fws.gov/arizonaes/. Also, the 
proposed rule has undergone peer review, and those comments are 
included above.
    (23) Comment: One commenter remarked that the information developed 
for the 29 km (18 mi) radius is inappropriate because it was site 
specific and is only a by-product of the study area.
    Our Response: We disagree and note the support for this radius 
provided by peer reviewers in comment number 6. In the instance of the 
work conducted by U.S. Geological Survey (USGS) that provided the 
information on natural movements of southwestern willow flycatchers, we 
are familiar with no other study that has occurred for as many years 
(since 1997), over as large an area, and has trapped, banded, and re-
sighted as many birds. The primary study area occurs along lower Tonto 
Creek, Roosevelt Lake, the Salt River immediately above Roosevelt Lake, 
the lower San Pedro River (encompassing an area from approximately 
Bingham Cienaga to Winkelman), and the Gila River from Dripping Springs 
Wash downstream past Kearny. However, the ability to detect banded 
flycatchers extends beyond this general study area to AZ, and to a 
lesser extent, across the entire bird's range.
    Banding and re-sighting of birds by the USGS occurs primarily in 
conjunction with crews from Arizona Game and Fish Department. In some 
years, approximately 40 or more people are directly participating in 
this effort. In past years, the USGS has traveled to locations across 
AZ, such as Camp Verde; the Gila River near Safford; and Greer to trap, 
band, and/or re-locate banded southwestern willow flycatchers, and has 
traveled throughout the subspecies range to trap, band, collect genetic 
material, and possibly detect previously banded birds.
    The primary study area encompasses a variety of habitats and 
conditions and locations over a large area. The habitat varies from 
free-flowing Tonto Creek and Salt River, to the regulated conservation 
space of Roosevelt Lake, to the regulated Gila River below Coolidge 
Dam, and the free-flowing San Pedro River. The work encompassed within-
drainage and between-drainage movements. We believe these are diverse 
locations providing diverse habitats over a wide ranging study area. 
This large study area did not place artificial geographic limits on 
potential re-sightings of banded southwestern willow flycatchers.
    A portion of each southwestern willow flycatcher recovery permit, 
issued by the Service for surveying in Region 2, identifies the 
importance of banded birds and the reporting requirements if one is 
detected. The USGS is able to respond to these reports to try and 
confirm these sightings. Also in support of this effort, the importance 
of documenting banded flycatchers is a section of each survey training 
session that every permitted surveyor attends. Therefore, the area and 
effort to determine the movements of flycatchers extends beyond the 
primary Roosevelt/San Pedro/Gila River area, to all survey sites across 
AZ, and to a lesser extent, across the bird's range. The USGS is also 
in contact with scientists studying flycatchers across their range, 
such as SWCA, Inc. and the Bureau of Reclamation along the lower 
Colorado River, and ongoing research on the Kern River, CA. 
Additionally, band recoveries are reported to the USGS Bird Banding Lab 
and reported back to the scientists.
    We understand that the selection of a study area could limit the 
extent of data collected, but in this case, we do not believe it 
hampered our ability to make an appropriate conclusion on southwestern 
willow flycatcher movements to determine high connectivity between 
distant sites. The frequency (267 of 292) of band recoveries within 29 
km (18 mi) radius; the approximate 150 km/93 mi distance between the 
limits of intensive monitoring (Tonto Creek inflow to Roosevelt Lake to 
Bingham Cienega on San Pedro River); the training, survey effort, and 
band recovery opportunities statewide and rangewide; and range of 
flycatcher movements recorded (0 km/mi to 440 km/276 mi) leads us to 
conclude that our application of the data collected was appropriate.
    (24) Comment: One commented that the critical habitat designation 
is not consistent with the Recovery Plan's definition of occupied 
habitat.
    Our Response: The Recovery Plan and survey protocols established 
for southwestern willow flycatchers define or describe the 
determination of an occupied nesting territory, but do not address, nor 
were intended to address, the amount or extent of area used by 
southwestern willow flycatchers for life-history needs, its home range, 
migration stopover areas, or how to delineate critical habitat. We note 
the Recovery Plan's (USFWS 2002: 16) conclusion that ``nesting habitat 
is only a small portion of the larger landscape that needs to be 
considered when developing management plans, recovery actions, 
biological assessments for section 7 consultations with the USFWS, or 
other documents defining management areas or goals for flycatcher 
recovery.'' The critical habitat designation follows this guidance.
    (25) Comment: One individual commented that critical habitat should 
be designated and recovery should be conducted on a patch-by-patch 
basis.
    Our Response: Flycatcher habitat is ephemeral and its mosaic-like 
distribution is dynamic in nature, because riparian vegetation is prone 
to periodic disturbance (i.e., flooding) (USFWS 2002:17). Therefore, it 
is not realistic to assume that any breeding habitat patch will remain 
suitable over the long-term, or persist in the same location (USFWS 
2002:17). Designation at the patch level is technologically unfeasible 
because comprehensive mapping of flycatcher habitat at the patch level 
does not exist.
    Cardinal and Paxton (2005) described the extent of area or home 
range used by pre-breeding, breeding, and post-nesting southwestern 
willow flycatchers

[[Page 60893]]

and dispersing young-of-the-year southwestern willow flycatchers, and 
discovered flycatchers using a variety of habitats extending beyond the 
area where a nest is placed for foraging, territory establishment, mate 
discovery, and staging for migration. Koronkiewicz et al. (2004) and 
McLeod et al. (2005) described the use of the entire length of the 
lower Colorado River and its tributaries by willow flycatchers during 
migration. Also, southwestern willow flycatchers exhibit general site 
fidelity, rather than specific nest fidelity, largely in response to 
its dynamic habitat (USFWS 2002: 22). Breeding southwestern willow 
flycatchers typically move from one season to the next, regularly up to 
29 km (18 mi). A few birds have been detected at greater than 400 km 
(248 miles) from a previous year's breeding location (E. Paxton, USGS, 
e-mail).
    (26) Comment: Many commented that areas identified in the Recovery 
Plan for recovery should be designated as critical habitat, 
specifically river segments not proposed in the Hassayampa/Agua Fria, 
Amaragosa, Santa Cruz, San Francisco, lower Rio Grande, Powell, San 
Juan, and Santa Clara Management Units.
    Our Response: Recovery plans are not regulatory documents, and as a 
result, there are no specific protections, prohibitions, or 
requirements afforded a species based solely on a recovery plan. 
Critical habitat contributes to the overall recovery strategy for 
listed species, but does not by itself achieve recovery plan goals. The 
Act states, at section 3(5)(c), that except in particular circumstances 
determined by the Secretary, critical habitat shall not include the 
entire geographical area which can be occupied by the threatened or 
endangered species. It is not the intent of the Act to designate 
critical habitat for every population and every documented historical 
location of a species. We have designated habitat that contain features 
essential for the conservation of the species.
    While proposed critical habitat for the southwestern willow 
flycatcher does not mirror the exact goals identified in the Recovery 
Plan, it does reflect the concepts of conservation biology used by the 
Recovery Team (USFWS 2002: 74-77). Specifically, our methodology 
targeted large populations and small populations that exist in high 
connectivity which equaled a large population (USFWS 2002: 74-75). This 
approach was chosen by the Team because large populations contribute 
the most to metapopulation stability and those smaller sites arranged 
in high connectivity may provide as much or more stability (USFWS 2002: 
74-75). This choice subsequently supports important conservation 
principles: (1) Populations should be distributed close to each other 
to allow for movement, and (2) those populations should provide for 
stable metapopulations, gene flow, connectivity, and protection against 
catastrophic losses. As a result, across 6 southwestern states, our 
proposal included river segments in 21 of the 29 Management Units with 
numerical conservation goals.
    (27) Comment: Some commenters recommended that all areas occupied 
by the southwestern willow flycatcher be designated as critical habitat 
and more unoccupied areas should be designated.
    Our Response: Section 3(5)(c) of the Act states that not all areas 
that can be occupied by a species should be designated as critical 
habitat unless the Secretary determines that all such areas are 
essential to the conservation of the species. Our regulations (50 CFR 
424.12(e)) also state that, ``The Secretary shall designate as critical 
habitat areas outside the geographic area occupied by the species only 
when a designation limited to its present range would be inadequate to 
ensure the conservation of the species.'' In this instance, we have 
determined that all areas that can be occupied or are presently within 
the geographical area of the southwestern willow flycatcher are not 
essential for conservation of the bird.
    (28) Comment: Some comments stated that our PCEs are too narrow in 
scope and omit important features such as water or moist soils.
    Our Response: Our PCEs specifically refer to the following: (1) 
Riparian plant species needed for breeding, foraging, and shelter for 
breeding, non-breeding, territorial, migrating, and dispersing 
flycatchers, (2) the variety of structural vegetation features targeted 
for nest placement, (3) the range of more generalized riparian habitat 
used for migrating, foraging, dispersing, and non-breeding southwestern 
willow flycatchers; and (4) their food requirements. River hydrology 
and geomorphology, groundwater, surface water, channel-floodplain 
connectivity, overbank flooding, hydrologic regime, fine sediments, 
moist soils, micro-climate, and other processes such as erosion, 
precipitation, drought, humidity, etc. are important for the presence, 
development, location, abundance, growth, regeneration, suitability, 
and maintenance of the vegetation and insects identified as the PCEs. 
We described in great detail the setting and function of these 
components and their role in supporting southwestern willow flycatcher 
habitat in the proposal (69 FR 60712-60715).
    (29) Comment: Several comments stated that we included areas where 
the southwestern willow flycatcher and their PCEs were absent, such as 
roads, developed areas, agricultural fields, bridges, or where the 
bird's status is uncertain. Some requested that we examine the segments 
more closely, particularly in Graham County, AZ, and more finely remove 
areas that do not contain PCEs. Others recommended that we also exclude 
right-of-way corridors adjacent to bridges or transmission lines.
    Our Response: In the development of this final rule, we have 
reviewed lands included in our proposal and have revised and removed 
areas from critical habitat that we could determine did not contain 
features essential to the conservation of the species or in some cases 
entire river segments (see Summary of Changes section below). For 
example, we received GIS layers and aerial photos where we could 
identify, confirm, and subsequently eliminate portions of agricultural 
fields in the Verde Valley, AZ, that fell within the designation; we 
removed Pinto Creek and the South Fork of the Little Colorado River in 
AZ; and we shortened the Big Sandy River segment in AZ, etc. We made an 
effort to exclude all developed areas, such as towns, housing 
developments, and other lands not reasonably believed to contain 
features essential to the conservation of the southwestern willow 
flycatcher.
    However, due to the limitations in technology, it is not possible 
to remove each and every one of these developed areas. Nor does the 
Service have the ability to ground truth and confirm each recommended 
developed area for removal. As a result, even at the refined mapping 
scale, the maps of the final designation may still include developed 
areas that do not contain primary constituent elements (see Criteria 
Used to Identify Critical Habitat section). Areas that do not contain 
the PCEs within the boundaries of critical habitat are not considered 
to be critical habitat and thus, actions in those areas would not 
trigger consultation unless they affected adjacent critical habitat.
    With regard to the request that all right-of-ways be removed from 
critical habitat, we are familiar with flycatcher habitat within right-
of-ways adjacent to bridges or underneath transmission lines; 
therefore, those locations would have the PCEs.
    (30A) Comment: We received numerous comments that the designation 
of critical habitat for the southwestern willow flycatcher would 
prevent the restoration of native habitat for the southwestern willow 
flycatcher-

[[Page 60894]]

specifically, the conversion of exotic saltcedar/tamarisk to native 
cottonwood-willow habitat.
    Our Response: Our 4(b)(8) determination in this final rule, and the 
approach provided in the Recovery Plan (USFWS 2002: Appendix H and K), 
supports site-specific restoration of habitat from exotic habitat to 
native vegetation (or possibly mixed native/exotic) of equal or better 
quality for the flycatcher. The approach provided in the Recovery Plan 
was designed to apply to general riparian restoration in addition to 
those efforts specifically for the southwestern willow flycatcher. 
While these efforts may require section 7 consultation due to temporary 
adverse effects to flycatchers and their habitat, we do not believe 
that a project would result in adverse modification if the results of 
site-specific analysis and restoration culminate in equal or better 
habitat quality for the flycatcher.
    (30B) Comment: Those supportive of the use of biocontrol 
(introduction of nonnative insects) to degrade or kill tamarisk (an 
exotic plant species used by flycatchers for nesting, foraging, etc.) 
through leaf consumption expressed: (1) Opposition to designation of 
flycatcher critical habitat in general; (2) disapproval of the approach 
to biocontrol that is discussed in the final Recovery Plan for the 
flycatcher; (3) asserted that tamarisk does not provide suitable 
nesting habitat (i.e., is inadequate) for flycatchers and other 
wildlife; and (4) that by removing tamarisk, it will reduce the amount 
of water consumed by tamarisk through evapo-transpiration from those 
drainages, which will in turn, increase the amount of water in the 
river.
    Our Response: As indicated above in our response to comment number 
30, the Recovery Plan (USFWS 2002: Appendix H and K), supports site-
specific restoration of exotic habitat to native vegetation (or 
possibly mixed native/exotic) of equal or better quality for the 
flycatcher. The Recovery Plan (USFWS 2002: Appendix H and K) provides 
guidance to determine the cause for exotic plant proliferation, long-
term ecosystem solutions, measures to determine the success of 
restoration activities, and restoration strategies. Absent any new 
information on biocontrol, we continue to support the concern related 
to the use of biocontrols and guidance provided in the Recovery Plan 
regarding introduction of biocontrol into the breeding range of the 
flycatcher (USFWS 2002:121).
    (31) Comment: We received comments that our approach in targeting 
occupied segments does not allow for the growth of southwestern willow 
flycatcher populations.
    Our Response: We disagree and believe our approach in targeting 
river segments with large populations and collections of small sites in 
high connectivity that equal a large population provides for the growth 
of populations within designated critical habitat and outside of 
critical habitat. The focus on protection of large sites with the 
ability to produce dispersers was a conservation strategy of the 
Recovery Team (USFWS 2002:75). The Recovery Team (USFWS 2002:75) 
described that ``maintaining and augmenting existing breeding 
populations is a faster, easier, and more reliable way to maintain and 
achieve population goals * * *.'' ``Thus, maintenance and protection of 
existing populations is a priority.'' Existing sites have the 
opportunity to grow and produce dispersers to develop nesting areas 
within designated critical habitat segments, or disperse to pioneer 
sites outside of designated critical habitat. Because all potential or 
existing flycatcher habitat is not designated as critical habitat, this 
does not imply that non-designated areas are not important for 
southwestern willow flycatcher conservation.
    (32) Comment: Some commented that our departure from our 
methodology in the Coastal CA Recovery Unit, specifically in the Santa 
Ana Management Unit, was arbitrary and capricious.
    Our Response: We disagree and believe we described why we departed 
from our methodology, how we arrived at the proposed river segments, 
and the goals of this approach. We described in our proposal (69 FR 
60716) that due to the wide diversity and conditions of habitat across 
the bird's range and complexity of the flycatcher's habitat needs, we 
believed it was necessary to consider other factors in the Coastal CA 
Recovery Unit. Because of the fractured and limited nature of habitat 
in Coastal CA Recovery Unit and due to nearly all sites being in high 
connectivity, we did not believe that every river segment was 
essential. As a result, we relied on the Recovery Plan recommendations, 
conservation goals, flycatcher habitat needs, and expert opinion to 
generate appropriate critical habitat segments. We sought to provide 
locations that would generate metapopulation stability by selecting the 
drainages with the largest amount of territories (Santa Ana, Santa 
Margarita, San Luis Rey, and Santa Ynez rivers) and nearby adjacent 
stream segments to allow for population connectivity, metapopulation 
stability, growth, dynamic river processes, and protection against 
catastrophic losses. We identified that there were some locations that 
held territories that were located within our 29 km (18 mi) radius that 
we did not select, because when considered within the entire range of 
habitats and stream segments selected, these were not believed to be 
essential.
    (33) Comment: One comment asserted that the proposed rule did not 
support the concept that small sites are important.
    Our Response: A metapopulation, as defined for the flycatcher, is a 
group of spatially disjunct local southwestern willow flycatcher 
populations connected to each other by immigration and emigration 
(USFWS 2002:72). Results of the status of the southwestern willow 
flycatcher population persistence or metapopulation stability vary 
geographically (Lamberson et al. 2000). Metapopulations are most stable 
where many connected sites and/or large populations exist (USFWS 
2002:72). Many connected sites would include ``small'' sites, or those 
with few territories, but are closely connected with other ``small'' 
sites. The Coastal CA, Gila, and Rio Grande Recovery Units were the 
most stable, because of the abundance and proximity of breeding sites 
(USFWS 2002:72). This critical habitat designation focused on those 
areas with large populations or small sites in close proximity to each 
other that equaled a large population. While our target was on large 
populations or collections of smaller sites in close proximity, we 
emphasize that any southwestern willow flycatcher breeding site is 
important due to the bird's endangered status and the need to improve 
metapopulation stability, gene flow, and protect against catastrophic 
losses throughout the bird's range.
    (34) Comment: Some commented that maps and legal descriptions fail 
to indicate the width of critical habitat. On the same topic, others 
wrote that because we described that critical habitat would be dynamic 
due to river flow, the boundary would also change, and using the 
floodplain boundary is inappropriate because the floodplain itself is 
constantly changing and difficult to define.
    Our Response: The lateral extent of critical habitat, contrary to 
these comments, is a defined boundary. Southwestern willow flycatcher 
habitat is expected to be dynamic ``within'' the defined lateral extent 
boundaries. In our proposal, we provided a web site with a link to the 
specific boundaries and widths of proposed critical habitat. For the 
final rule, the same web site can be accessed with the specific 
information. The web address is http://

[[Page 60895]]

criticalhabitat.fws.gov. We also published legal descriptions in the 
proposed rule and this final rule identifying the lateral extent of 
critical habitat.
    (35) Comment: Some commented that the lateral extent of critical 
habitat is too broad. One wrote that the Service may need to establish 
a corridor, but it need not be this broad. To simply say that because 
the river may wander it should encompass the entire alluvial plain is 
simply overreaching.
    Our Response: We used the best available technology (existing 
digital sources and expert visual interpretation of aerial photographs 
and satellite imagery) to map the riparian zone within river corridors 
in proposed areas across six States. In developing the lateral extent, 
we found that using existing data sources such as the 100-year 
floodplain was in some places, too wide. However, in other areas, the 
entire 100-year floodplain was appropriate because it encompassed 
available flycatcher habitat. However, throughout the entire 
designation, the lateral extent is constrained to areas either equal to 
or less than the 100-year floodplain. Our visual interpretation 
examined the boundaries of actual riparian vegetation growth in order 
to ensure accuracy. Therefore, these locations are the areas where 
rivers flow and sandy soils exist and riparian vegetation grows. We do 
not extend our boundaries into traditionally developed areas 
(commercial and housing) outside of the 100-year floodplain.
    (36) Comment: Some commented that we inappropriately omitted 
important plant species used by southwestern willow flycatchers under 
primary constituent element number 1.
    Our Response: In order to not be redundant, we provided great 
detail in the text supporting the PCEs and the known plant species used 
by nesting southwestern willow flycatchers (69 FR 60714) by citing the 
Recovery Plan (USFWS 2002: D-3, 5, and 9). In response to this comment, 
we have altered the language of this PCE to include those known 
riparian plant species important for southwestern willow flycatchers.
    (37) Comment: Comments were provided using the results of Arizona 
Game and Fish Department's Mapping and Monitoring Southwestern Willow 
Flycatcher Breeding Habitat in Arizona: A Remote Sensing Approach 
(Dockens and Paradzick 2004) to demonstrate that river segments were 
not occupied by the flycatcher and segments did not have the PCEs.
    Our Response: We reviewed and considered this model, but did not 
rely solely on it in the development of our proposed designation due to 
the limitations of the results that the authors of the model described 
in their report. They described, ``this model provides a snapshot in 
time of predicted suitable (nesting) habitat * * * reoccurring 
disturbances influence the distribution and abundance of SWWF 
(southwestern willow flycatcher) breeding habitat in any one year.'' 
Therefore, the results of this model do not account for the dynamics of 
habitat over time. The authors also described other limitations in the 
use of the results of their model as a conservation tool. They wrote, 
``The model only predicts suitable nesting habitat and does not predict 
all habitat used by nesting SWWF. Nesting habitat is one part of a 
larger matrix of habitat used by SWWF during the migration and breeding 
season.''
    (38) Comment: Some provided comment that we should not designate 
critical habitat in Elephant Butte Reservoir on the Rio Grande in NM 
for a variety of reasons. Additionally, some commented that the power 
lines were an inadequate boundary for the southern boundary of the 
middle Rio Grande segment, because it may not be a permanent location.
    Our Response: The conservation space of Elephant Butte Reservoir 
was not part of the proposal, and therefore, is not included in the 
critical habitat designation. The description of the southern boundary 
of the Middle Rio Grande segment as the power line crossing upstream of 
Elephant Butte Reservoir is to provide readers with an easily 
identifiable reference point. The mapping of critical habitat 
boundaries is permanent with legal descriptions for the boundaries, and 
mapped boundaries are found in GIS layers at http://criticalhabitat.fws.gov.
    (39) Comment: Some commented that our proposal included segments of 
tributaries and washes not described in the text, specifically areas 
along the upper Rio Grande, Verde River, and San Pedro River.
    Our Response: We agree. There were short stream segments of 
adjacent side drainages described in the legal descriptions and in the 
maps that were not described in the text of the proposal. We have re-
examined the proposed segments and removed these short side drainages 
(creek, rivers, washes, etc.) that were not described in the text that 
extend beyond the stream segments proposed. We note that at the 
confluence of a tributary and main stem it is difficult to 
differentiate between habitats, therefore, we used our best judgment on 
where to specifically draw the line.
    (40) Comment: Some commented that because numerical recovery goals 
were reached in the San Luis Valley Management Unit and the Santa Ana 
Management Unit, that critical habitat should not be designated within 
these areas.
    Our Response: Our methodology for critical habitat specifically 
targeted the locations where large populations or small populations in 
high connectivity that equaled a large population exist. This, we 
believe, adheres to the principles of conservation biology described by 
the Recovery Team (USFWS 2002: 74-77). The Recovery Team (USFWS 2002: 
75) described that ``maintaining and augmenting existing breeding 
populations is a faster, easier, and more reliable way to maintain and 
achieve population goals. * * *'' ``Thus, maintenance and protection of 
existing populations is a priority.''
    The Santa Ana River and Santa Ana Management Unit possess a large 
population of flycatchers, with territories extending along the length 
of the Santa Ana River and along some of its tributaries. We note that 
the numerical goal for the Santa Ana Management Unit is 50 territories, 
and the most recent published information for this Management Unit 
cites 41 territories for 2003 (Durst et al. 2005). Compiled rangewide 
data does not yet exist for 2004. There are additional recovery goals 
associated with Management Units other than number of territories, such 
as maintenance of populations for at least 5 years, completed 
management plans, and habitat objectives not yet achieved (USFWS 2002: 
77-81).
    The San Luis Valley Management Unit, as commenters pointed out, has 
reached its numerical goal, reaching 73 territories in 2003 (Durst et 
al. 2005) and surpassing the goal of 50 territories. But other goals 
have not been met. For example, the population has not been maintained 
for 5 years and habitat objectives have not been reached. Please note 
though, that due to partnerships developed with the Service, we are 
excluding river segments found in the San Luis Valley Management Unit 
(see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions 
Under Section 4(b)(2) of the Act section for a detailed discussion of 
this exclusion below).
    (41) Comment: Many commented that critical habitat should not be 
designated in areas such as the Middle Rio Grande due to the need to 
manage for fire.
    Our Response: It is our belief that the need for fire management, 
especially areas such as the Middle Rio Grande or

[[Page 60896]]

the lower Colorado River, is consistent with the needs of the 
southwestern willow flycatcher, and if done appropriately, is not 
expected to result in adverse modification of critical habitat. The 
Recovery Plan (USFWS 2002: Appendix L) provides a description of 
changes that have lead to increased risk and occurrence of fire in 
riparian areas. It also describes measures to reduce occurrence of fire 
in riparian areas and appropriate management of areas to reduce the 
risk and damage of wildfire to riparian habitat and the southwestern 
willow flycatcher (USFWS 2002: Appendix H, K and L). Therefore, we do 
not believe, if conducted appropriately, that fire management is 
inconsistent with necessary flycatcher management activities.
    (42) Comment: One comment remarked that the C-Spear Ranch along the 
San Pedro River, AZ, is not occupied by southwestern willow 
flycatchers.
    Our Response: The C-Spear Ranch had a southwestern willow 
flycatcher territory detected in 2002 (Smith et al. 2003). 
Additionally, flycatchers are found nesting in close proximity upstream 
and downstream of the Ranch, and as a result, it is reasonably certain 
that, due to the use of riparian areas as migration corridors and 
dispersal areas, that non-breeding southwestern willow flycatchers 
visit the Ranch temporarily. Therefore, the C-Spear Ranch is within the 
geographical area occupied by the species. We refer to our discussion 
of the geographical area occupied by the southwestern willow flycatcher 
below for further explanation.
    (43) Comment: We received many site-specific comments regarding the 
occupancy of stream segment proposed for designation, while others 
provided more general comments on the concept of occupancy. For 
example, some claimed that flycatchers do not occupy a particular 
stretch of the Santa Ynez River, but described that two migrants were 
recorded. Others remarked we improperly designated unoccupied areas, 
claiming that they were occupied. Some commented that our conclusion 
that an area we described as having ``no territories'' should be 
removed because it was not occupied. Others claimed that we determined 
that migration habitat was essential, but was not adequately addressed 
in the proposal. Additionally others indicated that we proposed areas 
not known to be occupied at the time of listing and provided no 
justification.
    Our Response: In this final rule we provide specific language to 
clarify the geographic area occupied by the southwestern willow 
flycatcher (see Geographic Area Occupied by the Species section below) 
(including areas used by breeding, non-breeding, migrating, foraging, 
dispersing, and territorial southwestern willow flycatchers), and also 
describe why specific areas not known to be occupied at the time of 
listing are essential to the conservation of the subspecies (see 
Justification of Including Areas Not Known To Be Within the 
Geographical Area Occupied by the Species at the Time of Listing 
section below). Our methodology further describes how we arrived at 
determining essential and more specific locations to propose and 
subsequently designate as critical habitat.
    (44) Comment: One comment described that flycatcher habitat at 
Roosevelt Lake, AZ, is not essential for the flycatcher because it is 
ephemeral.
    Our Response: We disagree. The southwestern willow flycatcher 
population at Roosevelt Lake, depending on the year, can be the largest 
population of flycatchers across the subspecies' range. In 2004, it 
represented 40 percent (209/522) of all known flycatcher territories in 
AZ (Munzer et al. 2005) and 12 percent of the entire subspecies in the 
most recent 2003 rangewide summary report (Durst et al. 2005). This 
population not only provides territories to reach conservation goals 
for the Roosevelt Management Unit, but provides dispersers to other 
nearby Management Units, helps provide gene flow, populations 
stability, and protection against catastrophic losses. As a result, we 
believe it is a very important location and we made this conclusion in 
a biological opinion for raising Roosevelt Dam and for an HCP for dam 
operations. We described in our proposal (69 FR 60712) with respect to 
all flycatcher habitat that, ``Because riparian vegetation is prone to 
periodic disturbance (e.g., flooding), flycatcher habitat is ephemeral 
and its distribution is dynamic in nature.''
    (45) Comment: The proposed inclusion of reservoir bottoms as 
critical habitat could unnecessarily hinder reservoir operations by 
limiting the timing and magnitude of water elevation changes.
    Our Response: Our 4(b)(8) determination in the proposed rule (69 FR 
60732) describes how certain dam operations, like Roosevelt Dam in 
central AZ, are not likely to destroy or adversely modify critical 
habitat. Roosevelt Dam allows water to significantly increase and 
decrease in the conservation space depending on availability and 
demand. This fluctuation results in the exposure of fine/moist soils in 
the flat/broad floodplain of the exposed ground and has led to the 
development of hundreds of hectares (acres) of flycatcher habitat. The 
same operating regime that creates the habitat will also inundate and 
cause loss of habitat; at this particular location, habitat is expected 
to persist on the perimeter and over time will increase and decrease 
(USFWS 2003). It is this very process of the ebb and flow of the 
conservation pool that ensures persistence of habitat over time, 
although habitat will vary spatially and temporally, as does flycatcher 
habitat in natural settings.
    (46) Comment: We received comment with respect to portions or 
lengths of many stream segments. In particular, we received comments 
about the Big Sandy River, Pinto Creek, and South Fork of Little 
Colorado River, AZ; Upper Gila River (Middle Gila Box), NM; Santa Ana 
River below Seven Oaks Dam, Temecula Creek, Temescal Creek, Santa 
Ysabel River, Mill Creek, and Cuyamaca Lake, CA; and Kern River, CA. We 
also re-evaluated segments that were not included in the comments.
    Our Response: In refinements made to the delineation of critical 
habitat in the development of this final rule, we shortened segments 
(Big Sandy River, Verde River, Bill Williams River, Temecula Creek, 
Santa Ysabel River, Mill Creek, Oak Glen Creek, and Temescal Creek), 
removed segments (South Fork of Little Colorado River, Pinto Creek, San 
Diego River, Yucaipa Creek, Wilson Creek, San Timoteo Wash, Cuyamaca 
Lake, Cristianitos Creek), and removed sections (Middle Gila Box and 
Santa Ana River Wash) of stream segments in response to comments and 
our re-evaluation of these areas because we determined they were not 
essential for the conservation of the flycatcher. These changes are 
also listed in the Summary of Changes section below, and described in 
more detail with justification in the appropriate Unit Description 
section below.

Comments Related to Military Lands

    (47) Comment: One commenter stated that they oppose the designation 
of critical habitat for the southwestern willow flycatcher on Naval 
Weapons Station, Seal Beach, Detachment Fallbrook because of the 
existence of an Integrated Natural Resources Management Plan (INRMP), 
potential complications in conservation efforts with other listed 
species, and adverse impacts on national security.
    Our Response: We have reviewed Detachment Fallbrook's Fire 
Management Plan and INRMP. The

[[Page 60897]]

Secretary determined, in writing, that Detachment Fallbrook's INRMP 
provides a benefit to the southwestern willow flycatcher. Therefore, 
consistent with Public Law 108-136 (Nov. 2003): Nat. Defense 
Authorization Act for FY04 and Section 4(a)(3) of the Act, the 
Department of Defense's Detachment Fallbrook lands are exempt from 
critical habitat based on the adequacy of their completed and approved 
INRMP (see the Application of Section 3(5)(A) and 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act section for a detailed 
discussion of this exemption below).
    (48) Comment: Some commenters recommended that the Service should 
exclude all essential lands on Camp Pendleton, including State lease 
lands because of their Integrated Natural Resource Management Plan 
(INRMP).
    Our Response: We agree with the commenter and have exempted all 
essential areas, including State lease lands, from designated critical 
habitat on Camp Pendleton based on their INRMP (see Application of 
Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the 
Act section for a detailed discussion). Because the INRMP provides an 
overall conservation benefit to the southwestern willow flycatcher, 
these lands are exempt from critical habitat pursuant to section 
4(a)(3).
    (49) Comment: One commenter strongly supported the designation of 
critical habitat for the southwestern willow flycatcher within those 
portions of Camp Pendleton that are leased to the State (San Onofre 
State Beach) because this area is important for southwestern willow 
flycatchers.
    Our Response: We agree with the commenter that this area is 
important for the conservation of the southwestern willow flycatcher. 
However, we have exempted these lands that are leased to the State 
because they are within the area covered by Camp Pendleton's INRMP (see 
the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under 
Section 4(b)(2) of the Act section for a detailed discussion). Because 
the INRMP provides an overall conservation benefit to the southwestern 
willow flycatcher, these lands are exempt from critical habitat 
pursuant to section 4(a)(3).

Comments Related to Tribal Lands

    (50) Comment: A variety of commenters stated that the Service needs 
to work more closely to meaningfully contact the Bureau of Indian 
Affairs and/or Tribes to fully meet the tenet of Executive Order 13175 
and Secretarial Order 3206.
    Our Response: We agree that we need to work closely with Tribes and 
Pueblos potentially impacted by the designation of critical habitat. We 
increased our efforts to work with the Tribes/Pueblos throughout the 
process of developing this rule. Each Tribe possibly affected by this 
rule was contacted when we published our notice of intent to designate 
critical habitat and conduct NEPA. They were also provided with the 
location of scoping meetings we were holding near their area. We later 
contacted all Tribes/Pueblos specifically requesting management plans 
and offering Government-to-Government consultations. We provided two 
newsletters updating this process and contacted each Tribe/Pueblo when 
the proposed rule was published. We provided all Tribes/Pueblos 
included in the draft proposal a Management Plan template. 
Representatives from local field offices in AZ, CA, and NM contacted 
Tribes/Pueblos in person, through telephone calls, and/or during 
meetings to inform them about this rule and offer help with development 
of management plans. In many cases, the Service provided review and 
assisted Tribes in the development of management plans. We contacted 
each Tribe/Pueblo when the draft Economic Analysis and draft 
Environmental Assessment were made available and informed them of the 
dates and locations of public hearing and open house meetings. We held 
an open house meeting specifically for the Pueblos in NM. We intend to 
keep improving our relationships with the Tribes and the Bureau of 
Indian Affairs following the tenets of Secretarial Order 3206 and 
Executive Order 13175.

Comments Related to HCPs, NCCP Programs, and Other Exclusion Areas

    (51) Comment: Several comments were supportive of the policy that 
lands covered by approved and nearly completed HCPs that provide take 
authorization for the southwestern willow flycatcher should be excluded 
from critical habitat. Several of these commenters also requested that 
HCP exclusions should also apply to draft HCPs, lands enrolled in the 
NCCP program, and lands covered by the Joint Water Agency (JWA) draft 
plan.
    Our Response: While we trust that jurisdictions will attempt to 
fulfill their commitment to complete conservation plans, this voluntary 
enrollment does not assure that such plans will be finalized. 
Protections for southwestern willow flycatcher habitat provided through 
participating jurisdiction's enrollment in the California's Natural 
Communities Conservation Program (NCCP) processes are temporary and are 
not assured; such protections may be lost if the jurisdiction elects to 
withdraw from the NCCP program. Guidelines for the NCCP program direct 
habitat loss to areas with low long-term conservation potential that 
will not preclude the development of adequate NCCP/HCP plans and ensure 
that connectivity between areas of high habitat value will be 
maintained. We will consider excluding lands within pending HCP areas 
where we have received a permit application from the participants, an 
environmental analysis has been completed and released for public 
review and comment under the authority of NEPA, and we have completed a 
preliminary review of the HCP to ensure that the issuance of the 
associated incidental take permit would not result in a jeopardy or 
adverse modification finding for the subject species or its designated 
critical habitat. By completing these criteria, jurisdictions 
demonstrate their intent to finalize their HCP/NCCPs.
    (52) Comment: Several comments stated that the designation of 
critical habitat removes incentives to participate in NCCP and HCP 
processes, in part because of added regulatory uncertainty, increased 
costs to plan development and implementation, weakened stakeholder 
support, delayed approval and development of the plan, and greater 
vulnerability to legal challenge.
    Our Response: HCPs and NCCPs in California are one of the most 
important tools for reconciling land use with the conservation of 
listed species on non-Federal lands. We look forward to working with 
applicants to ensure that their plans meet the issuance criteria and 
that the designation of critical habitat on lands where a HCP/NCCP is 
in development does not delay the approval and implementation of their 
HCP/NCCP.
    (53) Comment: One commenter asked whether the designation of 
critical habitat would be considered a changed and unforeseen 
circumstance with respect to the various HCPs presently approved or 
pending.
    Our Response: If an area covered by a HCP was designated as 
critical habitat, it would cause the Service to reinitiate section 7 
consultation on the issuance of that permit and evaluate critical 
habitat. However, approved or pending HCPs that were determined to 
provide a benefit to the conservation of the southwestern willow 
flycatcher and were excluded from the critical habitat designation 
would not cause a changed circumstance or reinitiation of section 7 
consultation because no critical habitat would be designated in those 
areas (see

[[Page 60898]]

Application of Sections 3(5)(A), 4(a)(3), and Exclusions Under Section 
4(b)(2) of the Act). The lone HCP where critical habitat is designated 
is along the Virgin River in Clark County, NV. In this instance, the 
Service would reinitiate section 7 consultation. See comment 56 below 
for further explanation. However, due to our ``no surprises'' 
regulation, we would expect no additional measures required above and 
beyond those already established in the HCP.
    (54) Comment: Several comments stated multiple reasons for why 
essential southwestern willow flycatcher habitat within several HCPs, 
military installations, tribes, etc. should not be excluded from 
critical habitat. They stated that the benefit of designating these 
areas as critical habitat outweighs the benefits of excluding them 
because exclusions are based partly on speculative and unproven future 
activities and critical habitat provides a greater benefit than 
measures contained in draft and approved conservation plans. They also 
stated that the Service unlawfully predetermined the benefits of 
excluding essential habitat because our determination was made prior to 
soliciting public review.
    Our Response: In many cases, partnerships with individual 
landowners and conservation agreements with a variety of stakeholders 
can provide a much greater conservation benefit for the southwestern 
willow flycatcher and other species, as they offer proactive positive 
management actions on private lands that cannot be achieved through a 
critical habitat designation. We have determined that the exclusion of 
certain lands covered by HCPs, INRMPs, tribal management plans, and 
others from critical habitat designation will not result in the 
extinction of the southwestern willow flycatcher and that a greater 
conservation benefit to the flycatcher than from a critical habitat 
designation will be provided (see the Application of Section 3(5)(A) 
and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for 
a detailed discussion).
    However, we did not reach this conclusion prior to receipt of 
public comment as contended in this comment; areas excluded from the 
draft proposal because of their inclusion in HCPs or coverage by INRMPs 
were identified as such, proposed justifications offered for public 
review, and notice was provided that these areas might be included in 
the final designation based on public comments.
    (55) Comment: One commenter asked whether areas covered under 
existing section 7 permits can be excluded from critical habitat in a 
manner similar to areas under existing section 10 permits.
    Our Response: Consultation under section 7 of the Act does not 
always result in the issuance of an incidental take permit for listed 
species. Federal actions where we conclude that the project is not 
likely to jeopardize the continued existence of a listed species are 
exempted from the prohibition against take of listed animal species 
under section 9 of the Act when the Federal agency, and any permittee 
comply with the terms and conditions of the incidental take statement 
accompanying the Service's biological opinion. Proposed Federal 
projects do not necessarily commit a Federal agency to protect an area 
for a listed species, and in many instances the Federal agency is only 
permitting an action and does not have land management authority. 
Section 7 of the Act only commits a Federal agency to not jeopardize a 
species or cause adverse modification of critical habitat due to a 
specific project it initiates, permits, or funds. Typically HCPs 
provide greater conservation benefits to a covered species by assuring 
the long-term protection and management of a covered species and its 
habitat, and funding for such management is assured through the 
standards found in the 5-Point Policy for HCPs (64 FR 35242), the HCP 
No Surprises regulation (63 FR 8859), and relevant regulations 
governing the issuance and implementation of HCPs, such as those 
requiring the permittee to minimize and mitigate the taking to the 
maximum extent practicable. However, such assurances are typically not 
provided in connection with Federal projects subject to section 7 
consultations which, in contrast to activities on non-Federal lands 
covered by HCPs, are not required to and often do not commit to long-
term special management or protections. Thus, a consultation unrelated 
to a HCP typically does not accord the lands it covers the extensive 
benefits a HCP provides. However, management of some Federal lands 
included in this designation, such as Lake Isabella, Roosevelt Lake, 
and Horseshoe Lake provide protection of southwestern willow flycatcher 
habitat in conjunction with section 7 consultation and/or HCPs (see the 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). In cases where we have determined that 
conservation by a Federal landowner provides a substantial, long-term 
benefit to the species, we have excluded these Federal lands from the 
critical habitat designation (see the Application of Section 3(5)(A) 
and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section).
    (56) Comment: We received a few comments recommending we exclude 
the Virgin River as a result of the Clark County HCP.
    Our Response: The Clark County Multiple Species Habitat 
Conservation Plan (MSHCP) was completed in November 2000, and the 
incidental take permit was issued on January 9, 2001. The southwestern 
willow flycatcher, as well as five additional riparian obligate 
species, was included in the MSHCP and permit application. The permit 
issued for the MSHCP covered the County, the Cities of Clark County, 
and Nevada Department of Transportation (permittees) for take of the 
covered species on all non-Federal Land with the County, up to a 
maximum loss of 58,681 ha (145,000 ac) of habitat within a 30-year 
period. However, due to the relatively large percentage of riparian 
habitat that occurs on non-Federal lands, the permit obligated the 
County to fulfill certain conditions prior to authorization of take of 
the avian riparian obligate species. These conditions include (1) the 
development of conservation management plans that identify the 
management and monitoring actions needed for desert riparian habitats 
along the Muddy River, Virgin River, and Meadow Valley Wash; and (2) 
the acquisition of private lands in desert riparian habitats along the 
Muddy River, Virgin River, and Meadow Valley Wash, with the total 
number and location of hectares (acres) within each watershed to be 
identified in the conservation management plans. These two conditions 
have not yet been fulfilled, as the development of the conservation 
management plans has not yet begun. A habitat conservation planning 
process has been initiated for the Virgin River, but planning efforts 
have not yet identified the activities that may impact the species, or 
the conservation actions that would be required to offset those 
impacts. Until these conditions are met, the permittees are not 
authorized for take of the flycatcher, or the other covered riparian 
obligate species in the event they are listed under the Act. Given the 
lack of progress the permittees have demonstrated in fulfilling these 
conditions, we have determined that the status of the conservation 
planning for the Virgin River falls short of meeting the criteria for 
exclusion under section 4(b)(2) of the Act.

[[Page 60899]]

Comments Related to Economic Impacts and Analysis; Other Relevant 
Impacts

Policy Issues
    (57) Comment: Several commenters state that the economic analysis 
should incorporate the recent ruling in the Ninth Circuit Court of 
Appeals, Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service.
    Our Response: The economic analysis acknowledges that a recent 
Ninth Circuit judicial opinion, Gifford Pinchot Task Force v. United 
States Fish and Wildlife Service, has invalidated the Service's 
regulation defining destruction or adverse modification of critical 
habitat. The Service is currently reviewing the decision to determine 
what effect it (and to a limited extent Center for Biological Diversity 
v. Bureau of Land Management (Case No. C-03-2509-SI, N.D. Cal.)) may 
have on the outcome of consultations pursuant to section 7 of the Act.
    (58) Comment: Several comments stated that the economic analysis 
fails to use the proper baseline for analysis as determined in New 
Mexico Cattlegrowers' Association (10th Circuit Court of Appeals). Two 
comments stated that the economic analysis should differentiate between 
impacts of listing and impacts of critical habitat designation. Another 
comment stated that the economic analysis should describe the costs of 
designation above and beyond those costs associated with past and 
future conservation activities, including listing, ongoing activities, 
and potential future conservation costs.
    Our Response: The economic analysis estimates the total cost of 
species conservation activities without subtracting the impact of pre-
existing baseline regulations (i.e., the cost estimates are fully co-
extensive). In 2001, the U.S. 10th Circuit Court of Appeals instructed 
the Service to conduct a full analysis of all of the economic impacts 
of proposed critical habitat designation, regardless of whether those 
impacts are attributable co-extensively to other causes (New Mexico 
Cattle Growers Ass'n v. USFWS, 248 F.3d 1277 (10th Cir. 2001)). The 
economic analysis complies with direction from the U.S. 10th Circuit 
Court of Appeals.
    This analysis identifies those economic activities believed to most 
likely threaten the flycatcher and its habitat and, where possible, 
quantifies the economic impact to avoid, mitigate, or compensate for 
such threats within the boundaries of the critical habitat designation. 
In instances where critical habitat is being proposed after a species 
is listed, some future impacts may be unavoidable, regardless of the 
final designation and exclusions under 4(b)(2). However, due to the 
difficulty in making a credible distinction between listing and 
critical habitat effects within critical habitat boundaries, this 
analysis considers all future conservation-related impacts to be 
coextensive with the designation.
    (59) Comment: One comment stated that the economic analysis did not 
identify the criteria or analytical methods by which the Secretary will 
make the decision on where benefits of including areas in the critical 
habitat designation for flycatcher outweigh the benefits of excluding 
areas from the critical habitat designation. One comment stated that 
the economic analysis failed to determine whether benefits of inclusion 
outweigh the benefits of exclusion within each flycatcher management 
unit. Another comment specifically noted that the economic analysis 
does not identify biological terms that are used to balance the 
benefits and costs of designation. Finally, one comment stated that the 
cost-effectiveness approach is the appropriate method to use in 
weighing the costs and benefits of critical habitat designation, and 
that the economic analysis does not use this method.
    Our Response: In the context of a critical habitat designation, the 
primary purpose of the rulemaking (i.e., the direct benefit) is to 
designate areas in need of special management that contain the features 
that are essential to the conservation of listed species.
    The designation of critical habitat may result in two distinct 
categories of benefits to society: (1) Use; and (2) non-use benefits. 
Use benefits are simply the social benefits that accrue from the 
physical use of a resource. Visiting critical habitat to see endangered 
species in their natural habitat would be a primary example. Non-use 
benefits, in contrast, represent welfare gains from ``just knowing' 
that a particular listed species'' natural habitat is being specially 
managed for the survival and recovery of that species. Both use and 
non-use benefits may occur unaccompanied by any market transactions.
    A primary reason for conducting this analysis is to provide 
information regarding the economic impacts associated with a proposed 
critical habitat designation. Section 4(b)(2) of the Act requires the 
Secretary to designate critical habitat based on the best scientific 
data available after taking into consideration the economic impact, and 
any other relevant impact, of specifying any particular area as 
critical habitat. Economic impacts can be both positive and negative 
and by definition, are observable through market transactions.
    Where data are available, this analysis attempts to recognize and 
measure the net economic impact of the proposed designation. For 
example, if the fencing of a species' habitat to restrict motor 
vehicles results in an increase in the number of individuals visiting 
the site for wildlife viewing, then the analysis would recognize the 
potential for a positive economic impact and attempt to quantify the 
effect (e.g., impacts that would be associated with an increase in 
tourism spending by wildlife viewers). In this particular instance, 
however, the economic analysis did not identify any credible estimates 
or measures of positive economic impacts that could offset some of the 
negative economic impacts analyzed earlier in this analysis.
    Under Executive Order 12866, OMB directs Federal agencies to 
provide an assessment of both the social costs and benefits of proposed 
regulatory actions. OMB's Circular A-4 distinguishes two types of 
economic benefits: Direct benefits and ancillary benefits. Ancillary 
benefits are defined as favorable impacts of a rulemaking that are 
typically unrelated, or secondary, to the statutory purpose of the 
rulemaking. In the context of critical habitat, the primary purpose of 
the rulemaking (i.e., the direct benefit) is the potential to enhance 
conservation of the species. The published economics literature has 
documented that social welfare benefits can result from the 
conservation and recovery of endangered and threatened species. In its 
guidance for implementing Executive Order 12866, OMB acknowledges that 
it may not be feasible to monetize, or even quantify, the benefits of 
environmental regulations due to either an absence of defensible, 
relevant studies or a lack of resources on the implementing agency's 
part to conduct new research. Rather than rely on economic measures, 
the Service believes that the direct benefits of the proposed rule are 
best expressed in biological terms that can be weighed against the 
expected cost impacts of the rulemaking.
    We have accordingly considered, in evaluating the benefits of 
excluding versus including specific area, the biological benefits that 
may occur to a species from designation (see below, Exclusions Under 
section 4(b)(2) of the Act), but these biological benefits are not 
addressed in the economic analysis.

General Issues

    (60) Comment: One comment stated that the economic analysis should

[[Page 60900]]

combine efficiency and distributional impacts for each management unit.
    Our Response: As stated in Section 1 of the economic analysis, 
efficiency and distributional economic impacts are fundamentally 
different measurements of economic impact, and as such, cannot be added 
or directly compared. See section 1 of the economic analysis for a more 
detailed discussion of the distinctions between these terms.
    (61) Comment: One comment stated that the economic analysis should 
consider the cumulative effects of flycatcher habitat and other 
existing and proposed critical habitat designations in Southern 
California.
    Our Response: The economic analysis quantifies economic effects 
associated with flycatcher conservation activities. This information is 
intended to assist the Service in determining whether the benefits of 
excluding particular areas from the designation outweigh the benefits 
of including those areas. It is therefore beyond the scope of the 
economic analysis to evaluate the cumulative effects of all previous 
designations.
    (62) Comment: Two comments stated that the economic analysis 
underestimates the length of delay on projects that are subject to 
Section 7 consultations (e.g. water facility maintenance, fire 
management activities).
    Our Response: The revised analysis includes a discussion of the 
potential impacts of delay in Section 4 (Water Management), Section 6 
(Development) and Section 10 (Other Activities).

Mining Issues

    (63) Comment: Several comments stated that the economic analysis 
failed to consider potential economic impacts of the flycatcher 
critical habitat designation on mining activities in the southwestern 
United States.
    Our Response: The draft economic analysis did not discuss potential 
impacts to mining activities. Based on information provided during the 
public comment period from mining interests, the economic analysis has 
been revised to include a chapter that considers potential impacts to 
the mining industry.

Water Issues

    (64) Comment: At least two public comments question how flycatcher 
critical habitat designation may impact existing state and Federal 
water law.
    Our Response: The Recovery Plan recognizes a number of legal 
constraints on the Service's or other action agencies ability to modify 
water management practices to protect for the flycatcher, including 
water rights, delivery contracts, legal commitments to power 
generation, and requirements for flood control. These types of 
arrangements exist on many of the rivers included in critical habitat 
designation areas. However, where legal precedents exist, no changes to 
water law are anticipated to result from this rulemaking. For example, 
currently there is no legal requirement for USBR to maintain water 
levels below flycatcher habitat at the lake created by Hoover Dam 
[Southwest Center for Biological Diversity v. U.S. Bureau of 
Reclamation, 143 F.3d 515 (9th Cir. 1998)]. The Department of the 
Interior has interpreted the U.S. Supreme Court's injunction [Arizona 
v. California, 376 U.S. 340 (1964)] as precluding the release of water 
from Lake Mead for the sole purpose of protecting flycatcher habitat. 
Congress has also enacted legislation to prohibit USBR from releasing 
San Juan/Chama water for flycatcher management purposes at Heron 
Reservoir.
    (65) Comment: One comment questioned a number of water price and 
supply assumptions in the economic analysis. First, the comment stated 
that the economic analysis makes water price assumptions that are 
inappropriate given the large water supply potentially impacted by the 
critical habitat designation, the probable difference in the marginal 
value of water across different scenarios, and the variation in water 
prices over time. This comment also stated that the economic analysis 
makes water supply assumptions that fail to consider the costs of 
alternate water supply sources, barriers to water reallocation and 
marketing, and water supply conditions in relatively dry years.
    Our Response: Scenario 2 provides context for understanding the 
magnitude of impacts that could occur if operators are forced to alter 
water management in order to avoid adverse modification of habitat. As 
stated in Section 4 of the economic analysis, considerable uncertainty 
surrounds Scenario 2 and the probability of various outcomes is 
unknown. As discussed in the economic analysis, detailed assessment of 
the economic impacts on facilities and end users would require detailed 
system-wide hydrologic and economic models. That is, the analysis would 
require models that predict changes in water allocation under 
alternative water management regimes and the behavioral responses of 
various water users when faced with potential shortfalls and/or higher 
water prices. Such models do not exist for most areas potentially 
affected by flycatcher conservation activities. As a result, this 
analysis utilizes best available data and simplifying assumptions to 
provide estimates that bound the magnitude of potential impacts that 
could result from alterations to water operations.
    Given the geographic and hydrological variation across systems, it 
is unlikely that all facilities will lose storage capacity in the same 
year. Furthermore, the economic analysis assumes that flycatcher 
conservation measures will not affect regional water markets or prices 
because the potential storage capacity lost represents a very small 
component of the total available storage capacity. Refer to Exhibits 4-
3, 4-7, and Appendix exhibits A-2, A-3 and A-4.
    This analysis conservatively assumes that any spilled water is lost 
from consumptive (i.e., municipal, industrial, commercial, etc.) use 
and develops an approximate estimate of related economic losses using 
information on water rights prices and other replacement costs. This 
analysis assumes that these costs are a reasonable proxy for the value 
of water in conservation storage, and the value lost when storage is 
limited. Note that the market value of consumptive water rights is 
dependent on a variety of considerations, including priority and point 
of diversion, among other factors. If the actual cost of water is 
higher (or lower) than the reported cost, the economic impacts will 
also be higher (or lower).
    The economic analysis estimates costs to water storage facilities 
based on average conditions. In reality, some years are wetter or dryer 
than others. Dry-year constraints may create an additional economic 
burden for water managers. The revised economic analysis presents 
information on the likely amount of spill that would be needed in the 
50th and 95th percentile driest water years, to provide a sense of the 
sensitivity of the results presented.
    (66) Comment: Several comments highlight water supply and flood 
control structures and projects that are not considered in the economic 
analysis, and for which they claim potential impacts are possible 
pursuant to critical habitat designation for flycatcher. In addition, 
two comments state that the economic analysis failed to consider the 
potential loss of the ability to divert surface and groundwater in the 
Little Colorado MU and the Upper Gila MUs.
    Our Response: The revised economic analysis incorporates a 
discussion of potential economic impacts on water users in the Little 
Colorado, Upper Gila MUs, and other concerned areas for

[[Page 60901]]

which public comments were submitted.
    Section 4 of the economic analysis provides an analysis of economic 
impacts associated with flycatcher conservation activities related to 
water management activities, including dam operations, hydropower 
production, water diversion, groundwater pumping, river channelization, 
and bank stabilization. As discussed in Section 4, detailed assessment 
of the economic impacts on facilities and end users would require 
detailed system-wide hydrologic and economic models. This analysis 
utilizes best available data and simplifying assumptions to provide 
estimates that bound the magnitude of potential impacts that could 
result from alterations to water operations in proposed critical 
habitat designation areas.
    (67) Comment: One commenter states that the assumption that, in the 
case of Horseshoe Reservoir, reservoir managers will adapt water 
management to avoid water losses caused by a reduction in reservoir 
capacity over time is unrealistic because the storage capacity of the 
reservoirs is small in relation to the flow of the river system, and 
thus water losses would occur. Second, the commenter states that the 
economic analysis inappropriately downplays the loss of water resulting 
from flycatcher critical habitat designation by stating that some 
windfall use by downstream users may occur. Another comment states that 
the assumption made in the economic analysis related to Scenario 2 do 
not consider the recent drought and current low water levels, or 
ongoing population growth and resulting increases in water demand.
    Our Response: The ability of storage facilities to adapt water 
management practices is unique for each facility based on hydrology, 
water management system, and current legal water agreements. Some 
facilities may be able to adapt management practice to reduce water 
losses due to flycatcher conservation measures, while others may not. 
As stated in Section 4 of the economic analysis, analysis does not 
subtract any costs associated with ``windfall'' downstream use of water 
following spillage--that is, this analysis assumes that all water 
released will be not be used by downstream users (i.e., lost to the 
ocean).
    However, we agree that flycatcher conservation measures may impose 
additional costs and changes on top of significant ongoing trends, 
including long-term drought, in the Southwest. The economic analysis 
notes in Section 4 that flycatcher conservation measures may accelerate 
and compound ongoing trends in natural resource use in the Southwest, 
including increasing population growth and long-term droughts.

Tribal Issues

    (68) Comment: Numerous comments state that the economic analysis 
does not address the full suite of impacts to affected Tribes. Two 
comments state that estimates included in the economic analysis grossly 
understate the real economic costs to Tribal governments of critical 
habitat designation on Tribal lands. Another comment states that 
administrative costs to Tribes are not adequately discussed in the 
economic analysis. Three Tribes were concerned that they were 
overlooked in the economic analysis: Taos Pueblo, the Pueblo of Isleta, 
and the Santo Domingo Tribe.
    Our Response: Section 7 of the economic analysis presents all 
available information regarding potential flycatcher conservation 
activities that have affected or which may affect the fifteen Tribes 
whose lands fall within proposed critical habitat designation areas. 
Attempts were made to contact each Tribe with lands in proposed 
critical habitat designation, as well as a number of other Tribes 
outside of critical habitat designation that expressed concern about 
potential impacts on them. Exhibit 7-3 summarizes potential impacts on 
the Tribes, and highlights where costs to the Tribes are unknown. 
Section 7 of the economic analysis also notes that publicly available 
information was not always available to fully assess the potential 
costs of flycatcher conservation activities. The revised economic 
analysis now includes a statement that ``in many cases, information was 
not available for costs of flycatcher conservation activities [to 
Tribes], such as species surveys. In addition, administrative costs [to 
Tribes] of compliance with the Act are often not known. Overall, the 
absence of cost information related to the potential impacts of 
flycatcher conservation on Tribal lands results in a probable 
underestimate of future costs to Tribal entities in this section.''
    Known potential administrative costs are included Section 3 of this 
analysis. However, some additional administrative costs of compliance 
with ESA are unknown and therefore not included in estimates. To the 
extent that these unknown administrative costs relate to southwestern 
willow flycatcher, administrative costs estimates for the Tribes may be 
underestimated. Section 7 acknowledges this limitation.
    The economic analysis did not include Taos Pueblo or Santo Domingo 
in the its analysis of potential economic impacts to tribal activities 
since they fall outside of critical habitat designation areas. The 
economic analysis discussed potential impacts on the Pueblo of Isleta 
in Section 7 of the economic analysis. However, public comments 
submitted by the Tribe expressed concerns related to economic, 
cultural, and treaty impacts of critical habitat designation. 
Additional information provided in these comments were incorporated 
into the economic analysis.

Grazing Issues

    (69) Comment: Numerous comments state that the economic analysis 
underestimates impacts of flycatcher critical habitat designation to 
grazing and does not consider the impact that even a small reduction in 
AUMs may have on ranching operations.
    Our Response: Section 5 of the economic analysis examines potential 
impacts on grazing activities that include exclusion or removal of 
livestock grazing from riparian areas year-round or during the 
flycatcher breeding season. In many cases, the estimates include 
impacts that may be associated with other riparian habitat initiatives 
and other endangered species. Estimates also include potential impacts 
on private lands grazing, although the Service questions the assumption 
that private grazing will be affected in the future. The analysis 
includes a range that includes the potential for all private grazing to 
be removed from the riparian are due to flycatcher conservation 
activities. As a result, Section 5 acknowledges that the loss of 89,000 
AUMs is conservative, that is, estimates are more likely to overstate 
than understate impacts due to flycatcher.
    Section 5 of the revised economic analysis now recognizes the 
possibility that small reductions in AUMs could affect the viability of 
some ranching operations. The analysis now places impacts that could 
occur in the context of the economics of ranching, and points out that 
``ranchers often have debts to repay that rely on the current number of 
AUMs grazed. NMCA states that even small cuts in the number of AUMs 
grazed by these ranchers can affect the financial stability of those 
operations.''
    (70) Comment: One commenter states that estimated impacts on 
grazing activities are overstated. The commenter states that the 
economic analysis inappropriately assigns grazing impacts to 
flycatcher, as opposed to other species or causes.

[[Page 60902]]

    Our Response: Section 5.2.2 of the economic analysis discusses 
factors that affect the number of permitted and authorized AUMs 
approved by USFS and BLM for a given Federal grazing allotment. These 
factors include the presence of endangered species, tree encroachment, 
fire suppression, forage availability, and forage by other ungulates. 
The analysis states that ``on a particular allotment containing 
flycatcher habitat, reductions to authorized or permitted AUMs made by 
USFS or BLM may be: (1) Directly related to flycatcher conservation; 
(2) indirectly related to flycatcher conservation; (3) not related to 
flycatcher conservation at all; or (4) resulting from a combination of 
factors.'' The analysis then explains each scenario in detail, and 
suggests that in most cases, reductions in AUMs result from a 
combination of factors. The analysis also concludes that because of the 
spatial and temporal overlap of past reductions in AUMs with flycatcher 
habitat, it is difficult to separate flycatcher-related causes from 
other causes of changes that occur in flycatcher critical habitat 
designation areas. Section 5 acknowledges that the loss of 89,000 AUMs 
is conservative, that is, estimates are more likely to overstate than 
understate impacts due to flycatcher.
    (71) Comment: One comment states that the economic analysis does 
not consider impacts to ranching activities outside of flycatcher 
critical habitat designation.
    Our Response: Ranching activities located outside of the proposed 
critical habitat designation were not expected to experience direct 
economic impacts related to the designation, and therefore these 
activities are not specifically addressed in the analysis. However, to 
the extent that there are regional economic impacts related to 
restrictions on grazing activities, these have been captured in the 
regional economic impact analysis of grazing. This analysis is 
presented in Section 5 of the final economic analysis.

Transportation Issues

    (72) Comment: One comment states that the economic analysis 
underestimates impacts of flycatcher critical habitat designation on 
future transportation projects based on the uncertainty associated with 
these projects; however, the economic analysis should use caveats and 
assumptions as it does with other activities to estimate future 
transportation projects. One comment states that the economic analysis 
does not take into account economic impacts on the Foothill/Eastern 
Transportation Corridor Agency and the Corridor.
    Our Response: The economic analysis analyzes potential impacts 
transportation activities in Section 8. Conversations with state 
transportation agency staff, identified 11 transportation projects in 
NV (1), NM (3), and AZ (7) expected to occur in critical habitat 
designation areas in the future. No projects were identified in 
critical habitat designation areas by UT Department of Transportation 
or the CO Department of Transportation. Using the CA Transportation 
Investment System, the economic analysis identified 8.4 km (5.2 mi) of 
highway construction and improvements expected to occur within critical 
habitat designation areas in the future in CA. The economic analysis 
relied on the expertise of state transportation agencies to identify 
future projects that occur within critical habitat designation areas. 
In addition, major road projects are generally planned and constructed 
over a very long time horizon. As such, it is reasonable to assume that 
state transportation agencies will have the best information available 
regarding future transportation projects.
    The economic analysis did not take into account economic impacts to 
the Foothill/Eastern Transportation Corridor Agency (TCA). Analysis of 
this project has been added in Section 8.2.1. based on public comments 
submitted by TCA.

Development Issues

    (73) Comment: One comment states that the economic analysis 
mistakenly assumes that there is no projected development in proposed 
critical habitat designation in San Diego County.
    Our Response: As described in section 6 of this analysis, 
floodplain development is assumed to be most probable in those census 
tracts that are densely populated and largely devoid of opportunities 
for new development (thereby necessitating development within the 
floodplain). Specifically, in CA, those census tracts intersecting 
flycatcher habitat that are both the most densely populated (i.e., the 
densest 25 percent of tracts intersecting habitat) and least 
developable (i.e., the least developable 25 percent of tracts 
intersecting habitat) are isolated for further analysis. This included 
the census tract discussed in the comment.
    To analyze development projections, GIS maps of the proposed 
critical habitat designation boundaries were correlated with census 
tract level data provided by the San Diego Association of Governments 
(SANDAG). SANDAG is a quasi-governmental agency responsible for 
providing official demographic projections for San Diego County. The 
SANDAG land use projections are used to identify undeveloped acres 
slated for residential, retail, office, or industrial development. 
SANDAG provides acreage estimates for these land use categories. At 
this time, SANDAG does not project growth in proposed critical habitat 
designation areas in San Diego County.
    (74) Comment: Two comments raised concerns concerning impacts of 
flycatcher critical habitat designation on the regional real estate 
market. One comment states that the DEA incorrectly concludes that 
critical habitat designation will not have a significant impact on the 
regional real estate market. Another comment states that the DEA makes 
unrealistic conclusions about how the critical habitat designation 
would affect residential real estate downstream of Seven Oaks Dam and 
along the San Ana River's tributaries.
    Our Response: To determine the regional significance of flycatcher 
conservation activities on the real estate market, the economic 
analysis compares the reduction in acres slated for development to 
market-wide demand and supply conditions. Ideally, land set-aside 
requirements should be compared with the total supply of developable 
acreage in the region. However, accurate estimates of total regional 
development potential were not readily available. Consequently, 
projected acres of growth through 2023 in the three Counties where 
floodplain development is most probable are used as proxies for 
regional market supply. Total land development potential is based on 
SCAG and SANDAG forecasts.
    As discussed in Section 10 of the analysis, impacts are estimated 
to be 0.04 percent of projected real estate supply. Thus, the set-aside 
land associated with flycatcher protection is not expected to affect 
the dynamics of the regional real estate market. Hence, housing prices 
in each County are not likely to be affected. However, regulated 
landowners will bear the cost associated with flycatcher protection, in 
the form of lower property values. As this analysis assumes that the 
total supply of housing will be met, some projects may be distributed 
to other locations while others may proceed with higher flycatcher 
protection costs and lower land values. No broader effects on regional 
real estate prices are anticipated.

[[Page 60903]]

Fire Management Issues

    (75) Comment: Two comments state that the economic analysis does 
not consider economic impacts to fire management activities in certain 
areas. One comment states that the economic analysis failed to consider 
impacts to the Rio Grande Valley State Park, and specifically the 
potential impacts to fire management within the park that is undertaken 
to prevent damage to adjacent residential and commercial areas. The 
other comment states that the economic analysis does not address 
potential wildland fire prevention and suppression costs for Arizona 
counties, including Graham County.
    Our Response: Section 10 of the revised economic analysis states 
that fire was probably uncommon in flycatcher habitat. However, fire in 
some riparian zones (primarily low and mid-elevation areas) has 
increased as a result of flood suppression, dewatering of rivers, and 
other manmade effects. These changes to the environment have led to the 
proliferation of more flammable exotic vegetation such as tamarisk, 
giant reed, and red brome. Ignition sources have also increased due to 
greater use of riparian areas from recreation and urbanization.
    In areas that are in relatively close proximity to large urban 
populations, fire management, including exotic species removal and 
fuels management, is a critical component of urban planning efforts. 
Thus, local officials in areas proximal to urban areas have 
understandable concerns with about ongoing and future plans for these 
activities, particularly exotic species removal (most particularly, 
tamarisk control). The revised economic analysis includes an expanded 
discussion of potential impacts on fire management activities.

Agricultural Issues

    (76) Comment: Three comments state that the economic analysis does 
not adequately address the impact of flycatcher critical habitat 
designation on agricultural activities. One of these comments states 
that the economic analysis underestimates future consultation 
requirements because it does not consider the Federal nexuses that are 
present.
    Our Response: Section 5 of the economic analysis describes and 
quantifies potential impacts on ranching activities. Regarding 
potential impacts on crop agriculture, these are addressed as part of 
Scenario 2 for water management activities in Section 4. Because 
several water districts potentially affected under Scenario 2 for water 
management provide water for agricultural purposes, reductions in 
available water to these districts could result in corresponding 
reductions in irrigated crop acres for end users, if farmers are unable 
to switch to less water-intensive crops or find substitute water 
sources. Vail Dam, Isabella Dam, Horseshoe Dam, Roosevelt Dam, and the 
Lower Colorado systems dams all serve a significant number of 
agricultural users and are projected to lose water under Scenario 2. As 
detailed in Exhibit A-4, estimated water losses to districts supplying 
agricultural end users may reduce irrigated agricultural acreage in the 
affected counties by up to 12,520 ha (30,938 ac), assuming all 
reservoir facilities are affected. A cropland reduction of that 
magnitude would represent approximately 1.05 percent of total irrigated 
and non-irrigated cropland in the affected areas. Additional detail is 
provided in Section 4 and Appendix A of the economic analysis.

Small Business Issues

    (77) Comment: Numerous comments state that the economic analysis 
did not adequately estimate impacts of flycatcher critical habitat 
designation on small businesses. One comment states that the economic 
analysis does not quantify county-level impacts of AUM reductions, such 
as lost tax revenues. The other comment states that the economic 
analysis does not, and should, provide an economic and social analysis 
of how flycatcher critical habitat designation may impact each rural 
locality in the designation.
    Our Response: Appendix A considers the extent to which the analytic 
results presented in the main body of the economic analysis reflect 
potential future impacts to small businesses. Appendix A, Small 
Business Impacts, has been revised to provide additional details about 
the estimated location of potential impacts by county as well as by 
water user, where appropriate. The revised economic analysis presents 
impacts on grazing activities organized by county and on a per ranch 
basis in Appendix A.

Recreational Issues

    (78) Comment: One commenter states that a late spring-early summer 
drawdown under Scenario 2 could affect recreation, including sport 
fisheries, at several reservoirs. One comment states that the economic 
analysis does not provide dollar values for the impacts of forest 
service closures.
    Our Response: Facility managers were consulted as to the potential 
for flycatcher conservation activities to impact recreational 
activities at affected reservoirs. To the extent that recreational 
impacts were identified, recreational impacts are presented in Chapter 
10 of the final economic analysis. Section 10 of the revised economic 
analysis discusses the impacts of closures that have occurred for 
flycatchers, and quantifies these estimates where possible. 
Restrictions (primarily already in place) on certain uses of recreation 
areas in Tonto NF, AZ; San Bernardino NF, CA; and at Lake Isabella, CA, 
are discussed in detail in Section 10 of the revised economic analysis.
    Several studies have investigated how recreational impacts could 
change with varying reservoir levels (Cordell, K. H. and J. C. 
Bergstrom. 1993. Comparison of Recreation Use Values Among Alternative 
Reservoir Water Level Management Scenarios. Water Resources Research. 
29 (2): 247-258; Huszar et al. 1999. Recreational damages from 
reservoir storage level changes. Water Resources Research) However, 
these studies were case specific, and were conducted in geographic 
areas distinct from those affected by potential flycatcher conservation 
activities. Conducting a site specific study of the impact of 
alternative water management regimes on recreation is beyond the scope 
of this analysis.

Summary of Changes From the Proposed Rule

    In developing the final designation of critical habitat for the 
southwestern willow flycatcher, we reviewed public comments received on 
the proposed designation of critical habitat published on October 12, 
2004; the draft economic analysis and draft environmental assessment 
published on April 28, 2005 (70 FR 21988); conducted further evaluation 
of lands proposed as critical habitat; refined our mapping 
methodologies; excluded additional habitat containing features 
essential to the conservation of the subspecies from the final 
designation pursuant to section 4(b)(2) of the Act; and exempted those 
military lands that met the criteria for statutory exemptions pursuant 
to section 4(a)(3) of the Act. Table 1, included at the end of this 
section, outlines changes in area for each subunit. Specifically, we 
are making the following changes to the final rule from the proposed 
rule published on October 12, 2004:
    (1) In AZ, in response to comments, we made further site visits 
and/or re-evaluated information through habitat models, maps, and 
reports, and made

[[Page 60904]]

changes to Pinto Creek, South Fork Little Colorado River, Big Sandy 
River, lower Verde River, and Bill Williams River. Further site visits, 
surveys, and evaluation occurred for Pinto Creek, the South Fork of the 
Little Colorado River, and lower Verde River segment below Bartlett Dam 
that resulted in determining that these segments were not essential for 
inclusion in critical habitat, and therefore we removed these entire 
segments. We examined habitat models and further analyzed the quality 
of habitat that resulted in shortening the Big Sandy River segment to 
more accurately reflect habitat with essential features. Through site-
specific habitat evaluation reports, we re-examined the quality of 
habitat upstream from the Bill Williams National Wildlife Refuge at 
Planet Ranch, and determined that it contained features important, but 
not essential, to the conservation of the subspecies, and removed it 
from critical habitat. More discussion on these segments can be found 
in the appropriate Unit Descriptions below.
    (2) In NV, we identified in our proposal the Muddy River within the 
boundaries of the Overton State Wildlife Area, as an essential location 
we may consider for exclusion as a result of assurances, protections, 
and conservation benefit the flycatcher and its habitat receive from 
the State of Nevada's ownership and management of the property. We did 
not identify in the text of the proposed rule that a segment of the 
Virgin River containing features essential to the conservation of the 
subspecies also lies within the boundaries of the Overton Wildlife 
Area. Our maps did however identify this essential segment of the 
Virgin River within the boundaries of the Overton Wildlife Area. We 
considered both the Muddy and Virgin River segments within the Overton 
Wildlife Area for exclusion, and subsequently, as described below under 
Relationship of Critical Habitat to State and Federal Wildlife Areas--
Exclusions Under Section 4(b)(2) of the Act, have excluded these river 
segments from critical habitat.
    (3) In NV, we identified a 1.2 km (2 mi) (approximately 158 ha/390 
ac) segment of the Virgin River located between two distinct 
conservation lands on the Overton Wildlife Area, NV. As a result of 
this segment being surrounded by conservation lands, being detached 
from a considerably larger designated segment, being a very small piece 
of an overall large segment, and because a significant portion was 
purchased for conservation of wildlife, it is our determination that 
this segment is no longer essential for critical habitat and was 
removed from consideration. More discussion on this segment can be 
found in the appropriate Unit Description below.
    (4) In CA, in response to comments and further evaluation, we 
identify below entire proposed stream segments and portions of segments 
that we are not including in the final designation. We are not 
including Cuyamaca Lake in the final designation due to our re-
evaluation that the habitat included in the proposed designation 
provided minimal habitat for flycatchers, metapopulation stability, or 
prevention against catastrophic loss. Due to Forest Service, Bureau of 
Land Management, and Southern California Edison comments and our re-
evaluation of river segments, portions of the Santa Ana River (below 
Seven Oaks Dam), Temescal Creek, Temecula Creek, Santa Ysabel River, 
Oak Glen Creek, and Mill Creek were determined to not be essential and 
removed. Due to these same comments and our further scrutiny, remaining 
segments of the San Diego River, San Timoteo Wash, Yucaipa Creek, and 
Wilson Creek were determined to not be essential which left no 
remaining designated habitat on those streams. The re-evaluation of 
these segments resulted in us more accurately reflecting essential 
habitat in this final rule. We also re-evaluated and removed the 
segment of Cristianitos Creek proposed upstream of Marine Corps Base, 
Camp Pendleton, because we determined it was not essential due to it 
unlikely being able to support flycatcher nesting habitat. More 
discussion on these segments can be found in the appropriate Unit 
Descriptions below.
    (5) In NM, in response to comments and further evaluation of maps, 
we removed the middle Gila Box, located primarily on the Gila National 
Forest upstream of Red Rock and downstream of the Gila Bird Area, 
because it does not have, nor can it support abundant vegetation and is 
unlikely to be able to support flycatcher nesting and migration habitat 
as a result of it being a narrow canyon. Also, four small pieces of 
vegetation surrounding the San Juan, Santa Clara, and San Illdefonso 
Pueblos are being removed from this designation. More discussion on 
this segment can be found in the appropriate Unit Description below.
    (6) Although we attempted to remove as many developed areas (areas 
that have no conservation value as southwestern willow flycatcher 
habitat) as possible before publishing the proposed rule, we were not 
able to eliminate all developed areas. Since publication of the 
proposed rule and the receipt of more accurate mapping data and 
information, we were able to further refine the designation, which has 
resulted in a more precise delineation of essential habitat containing 
one or more of the primary constituent elements. This resulted in a 
minor reduction from the total area published in the proposed rule. 
However, it is not possible to remove each and every one of these 
developed areas even at the refined mapping scale used; therefore, the 
maps of the designation may contain areas that do not contain primary 
constituent elements. Lands within the boundaries of the designation 
that do not contain one or more of the PCEs are not considered to be 
critical habitat for the flycatcher.
    (7) While mapping the lateral extent of critical habitat, some side 
drainages, tributaries, and/or washes were included in the Little 
Colorado, Middle Colorado, Verde, Middle Gila/San Pedro, Upper Gila 
Management Unit, and Upper Rio Grande Management Units that extend 
beyond the rivers we described in the proposal. These pieces of habitat 
sometimes extended about 2 km (3 mi) along a tributary or wash not 
described in the proposal. We did not describe these segments in the 
text of the proposed rule. As a result, to the best of our ability, we 
have truncated these segments, so only those habitats on the rivers 
described are included in the final designation. We defer to the 
specific mapped boundaries of the final designation (http://criticalhabitat.fws.gov). These areas extending up side drainages, 
tributaries, and/or washes are not intended to be included as critical 
habitat and are removed from the designation, leading to a minor 
reduction in the total area published in the proposed rule.
    (8) Due to peer review, comments, and re-evaluation of the PCEs, we 
re-organized and revised PCE numbers 1 through 5 (as PCE 1, 1a, 1b, 1c, 
1d, and 1e) to more accurately reflect the content of our proposal by 
describing flycatcher uses of riparian habitat, the importance of a 
dynamic system and succession (i.e., germination and growth of riparian 
plants), and identifying specific riparian plant species. See the 
Primary Constituent Elements section below for specific language.
    (9) To more accurately reflect our proposal, we updated PCE number 
6 to include the order Odonata (dragonflies) to the list of flying 
insects consumed by southwestern willow flycatchers and re-numbered PCE 
number 6 as PCE number 2. See the Primary Constituent Elements section 
below for specific language.

[[Page 60905]]

    (10) Due to comments received, we have added two specific sections 
to this critical habitat rule that describe the geographical area 
occupied by the southwestern willow flycatcher and the nature of 
essential habitat not known to be within the geographical area occupied 
by the species at the time of listing. Please see the: Geographic Area 
Occupied by the Species and Justification of Including Areas Not Known 
To Be Within the Geographic Area Occupied by the Species at the Time of 
Listing sections below.
    (11) We have exempted State Lease lands (primarily Cristianitos 
Creek) included within the boundary of Marine Corps Base, Camp 
Pendleton per section 4(a)(3). See the Relationship of Critical Habitat 
to Military Lands--Application of Section 4(a)(3) and Exclusions Under 
Section 4(b)(2) of the Act section below.
    (12) We excluded river segments and reservoir bottoms under section 
4(b)(2) of the Act and exempted two Military Areas under section 
4(a)(3) of the Act from the final critical habitat designation (see the 
Application of Sections 3(5)(A) and 4(a)(3) and Exclusions Under 
Section 4(b)(2) of the Act section below). This is the primary source 
of reduction in total designated critical habitat area that was 
identified in the proposed rule. Exemptions under section 4(a)(3) 
included identified streams within Marine Corps Base, Camp Pendleton 
and Naval Weapons Station, Seal Beach, Detachment Fallbrook based on 
their approved INRMPs. Exclusions pursuant to section 4(b)(2) based on 
approved HCPs include San Diego County MSCP, Western Riverside County 
MSHCP, City of Carlsbad HMP, Roosevelt Lake HCP, and the Lower Colorado 
River MSCP. State Wildlife Areas excluded under section 4(b)(2) include 
the Overton and Key Pittman State Wildlife Areas, NV, and Alamo State 
Wildlife Area, AZ. Additional Wildlife Conservation Areas excluded 
include the South Fork Kern River Wildlife Area and Sprague Ranch, Kern 
River, CA. We excluded, pursuant to section 4(b)(2) of the Act, various 
Tribal lands and Pueblos that completed approved southwestern willow 
flycatcher management plans from the final designation. These include 
the following: Yavapai-Apache, Chemehuevi, Colorado River, Quechan 
(Fort Yuma), Fort Mohave, Hualapai, and San Carlos Apache Tribes in AZ, 
Pueblo of Isleta in NM, and Rincon and La Jolla Tribes in CA. We also 
excluded, pursuant to section 4(b)(2) of the Act, the San Illdefonso, 
San Juan, and Santa Clara Pueblos in Northern New Mexico along the Rio 
Grande due to partnerships associated with southwestern willow 
flycatcher habitat management. National Wildlife Refuges (NWR) excluded 
from the final designation under section 4(b)(2) of the Act due to 
wildlife conservation management include: Alamosa NWR, CO; Sevilleta 
and Bosque del Apache NWR, NM; Bill Williams, Havasu, Imperial, and 
Cibola NWR, AZ; and Pahranagat NWR, NV. Other lands excluded under 
section 4(b)(2) of the Act due to southwestern willow flycatcher/
riparian habitat conservation plans/programs/easements and/or 
partnerships include: Los Angeles Department of Water and Power, Owens 
River, CA; San Luis Valley Partnership, Rio Grande and Conejos Rivers, 
CO; Hafenfeld Ranch, Kern River, CA; Salt River Project--Horseshoe 
Lake, Verde River, AZ; the City of Albuquerque/Rio Grande Valley State 
Park, Rio Grande, NM; and U-Bar Ranch, Gila River, NM.

 Table 1.--Critical Habitat Units for the Southwestern Willow Flycatcher
------------------------------------------------------------------------
    Critical habitat management units      Final rule  ha (ac) / km (mi)
------------------------------------------------------------------------
Santa Ynez Management Unit...............          1560 (3855) / 32 (20)
Santa Ana Management Unit................          1103 (2727) / 97 (60)
San Diego Management Unit................         1944 (4805) / 102 (64)
Owens Management Unit....................                              0
Kern Management Unit.....................          1241 (3067) / 15 (10)
Mohave Management Unit...................          1033 (2553) / 55 (34)
Salton Management Unit...................              84 (206) / 11 (7)
Little Colorado Management Unit..........            216 (534) / 35 (22)
Virgin Management Unit...................        3903 (9643) / 119 / 74)
Middle Colorado Management Unit..........                              0
Pahranagat Management Unit...............                              0
Bill Williams Management Unit............          1883 (4654) / 30 (19)
Hoover to Parker Management Unit.........                              0
Parker to Southerly International Border                               0
 Management Unit.........................
Verde Management Unit....................          2191 (5414) / 96 (59)
Roosevelt Management Unit................          3064 (7572) / 60 (37)
Middle Gila/San Pedro Management Unit....       9692 (23949) / 170 (106)
Upper Gila Management Unit...............       6897 (17043) / 162 (101)
San Luis Valley Management Unit..........                              0
Upper Rio Grande Management Unit.........           664 (1640) / 66 (41)
Middle Rio Grande Management Unit........       13410 (33137) / 135 (84)
------------------------------------------------------------------------

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as--(i) 
the specific areas within the geographical area occupied by a species, 
at the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures that are necessary to bring an endangered or a threatened 
species to the point at which listing under the Act is no longer 
necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse

[[Page 60906]]

modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time of listing must 
first have features that are ``essential to the conservation of the 
species.'' Critical habitat designations identify, to the extent known 
using the best scientific and commercial data available, habitat areas 
that provide essential life cycle needs of the species (i.e., areas on 
which are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Specific areas within the geographic area occupied by the species 
at the time of listing may be included in critical habitat only if the 
essential features may require special management or protection. As 
discussed below, such areas may also be excluded from critical habitat 
pursuant to section 4(b)(2). When the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographical area occupied by the species at the time of 
listing. An area currently occupied by the species but that was not 
known to be occupied at the time of listing will likely be essential to 
the conservation of the species and, therefore, included in the 
critical habitat designation.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
and our associated Information Quality Guidelines, provides criteria 
and guidance, and establishes procedures to ensure that our decisions 
represent the best scientific and commercial data available. Our 
biologists are required, to the extent consistent with the Act and with 
the use of the best scientific and commercial data available, to use 
primary and original sources of information as the basis for 
recommendations to designate critical habitat. When determining which 
areas are designated as critical habitat, a primary source of 
information is generally the listing package for the species. 
Additional information sources include a recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties or other entities that develop HCPs, scientific 
status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge. All 
information is used in accordance with the provisions of Section 515 of 
the Treasury and General Government Appropriations Act for Fiscal Year 
2001 (Pub. L. 106-554; H.R. 5658) and the associated Information 
Quality Guidelines issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available in determining areas that are 
essential to the conservation of the southwestern willow flycatcher. 
Our methods for identifying the southwestern willow flycatcher critical 
habitat included in this final designation are those methods we used to 
propose critical habitat for the southwestern willow flycatcher, 
published on October 12, 2004 (69 FR 60706). In addition, we used 
information and data received during both the October 12, 2004 to May 
31, 2005, and July 7 to 18, 2005 public comment periods, the economic 
analysis, environmental assessment National Environmental Policy Act 
(NEPA) document, and communications with individuals inside and outside 
the Service who are knowledgeable about the species and its habitat 
needs.
    We have also reviewed available information that pertains to the 
habitat requirements of this species. The material included data in 
reports submitted during section 7 consultations and by biologists 
holding section 10(a)(1)(A) recovery permits; research published in 
peer-reviewed articles, agency reports, and databases; and regional 
Geographic Information System (GIS) coverages and habitat models.
    A variety of sources were used to determine territory site 
information and locations. The Recovery Plan (USFWS 2002), the U.S. 
Geological Survey (USGS 2004) southwestern willow flycatcher rangewide 
database, and 2002 (Sogge et al. 2003) and 2003 (Durst et al. 2005) 
rangewide status report of the flycatcher were the most authoritative 
and complete sources of information. The database maintained by USGS, 
Colorado Plateau Research Station, Flagstaff, AZ compiles the results 
of surveys conducted throughout the bird's range. We had compiled 2004 
data from AZ (Munzer et al. 2005), but did not have compiled data from 
other states. A summary of known historical breeding records can be 
found in the Recovery Plan (USFWS 2002: 8 to10).

Geographic Area Occupied by the Species

    The geographic area occupied by the southwestern willow flycatcher 
is widespread as a result of its behavior, breeding range, known 
migration and dispersal habits, and the dynamics of its habitat 
development. Unlike other animals whose habitat changes slowly or where 
movements are limited, the southwestern willow flycatcher is a neo-
tropical migrant that travels annually between its breeding grounds in 
the United States of America (U.S.) and wintering grounds in Central 
and South America. The riparian habitat it uses for breeding, foraging, 
migrating, dispersing, and shelter can change (is dynamic) in its 
quality, growth, and location due to its proximity to water and 
susceptibility to flooding (USFWS 2002; Koronkiewicz et al. 2004; 
Cardinal and Paxton 2005). As a result of the dynamic nature of its 
habitat, the southwestern willow flycatcher will typically move its 
breeding location from year-to-year (Luff et al. 2000; Kenwood and 
Paxton 2002; USFWS 2002; Newell et al. 2003, 2005). The bird does not 
usually exhibit nest fidelity (using the same nest tree year-to-year), 
but commonly demonstrates site-fidelity (Luff et al. 2000; Kenwood and 
Paxton 2002; USFWS 2002; Newell

[[Page 60907]]

et al. 2003, 2005). In other words, flycatchers do not typically return 
to use the same nest tree or habitat patch for breeding from year-to-
year, but commonly returns to or near the general area (or site) where 
they previously bred or hatched (Luff et al. 2000; Kenwood and Paxton 
2002; USFWS 2002:22; Newell et al. 2003, 2005). As result of these 
factors, the geographical area occupied by the flycatcher is much 
broader than the specific locations used while nesting.
    The southwestern willow flycatcher currently breeds across six 
southwestern states (southern CA, southern NV, southern UT, southern 
CO, AZ, and NM) from sea level to about 2438m (8000 feet) above sea 
level. While the bird occupies a broad area, its breeding locations are 
irregularly distributed within its range. Genetic studies conducted by 
Paxton (2000) helped confirm the subspecies and refine the northern 
boundary of the bird's breeding range (particularly in UT and CO) in 
the U.S. The current breeding range of the southwestern willow 
flycatcher is reflected in the maps found in the Recovery Plan (USFWS 
2002).
    The southwestern willow flycatcher, a neo-tropical migrant, travels 
between its breeding areas in the U.S. to wintering grounds in Central 
and South America. During these migrations, it occupies habitat 
(primarily riparian habitat along river corridors) across a wide 
geographic area during spring and fall migration. These essential 
migration stopover habitats are used for shelter, and to forage in 
order to sustain life, continue migration, and be in appropriate 
condition for breeding. These stopover areas are used briefly, can 
differ from year-to-year, are less habitat-specific than areas where 
nests are placed, but cover a greater geographic area than breeding 
locations. Birds have even been detected occupying non-riparian areas 
during migration (USFWS 2002:19). Current work along extensive sections 
of river drainages has provided the best information on the bird's 
migration habits (Yong and Finch 1997, 2002; Koronkiewicz et al. 2004; 
McLeod et al. 2005).
    The most current and comprehensive drainage-wide look at the use of 
migration habitat by willow flycatchers has occurred along the Lower 
Colorado River and its major tributaries (Koronkiewicz et al. 2004; 
McLeod et al. 2005). A total of 15 large study areas (comprised of over 
90 smaller survey sites) exist along the length of the Colorado River 
from the Grand Canyon above Lake Mead to Yuma, AZ (including the lower 
Virgin and Bill Williams rivers) and also include separate locations in 
southern Nevada along other tributaries of the Colorado River (the 
Pahranagat River and Meadow Valley Wash) (Koronkiewicz et al. 2004; 
McLeod et al. 2005). In 2003, willow flycatchers were recorded at 13 of 
15 study areas and 54 of 94 survey sites, occupying each large study 
area along the length of the Colorado River from the Grand Canyon above 
Lake Mead downstream to Yuma, AZ (Koronkiewicz et al. 2004). Also, 
study areas on the Virgin, Bill Williams, and Pahranagat rivers were 
occupied by willow flycatchers (Koronkiewicz et al. 2004). Similarly, 
in 2004, each of the 15 study areas and 72 of 92 survey sites were 
occupied by willow flycatchers (McLeod et al. 2005). This comprehensive 
view of willow flycatcher migration shows occupancy of a variety of 
riparian habitats along the entire length of a major drainage (Lower 
Colorado River) and its significant tributaries (Virgin, Bill Williams, 
and Pahranagat rivers), occupancy of different sites from one season to 
the next, and occupancy of a major drainage and its significant 
tributaries where breeding locations are interspersed (Koronkiewicz et 
al. 2004; McLeod et al. 2005). As a result of, (1) the study along the 
Lower Colorado River and its major tributaries (discussed above), (2) 
studies of willow flycatchers occurring along the Rio Grande (Yong and 
Finch 1997, 2002), and (3) detections of willow flycatchers along the 
same major drainages where breeding occurs throughout AZ (Munzer et al. 
2005), we expect similar flycatcher migration behavior for the other 
major drainages where southwestern willow flycatchers breed throughout 
its range and where these locations are included within this 
designation.
    While southwestern willow flycatchers place their nests in dense 
riparian habitat (USFWS 2002), occupancy of habitat in river corridors 
by pre-breeding, breeding, and post-nesting southwestern willow 
flycatchers extends beyond the dense vegetation where a nest is placed 
(Cardinal and Paxton 2005). Results from radio-telemetry studies 
determined that southwestern willow flycatchers explored a variety of 
riparian habitats of varying quality (Cardinal and Paxton 2005). Mixed 
(native and exotic) mature habitat was used 53 percent of the time 
(Cardinal and Paxton 2005). Smaller and younger immature vegetation 
comprised of willow and salt cedar was used 25 percent of the time 
(Cardinal and Paxton 2005). Also used were habitats classified as young 
(17 percent), open (4 percent), and mature exotic (1 percent) (Cardinal 
and Paxton 2005). Therefore, while vegetation required for nest 
placement is the most dense and specific of all habitats used by 
southwestern willow flycatchers, matrices of open spaces and shorter/
sparser vegetation are also used. However, during the entire time 
southwestern willow flycatchers were tracked, none were found using 
upland habitat (i.e., habitat that extended outside of the floodplain 
to non-riparian habitat) (Cardinal and Paxton 2005).
    The distances traveled and areas occupied by telemetered breeding 
and dispersing young-of-the year fledgling southwestern willow 
flycatchers varied, but were larger than the nest area (Cardinal and 
Paxton 2005). Breeding southwestern willow flycatcher home ranges 
varied from 0.15 ha (0.4 ac) to 360 ha (890 ac) (Cardinal and Paxton 
2005). Movements by male southwestern willow flycatchers prior to and 
after nesting were the farthest, while birds did not travel as far 
while nesting (Cardinal and Paxton 2005). One post-nesting male 
traveled through many territories, moving over 500 m (0.31 mi) in one 
day and collectively over several days, 2 km (1.2 mi). Other post-
nesting southwestern willow flycatchers were also observed traveling 
long distances to exploit a spike in food availability that may 
indicate staging behavior for migration (Cardinal and Paxton 2005). As 
a result, Cardinal and Paxton (2005) concluded that previous home 
ranges estimated for nesting southwestern willow flycatchers 
underestimated the actual home range of an individual southwestern 
willow flycatcher throughout the entire nesting season. In addition, to 
demonstrate how mobile flycatchers can be, a dispersing young-of-the-
year fledgling southwestern willow flycatcher was detected traveling 
over 24 km (15 mi) in a single day (Cardinal and Paxton 2005). 
Therefore, the use and occupancy of riparian habitat surrounding 
nesting areas by breeding and dispersing southwestern willow 
flycatchers is greater than previously believed, and is likely 
important for flycatchers to seek territories, to detect future nesting 
areas, search for mates, forage, and/or stage for migration (Cardinal 
and Paxton 2005).
    Therefore, the boundary of the current geographic area occupied by 
the southwestern willow flycatcher in the U.S. is supported by genetic 
studies (Paxton 2000) and is reflected in the range map included in the 
Recovery Plan (USFWS 2002) that describes its breeding range across 
southern CA, southern NV, southern UT, southern CO, AZ, and NM. Because 
this bird is a neotropical migrant traveling mainly along riparian 
areas where habitat

[[Page 60908]]

rapidly changes condition and location, its use of riparian habitat 
within this boundary along migration corridors is widespread (i.e., 
more extensive than specific breeding locations) and less predictable. 
However, all studies and surveys support that the flycatcher uses 
riparian habitat for migration stopover areas along the same major 
drainages where breeding sites are known to occur. Because of the 
bird's site fidelity to general breeding areas and the dynamics of its 
habitat, its nesting and foraging areas will also change over time, but 
will occur primarily along the same major river drainages where it is 
currently found in locations that can support the necessary vegetation 
qualities. Based upon continued surveys and recent telemetry studies on 
the use of habitat during the nesting season, the extent and diversity 
of habitat used is more widespread than previously believed. Pre-
breeding, breeding, dispersing, and non-territorial flycatchers can use 
a wide variety of riparian habitats that can encompass hundreds of 
hectares (acres).
    In the methodology section below, we further describe how we 
address the dynamic aspects of flycatcher habitat, the subspecies 
biology, and its life history needs (breeding, migration, dispersing, 
foraging, and shelter) and how we arrived at specific essential river 
segments for the designation of critical habitat occupied by breeding, 
non-breeding, migrating, foraging, dispersing, and territorial 
southwestern willow flycatchers.

Primary Constituent Elements

    In accordance with section 4(b)(2) of the Act and regulations at 50 
CFR 424.12, in determining which areas to designate as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific data available. Critical habitat is defined in section 
3(5)(A)(i), in part, as areas occupied by the species at the time of 
listing and containing those physical and biological features (PCEs) 
that are essential to the conservation of the species, and that may 
require special management considerations or protection. These general 
requirements include, but are not limited to: Space for individual and 
population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, and rearing (or development) 
of offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The specific PCEs required for the southwestern willow flycatcher 
are derived from the biological needs of the southwestern willow 
flycatcher. Supporting details are found below and can also be found in 
the Background section of the October 12, 2004, proposed rule (69 FR 
60706) and the Recovery Plan (USFWS 2002). The specific biological and 
physical features, or PCEs, which are essential to the conservation of 
the southwestern willow flycatcher, are described below. Identified 
lands provide aquatic and terrestrial habitat containing the essential 
PCEs supporting the maintenance of self-sustaining populations and 
metapopulations (see description below) of southwestern willow 
flycatchers throughout its range.
    The southwestern willow flycatcher currently breeds in relatively 
dense riparian habitats in all or parts of six southwestern states, 
from near sea level to over 2438 meters (m) (8000 feet) (USFWS 2002: D-
1) (Munzer et al. 2005). The southwestern willow flycatcher breeds in 
riparian habitats along rivers, streams, or other wetlands, where 
relatively dense growths of trees and shrubs are established, near or 
adjacent to surface water or underlain by saturated soil. Habitat 
characteristics such as dominant plant species, size and shape of 
habitat patch, canopy structure, vegetation height, and vegetation 
density vary widely among sites. Southwestern willow flycatchers nest 
in thickets of trees and shrubs ranging in height from 2 m to 30 m (6 
to 98 ft). Lower-stature thickets (2-4 m or 6-13 ft tall) tend to be 
found at higher elevation sites, with tall-stature habitats at middle 
and lower elevation riparian forests. Nest sites typically have dense 
foliage at least from the ground level up to approximately 4 m (13 ft) 
above ground, although dense foliage may exist only at the shrub level, 
or as a low dense canopy. Nest sites typically have a dense canopy.
    As a neotropical migrant (migrating between Central and South 
America and the United States), migration stopover areas for the 
southwestern willow flycatcher, even though not used for breeding, are 
critically important, (i.e., essential) resources affecting 
productivity and survival (Sogge et al. 1997b; Yong and Finch 1997; 
Johnson and O'Brien 1998; McKernan and Braden 1999; and USFWS 2002: E-3 
and 19). Use of riparian habitats along major drainages in the 
Southwest during migration has been documented (Sogge et al. 1997; Yong 
and Finch 1997; Johnson and O'Brien 1998; McKernan and Braden 1999; 
Koronkiewicz et al. 2004, McLeod et al. 2005, Munzer et al. 2005). Many 
of the willow flycatchers found migrating through riparian areas are 
detected in riparian habitats or patches that would be unsuitable for 
breeding (e.g., the vegetation structure is too short or sparse, or the 
patch is too small). Migrating flycatchers use a variety of riparian 
habitats, including ones dominated by native or exotic plant species, 
or mixtures of both (USFWS 2002: E-3). Willow flycatchers, like most 
small passerine birds, require food-rich stopover areas in order to 
replenish energy reserves and continue their northward or southward 
migration (Finch et al. 2000; USFWS 2002: E-3 and 42).
    Southwestern willow flycatchers breeding populations are believed 
to exist and interact as groups of metapopulations (Noon and Farnsworth 
2000; Lamberson et al. 2000; and USFWS 2002: 72). A metapopulation is a 
group of spatially disjunct local southwestern willow flycatcher 
breeding populations connected to each other by immigration and 
emigration (USFWS 2002: 72). The distribution of the southwestern 
willow flycatcher varies geographically and is most stable where many 
connected sites and/or large populations exist (Coastal CA, Gila, Rio 
Grande Recovery Units) (Lamberson et al. 2000 and USFWS 2002: 72). 
Metapopulation persistence or stability is more likely to increase by 
adding more breeding sites (see definition below) rather than adding 
more territories (see definition below) to existing sites (Lamberson et 
al. 2000; USFWS 2002: 72; and USFWS 2003). This strategy distributes 
birds across a greater geographical range, minimizes risk of 
simultaneous catastrophic loss, and avoids genetic isolation (USFWS 
2002: 72). In consideration of habitat that is dynamic and widely 
distributed, flycatcher metapopulation stability, population 
connectivity, and gene flow can be achieved through: Distributing birds 
throughout its range; having birds close enough to each other to allow 
for interaction; having large populations; having a matrix of smaller 
sites with high connectivity; and establishing habitat close to 
existing breeding sites, thereby increasing the chance of colonization 
(USFWS 2002: 75). As the population of a site increases, the potential 
to disperse and colonize increases; and an increase/decrease in one 
population affects other populations because populations are affected 
by the proximity, abundance, and reproductive productivity of 
neighboring populations (USFWS 2002: 75).
    Breeding site and territory are common terms used to describe areas 
where southwestern willow flycatchers

[[Page 60909]]

breed or attempt to breed. A breeding site may encompass a discrete 
nesting location (i.e. territory) or several (USFWS 2002: 72). A 
territory is defined as a territorial or singing male detected during 
field surveys and generally equates to an area where both a male and 
female are present (Sogge et al. 1997). For more specific information 
on southwestern willow flycatcher presence/absence survey protocol, 
please see Sogge et al. (1997) and any subsequent updates at http://fws.gov/arizonaes or http://www.usgs.nau.edu/swwf. Breeding site and 
patch (a ``patch'' is defined as a discrete piece of southwestern 
willow flycatcher habitat) fidelity and habitat use by adult, nestling, 
breeding, and non-breeding southwestern willow flycatchers are just 
beginning to be understood (Kenwood and Paxton 2001; Koronkiewicz and 
Sogge 2001; USFWS 2002: 17, Cardinal and Paxton 2005).
    Southwestern willow flycatchers have higher site fidelity than nest 
fidelity and can move among sites within drainages and between 
drainages (Kenwood and Paxton 2001). Within-drainage movements are more 
common than between-drainage movements (Kenwood and Paxton 2001). From 
nearly 300 band recoveries, within-drainage movements generally ranged 
from 1.6 to 29 kilometers (km) (1 to 18 miles (mi), but were as long as 
40 km (25 mi) (E. Paxton, USGS, e-mail). Movements of birds between 
drainages are more rare, and the distances are more varied. Banding 
studies have recorded 25 between-drainage movements ranging from 40 km 
(25 mi) to a single movement of 443 km (275 mi) (average = 130 km or 81 
mi) (E. Paxton, USGS, e-mail).
    The Recovery Plan for the southwestern willow flycatcher (USFWS 
2002) provides reasonable actions believed to be required to recover 
and protect the bird. The Recovery Plan (USFWS 2002: 105 to 136) 
provides the strategy for recovering the bird to threatened status and 
to the point where delisting is warranted. The Recovery Plan states 
that either one of two criteria can be met in order to downlist the 
species to threatened (USFWS 2002: 77-78). The first relies on reaching 
a total population of 1,500 territories strategically distributed among 
all Recovery Units and maintained for three years with habitat 
protections (USFWS 2002: 77-78). Habitat protections include a variety 
of options such as Habitat Conservation Plans, conservation easements, 
and Safe Harbor Agreements. The second criterion calls for reaching a 
population of 1,950 territories also strategically distributed among 
all Recovery and Management Units for five years without additional 
habitat protection (USFWS 2002: 77-78). For delisting, the Recovery 
Plan recommends a minimum of 1,950 territories must be strategically 
distributed among all Recovery and Management Units, and these habitats 
must be protected from threats and create/secure sufficient habitat to 
assure maintenance of these populations and/or habitat for the 
foreseeable future through development and implementation of 
conservation management agreements (USFWS 2002: 79-80). All of the 
delisting criteria must be accomplished and demonstrated their 
effectiveness for a period of 5 years (USFWS 2002: 79-80).
    All the PCEs of critical habitat for the southwestern willow 
flycatcher are found in the riparian ecosystem within the 100-year 
floodplain or flood prone area. Southwestern willow flycatchers use 
riparian habitat for nesting, feeding, and sheltering while breeding, 
migrating, and dispersing. Because riparian vegetation is prone to 
periodic disturbance, flycatcher habitat is ephemeral and its 
distribution is dynamic in nature (USFWS 2002: 17). In other words, 
riparian trees and shrubs used by flycatchers will be altered by flood 
waters, drought, or possibly succumb to fire, but will be replaced by 
new trees or shrubs which grow in their place (but not necessarily in 
the same location). Sapling riparian trees and shrubs must germinate 
and grow to reach the appropriate height and structure to be used by 
flycatchers. After reaching appropriate structure for nesting, 
flycatcher habitat may become unsuitable for breeding through 
maturation or disturbance, but suitable for migration or foraging 
(though this may be only temporary, and patches may cycle back into 
suitability for breeding) (USFWS 2002: 17). Over a five-year period, 
southwestern willow flycatcher habitat can, in optimum conditions, 
germinate, be used for migration or foraging, continue to grow, and 
eventually be used for nesting. Therefore, the riparian vegetation used 
by flycatchers is part of a gradually changing system, not only in its 
rapid growth due to its proximity to water, but its location within the 
floodplain due to the dynamic riverine environment. As a result of this 
dynamic riverine environment, it is not realistic to assume that any 
given breeding habitat patch will remain suitable over the long-term, 
or persist in the same location (USFWS 2002: 17), or always be used for 
the same purpose by flycatchers. Feeding sites and migration stopover 
areas are essential components of the flycatcher's survival, 
productivity, and health, and they can also be areas where new breeding 
habitat develops as established nesting sites are lost or degraded 
(USFWS 2002: 42). Thus, habitat that is not currently suitable for 
nesting at a specific time, but useful for foraging and/or migration 
can be essential to the conservation of the flycatcher. Therefore, the 
germination and growth of riparian vegetation (i.e. succession) in this 
dynamic environment is integral for developing and maintaining 
appropriate habitat for use by southwestern willow flycatchers.
    Based on our current knowledge of the life history and ecology of 
the southwestern willow flycatcher and the relationship of its 
essential life history functions to its habitat, as described below in 
the text supporting the PCEs, and in more detail in the Recovery Plan 
(USFWS 2002: Chapter II), it is important to recognize the combined 
nature of the relationships between river function, water, hydrology, 
floodplains, soils, aquifers, and plant growth to form and support the 
vegetation and insect populations (PCEs) important for the conservation 
of the southwestern willow flycatcher.
    The natural hydrologic regime (i.e., river flow frequency, 
magnitude, duration, and timing) and supply of (and interaction 
between) surface and subsurface water will be a driving factor in the 
maintenance, growth, recycling, and regeneration of southwestern willow 
flycatcher habitat (USFWS 2002:16). As streams reach the lowlands, 
their gradients typically flatten and surrounding terrain open into 
broader floodplains (USFWS 2002: 32). Combine this setting with the 
integrity of stream flow frequency, magnitude, duration, and timing 
(Poff et al. 1997), and conditions will occur that provide for proper 
river channel configuration, sediment deposition, periodic inundation, 
recharged aquifers, lateral channel movement, and elevated groundwater 
tables throughout the floodplain that develop flycatcher habitat (USFWS 
2002:16). Maintaining existing river access to the floodplain when 
overbank flooding occurs is integral to allow deposition of fine moist 
soils, water, nutrients, and seeds that provide essential material for 
plant germination and growth. An abundance and distribution of fine 
sediments extending farther laterally across the floodplain and deeper 
underneath the surface retains much more subsurface water, which in 
turn supplies water for the development of flycatcher habitat and 
micro-habitat conditions (USFWS 2002:16). The interconnected

[[Page 60910]]

interaction between groundwater and surface water contributes to the 
quality of riparian community (structure and plant species), and will 
influence the germination, density, vigor, composition, and ability to 
regenerate and maintain itself (AZ Department of Water Resources 1994).
    The areas designated as critical habitat provide riparian habitat 
for breeding, non-breeding, territorial, dispersing, and migrating 
southwestern willow flycatchers and to sustain southwestern willow 
flycatchers across their range. No areas are being designated as 
critical habitat solely because they serve as a migration corridor; 
rather areas designated serve a variety of functions that include use 
by southwestern willow flycatchers as migration habitat. The habitat 
components essential for conservation of the species were determined 
from studies of southwestern willow flycatcher behavior and habitat use 
throughout the birds range (USFWS 2002: Chapter II and Appendix D). Due 
to the natural history of this neotropical migrant and the dynamic 
nature of the riparian environments in which they are found (USFWS 
2002: Chapter II and Appendix D), one or more of the primary 
constituent elements described below are found throughout each of the 
specific areas that are being designated as critical habitat.

Space for Individual and Population Growth, and for Normal Behavior

    Streams of lower gradient and/or more open valleys with a wide/
broad floodplain are the geological settings that support willow 
flycatcher breeding habitat from near sea level to over 2438 m (8000 
ft) in southern CA, southern NV, southern UT, southern CO, AZ, and NM 
(USFWS 2002: 7). Lands with moist conditions which support riparian 
plant communities are areas that provide habitat for the southwestern 
willow flycatcher. Conditions like these develop in lower floodplains 
as well as where streams enter impoundments, either natural (e.g., 
beaver ponds) or human-made (reservoirs). Low-gradient stream 
conditions may also occur at high elevations, as in the marshy mountain 
meadows supporting flycatchers in the headwaters of the Little Colorado 
River near Greer, AZ, or the flat-gradient portions of the upper Rio 
Grande in south-central CO and northern NM (USFWS 2002: 32). Sometimes, 
the low-gradient wider floodplain exists only at the habitat patch 
itself, on streams that are generally steeper when viewed on the large 
scale (e.g., percent gradient over kilometers or miles) (USFWS 2002).
    Relatively steep, confined streams can also support flycatcher 
habitats (USFWS 2002: D-13). The San Luis Rey River in CA supports a 
substantial flycatcher population, and stands out among flycatcher 
habitats as having a relatively high gradient and being confined in a 
fairly narrow, steep-sided valley (USFWS 2002: D-13). It is important 
to note that even a steep, confined canyon or mountain stream may 
present local conditions where just a portion of a hectare or acre of 
flycatcher habitat may develop (USFWS 2002; D-13). Such sites are 
important individually, and in aggregate (USFWS 2002: D-13). 
Flycatchers are known to occupy very small, isolated habitat patches, 
and may occur in fairly high densities within those patches.
    Many willow flycatchers are found along riparian corridors during 
migration (McCabe 1991; Yong and Finch 1997, 2002; USFWS 2002; E-3, 
Koronkiwiecz et al. 2004; McLeod et al. 2005; Munzer et al. 2005). 
Migration stopover areas can be similar to breeding habitat (McCabe 
1991) or riparian habitats of less density and abundance than areas for 
nest placement (i.e., the vegetation structure is too short or sparse 
or the patch is too small) (USFWS 2002: E-3). For example, many 
locations where migrant willow flycatchers were detected on the lower 
Colorado River (Koronkewiecz et al. 2004; McLeod et al. 2005) and 
throughout AZ in 2004 (Munzer et al. 2005) were areas surveyed for 
nesting birds, but no breeding was detected. Such migration stopover 
areas, even though not used for breeding, are critically important 
resources affecting productivity and survival (USFWS 2002: E-3). The 
variety of riparian habitats occupied by migrant flycatchers range from 
smaller patches with shorter/sparser vegetation to larger, more complex 
breeding habitats.

Water

    Flycatcher nesting habitat is largely associated with perennial 
(i.e., persistent) stream flow that can support the expanse of 
vegetation characteristics needed by breeding flycatchers. However, 
flycatcher nesting habitat can also persist on intermittent (i.e., 
ephemeral) streams that retain local conditions favorable to riparian 
vegetation (USFWS 2002: D-12). The range and variety of stream flow 
conditions (frequency, magnitude, duration, and timing) (Poff et al. 
1997) that will establish and maintain flycatcher habitat can arise in 
different types of both regulated and unregulated flow regimes 
throughout its range (USFWS 2002: D-12). Also, flow conditions that 
will establish and maintain flycatcher habitat can be achieved in 
regulated streams, depending on scale of operation and the interaction 
of the primary physical characteristics of the landscape (USFWS 2002: 
D-12).
    In the Southwest, hydrological conditions at a flycatcher breeding 
site can vary remarkably within a season and between years (USFWS 2002: 
D-12). At some locations, particularly during drier years, water or 
saturated soil is only present early in the breeding season (i.e., May 
and part of June) (USFWS 2002: D-12). At other sites, vegetation may be 
immersed in standing water during a wet year, but be hundreds of meters 
from surface water in dry years (USFWS 2002: D-12). This is 
particularly true of reservoir sites such as the Kern River at Lake 
Isabella, CA, Roosevelt Lake, AZ, and Elephant Butte Reservoir, NM 
(USFWS 2002: D-12). Similarly, where a river channel has changed 
naturally there may be a total absence of water or visibly saturated 
soil for several years (Sferra et al. 1997). In such cases, the 
riparian vegetation and any flycatchers breeding within it may persist 
for several years (USFWS 2002: D-12).
    In some areas, natural or managed hydrologic cycles can create 
temporary flycatcher habitat, but may not be able to support it for an 
extended amount of time, or may support varying amounts of habitat at 
different points in the cycle. Some dam operations create varied 
situations that allow different plant species to thrive when water is 
released below a dam, held in a lake, or removed from a lakebed, and 
consequently, varying degrees of flycatcher habitat are available as a 
result of dam operations (USFWS 2002: 33).
    The riparian vegetation that constitutes southwestern willow 
flycatcher breeding habitat requires substantial water (USFWS 2002: D-
12). Because southwestern willow flycatcher breeding habitat is often 
where there is slow moving or still water, these slow and still water 
conditions may also be important in influencing the production of 
insect prey base for flycatcher food (USFWS 2002: D-12)

Sites for Germination or Seed Dispersal

    Subsurface hydrologic conditions may, in some places (particularly 
at the more arid locations of the Southwest), be equally important to 
surface water conditions in determining riparian vegetation patterns 
(Lichivar and Wakely 2004). Where groundwater levels are elevated to 
the point that riparian forest plants can directly access

[[Page 60911]]

those waters it can be an area for both breeding, and non-breeding, 
territorial, dispersing, foraging, and migrating southwestern willow 
flycatchers, and elevated groundwater helps create moist soil 
conditions believed to be important for nesting conditions and prey 
populations (USFWS 2002: 11 and 18), as further discussed below.
    Depth to groundwater plays an important part in the distribution of 
riparian vegetation (AZ Department of Water Resources 1994) and 
consequently, southwestern willow flycatcher habitat. The greater the 
depth to groundwater below the land surface, the less abundant the 
riparian vegetation (AZ Department of Water Resources 1994). Localized 
perched aquifers (i.e., a saturated area that sits above the main water 
table) can and do support some riparian habitat, but these systems are 
not extensive (AZ Department of Water Resources 1994).
    The abundance and distribution of fine sediment deposited on 
floodplains is critical for the development, abundance, distribution, 
maintenance, and germination of flycatcher habitat, and possibly 
conditions for successful breeding (USFWS 2002: 16). Fine sediments 
provide seed beds for flycatcher habitat. In almost all cases, moist or 
saturated soil is present at or near breeding sites during wet or non-
drought years (USFWS 2002: 11). The saturated soil and adjacent surface 
water may be present early in the breeding season, but only damp soil 
is present by late June or early July (Muiznieks et al. 1994; USFWS 
2002: D-3). Microclimate features (i.e., temperature and humidity) 
facilitated by moist/saturated soil, are believed to play an important 
role where flycatchers are detected and nest, their breeding success, 
and availability/abundance of food resources (USFWS 2002).

Reproduction and Rearing of Offspring

    Southwestern willow flycatchers nest in thickets of trees and 
shrubs ranging in height from 2 m to 30 m (6 to 98 ft) (USFWS 2002: D-
3). Lower-stature thickets (2-4 m or 6-13 ft tall) tend to be found at 
higher elevation sites, with tall-stature habitats at middle- and 
lower-elevation riparian forests (USFWS 2002: D-2). Nest sites 
typically have dense foliage at least from the ground level up to 
approximately 4 m (13 ft) above ground, although dense foliage may 
exist only at the shrub level, or as a low, dense tree canopy (USFWS 
2002: D-3).
    Riparian habitat characteristics such as dominant plant species, 
size and shape of habitat patches, tree canopy structure, vegetation 
height, and vegetation density are essential qualities of southwestern 
willow flycatcher breeding habitat, although they may vary widely at 
different sites (USFWS 2002: D-1). The accumulating knowledge of 
flycatcher breeding sites reveals important areas of similarity which 
constitute the basic concept of what is suitable breeding habitat 
(USFWS 2002: D-2). These habitat features are generally discussed 
below.
    Regardless of the plant species composition or height, breeding 
sites usually consist of dense vegetation in the patch interior, or an 
aggregate of dense patches interspersed with openings (USFWS 2002: 11). 
In most cases this dense vegetation occurs within the first 3 to 4 m 
(10 to 13 ft) above ground (USFWS 2002: 11). These dense patches are 
often interspersed with small openings, open water or marsh, or 
shorter/sparser vegetation, creating a mosaic that is not uniformly 
dense (USFWS 2002: 11).
    Common tree and shrub species currently known to comprise nesting 
habitat include Goodings willow (Salix gooddingii), coyote willow 
(Salix exigua), Geyers willow (Salix geyerana), arroyo willow (Salix 
lasiolepis), red willow (Salix laevigata), yewleaf willow (Salix 
taxifolia), pacific willow (Salix lasiandra), boxelder (Acer negundo), 
tamarisk (Tamarix ramosissima), and Russian olive (Eleagnus 
angustifolia) (USFWS 2002: D-2, 11). Other plant species used for 
nesting have been buttonbush (Cephalanthus occidentalis), cottonwood, 
stinging nettle (Urtica dioica), alder (Alnus rhombifolia, Alnus 
oblongifolia, Alnus tenuifolia), velvet ash (Fraxinus velutina), poison 
hemlock (Conium maculatum), blackberry (Rubus ursinus), seep willow 
(Baccharis salicifolia, Baccharis glutinosa), oak (Quercus agrifolia, 
Quercus chrysolepis), rose (Rosa californica, Rosa arizonica, Rosa 
multiflora), sycamore (Platinus wrightii), giant reed (Arundo donax), 
false indigo (Amorpha californica), Pacific poison ivy (Toxicodendron 
diversilobum), grape (Vitus arizonica), Virginia creeper 
(Parthenocissus quinquefolia), Siberian elm (Ulmus pumila), and walnut 
(Juglans hindsii) (USFWS 2002: D-3, 5, and 9). Other species used by 
nesting southwestern willow flycatchers may become known over time as 
more studies and surveys occur.
    Nest sites typically have a dense tree and/or shrub canopy (USFWS 
2002: D-3). Canopy density (the amount of cover provided by tree and 
shrub branches measured from the ground) at various nest sites ranged 
from 50 percent to 100 percent.
    Southwestern willow flycatcher breeding habitat can be generally 
organized into three broad habitat types--those dominated by native 
vegetation (willow and cottonwood), by exotic (i.e., non-native) 
vegetation (salt cedar), and those with mixed native and exotic plants 
(salt cedar and willow). These broad habitat descriptors reflect the 
fact that southwestern willow flycatchers inhabit riparian habitats 
dominated by both native and non-native plant species. Salt cedar and 
Russian olive are two exotic plant species used by flycatchers for nest 
placement and also foraging and shelter (USFWS 2002: D-4).
    The riparian patches used by breeding flycatchers vary in size and 
shape (USFWS 2002: D-2). They may be relatively dense, linear, 
contiguous stands or irregularly-shaped mosaics of dense vegetation 
with open areas (USFWS 2002: D-2 and 11). Southwestern willow 
flycatchers have been recorded nesting in patches as small as 0.1 ha 
(0.25 ac) along the Rio Grande (Cooper 1997), and as large as 70 ha 
(175 ac) in the upper Gila River in NM (Cooper 1997). The mean reported 
size of flycatcher breeding patches was 8.6 ha (21.2 ac). The majority 
of sites were toward the smaller end, as evidenced by a median patch 
size of 1.8 ha (4.4 ac) (USFWS 2002: 17). Mean patch size of breeding 
sites supporting 10 or more flycatcher territories was 24.9 ha (62.2 
ac). Aggregations of occupied breeding patches within a breeding site 
may create a riparian mosaic as large as 200 ha (494 ac) or more, such 
as at the Kern River (Whitfield 2002), Roosevelt Lake (Paradzick et al. 
1999) and Lake Mead (McKernan 1997).
    Flycatchers often cluster their territories into small portions of 
riparian sites (Whitfield and Enos 1996; Paxton et al. 1997; Sferra et 
al. 1997; Sogge et al. 1997), and major portions of the site may be 
occupied irregularly or not at all. Recent habitat modeling based on 
remote sensing and GIS data has found that breeding site occupancy at 
reservoir sites in AZ is influenced by vegetation characteristics of 
habitat adjacent to the actual nesting areas (Hatten and Paradzick 
2003); therefore, areas adjacent to nest sites can be an important 
component of a breeding site. How size and shape of riparian patches 
relate to factors such as flycatcher nest site selection and fidelity, 
reproductive success, predation, and brood parasitism is unknown (USFWS 
2002: D-11).
    Flycatchers are generally not found nesting in confined floodplains 
(i.e., those bound within a canyon) (Hatten

[[Page 60912]]

and Paradzick 2003) or where only a single narrow strip of riparian 
vegetation less than approximately 10 m (33 ft) wide develops (USFWS 
2002: D-11). While riparian vegetation too mature, immature, or of 
lesser quality in abundance and breadth may not be used for nesting, it 
can be used by breeders for foraging (especially if it extends out from 
larger patches) or during migration for foraging, cover, and shelter 
(Sogge and Tibbitts 1994; Sogge and Marshall 2000).

Food

    The willow flycatcher is somewhat of an insect generalist (USFWS 
2002: 26), taking a wide range of invertebrate prey including flying, 
and ground-, and vegetation-dwelling species of terrestrial and aquatic 
origins (Drost et al. 2003). Wasps and bees (Hymenoptera) are common 
food items, as are flies (Diptera), beetles (Coleoptera), butterflies/
moths and caterpillars (Lepidoptera), and spittlebugs (Homoptera) (Beal 
1912; McCabe 1991). Plant foods such as small fruits have been reported 
(Beal 1912; Roberts 1932; Imhof 1962), but are not a significant food 
during the breeding season (McCabe 1991). Diet studies of adult 
southwestern willow flycatchers (Drost et al. 1997; DeLay et al. 1999) 
found a wide range of prey taken. Major prey items were small (flying 
ants) (Hymenoptera) to large (dragonflies) (Odonata) flying insects, 
with, Diptera and Hemiptera (true bugs) comprising half of the prey 
items. Willow flycatchers also took non-flying species, particularly 
Lepidoptera larvae. From an analysis of southwestern willow flycatcher 
diet along the South Fork of the Kern River, CA, (Drost et al. 2003) 
flycatchers consumed a variety of prey from 12 different insect groups. 
Willow flycatchers have been identified targeting seasonal hatchings of 
aquatic insects along the Salt River arm of Roosevelt Lake, AZ (E. 
Paxton, USGS, e-mail).
    Southwestern willow flycatcher food availability may be largely 
influenced by the density and species of vegetation, proximity to and 
presence of water, saturated soil levels, and microclimate features 
such as temperature and humidity (USFWS 2002). Flycatchers forage 
within and above the canopy, along the patch edge, in openings within 
the territory, over water, and from tall trees as well as herbaceous 
ground cover (Bent 1960; McCabe 1991). Willow flycatchers employ a 
``sit and wait'' foraging tactic, with foraging bouts interspersed with 
longer periods of perching (Prescott and Middleton 1988).
    Pursuant to our regulations, we are required to identify the known 
physical and biological features or PCEs, essential to the conservation 
of the southwestern willow flycatcher, together with a description of 
any critical habitat that is designated. Based on our current knowledge 
of the life history, biology, and ecology of the species and the 
requirements of the habitat to sustain the essential life history 
functions of the species, we have determined that the southwestern 
willow flycatcher's primary constituent elements are:
    (1) Riparian habitat in a dynamic successional riverine environment 
(for nesting, foraging, migration, dispersal, and shelter) that 
comprises:
    (a) Trees and shrubs that include Gooddings willow (Salix 
gooddingii), coyote willow (Salix exigua), Geyers willow (Salix 
geyerana), arroyo willow (Salix lasiolepis), red willow (Salix 
laevigata), yewleaf willow (Salix taxifolia), pacific willow (Salix 
lasiandra), boxelder (Acer negundo), tamarisk (Tamarix ramosissima), 
Russian olive (Eleagnus angustifolia), buttonbush (Cephalanthus 
occidentalis), cottonwood (Populus fremontii), stinging nettle (Urtica 
dioica), alder (Alnus rhombifolia, Alnus oblongifolia, Alnus 
tenuifolia), velvet ash (Fraxinus velutina), poison hemlock (Conium 
maculatum), blackberry (Rubus ursinus), seep willow (Baccharis 
salicifolia, Baccharis glutinosa), oak (Quercus agrifolia, Quercus 
chrysolepis), rose (Rosa californica, Rosa arizonica, Rosa multiflora), 
sycamore (Platinus wrightii), false indigo (Amorpha californica), 
Pacific poison ivy (Toxicodendron diversilobum), grape (Vitus 
arizonica), Virginia creeper (Parthenocissus quinquefolia), Siberian 
elm (Ulmus pumila), and walnut (Juglans hindsii).
    (b) Dense riparian vegetation with thickets of trees and shrubs 
ranging in height from 2 m to 30 m (6 to 98 ft). Lower-stature thickets 
(2 to 4 m or 6 to 13 ft tall) are found at higher elevation riparian 
forests and tall-stature thickets are found at middle- and lower-
elevation riparian forests;
    (c) Areas of dense riparian foliage at least from the ground level 
up to approximately 4 m (13 ft) above ground or dense foliage only at 
the shrub level, or as a low, dense tree canopy;
    (d) Sites for nesting that contain a dense tree and/or shrub canopy 
(the amount of cover provided by tree and shrub branches measured from 
the ground) (i.e., a tree or shrub canopy with densities ranging from 
50 percent to 100 percent);
    (e) Dense patches of riparian forests that are interspersed with 
small openings of open water or marsh, or shorter/sparser vegetation 
that creates a mosaic that is not uniformly dense. Patch size may be as 
small as 0.1 ha (0.25 ac) or as large as 70 ha (175 ac); and
    (2) A variety of insect prey populations found within or adjacent 
to riparian floodplains or moist environments, including: flying ants, 
wasps, and bees (Hymenoptera); dragonflies (Odonata); flies (Diptera); 
true bugs (Hemiptera); beetles (Coleoptera); butterflies/moths and 
caterpillars (Lepidoptera); and spittlebugs (Homoptera).
    The discussion above outlines those physical and biological 
features essential to the conservation of the southwestern willow 
flycatcher and presents our rationale as to why those features were 
selected. The primary constituent elements described above are results 
of the dynamic river environment that germinates, develops, maintains, 
and regenerates the riparian forest and provides food for breeding, 
non-breeding, dispersing, territorial, and migrating southwestern 
willow flycatchers. Anthropogenic factors such as dams, irrigation 
ditches, or agricultural field return flow can assist in providing 
conditions that support flycatcher habitat. Because the flycatcher 
exists in disjunct breeding populations across a wide geographic and 
elevation range, and is subject to dynamic events, critical habitat 
river segments described below are essential for the flycatcher to 
maintain metapopulation stability, connectivity, gene flow, and protect 
against catastrophic loss. All river segments designated as 
southwestern willow flycatcher critical habitat are within the 
geographical area occupied by the species and contain at least one of 
the primary constituent elements. It is important to recognize that the 
PCEs are present throughout the river segments selected (PCE 1a and 2), 
but the specific quality of riparian habitat for nesting (PCE 1b, 1c, 
1d, 1e), migration (PCE 1), foraging (PCE 1 and 2), and shelter (PCE 1) 
will not remain constant in their condition or location over time due 
to succession (i.e., plant germination and growth) and the dynamic 
environment in which they exist.

Criteria Used To Identify Critical Habitat

    We are designating critical habitat on lands that (1) we have 
determined are occupied at the time of listing and contain the primary 
constituent elements of the southwestern willow

[[Page 60913]]

flycatcher, and (2) in some instances, designated areas not known to be 
within the geographical area occupied at the time of listing, but have 
been determined to be essential to the conservation of the species. See 
the Justification of Including Areas Not Known To Be Within the 
Specific Geographical Area Occupied by the Species at the Time of 
Listing section below for our rationale for including such areas. This 
critical habitat designation focuses on providing riparian habitat for 
breeding, non-breeding, territorial, dispersing, and migrating 
southwestern willow flycatchers, thus promoting the conditions for 
maintaining self-sustaining southwestern willow flycatcher populations 
and metapopulations across their range in areas of AZ, CA, NM, NV, CO, 
and UT. Since southwestern willow flycatchers are found in a variety of 
ecologically and geographically disjunct areas that are prone to 
disturbance, it is important to preserve metapopulation stability, 
connectivity, gene flow, and protect against catastrophic loss for 
populations distributed across a large geographic and elevational 
range, as well as the variety of ecological environments in which it 
lives.
    To identify areas containing features essential to the conservation 
of the southwestern willow flycatcher, we first considered the Recovery 
Plan's strategy, rationale, and science behind the conservation of the 
flycatcher and removing the threat of extinction (USFWS 2002: 61-95). 
This led to us to focus on the wide, but irregular distribution of this 
bird, the dynamic nature of its habitat, and scientific principles 
behind southwestern willow flycatcher metapopulation stability, gene 
flow, ecological connectivity among disjunct populations, and 
prevention of catastrophic losses (USFWS 2002: 61-95). In addition, 
information provided during the comment periods for this proposed rule 
and the draft economic and draft NEPA analyses were evaluated and 
considered in the development of the final designation for southwestern 
willow flycatcher.
    The Recovery Plan (USFWS 2002: 61-95) identifies important factors 
to consider in minimizing the likelihood of extinction: (1) Populations 
should be distributed throughout the bird's range; (2) populations 
should be distributed close enough to each other to allow for movement 
among them; (3) large populations contribute most to metapopulation 
stability; smaller populations can contribute to metapopulation 
stability when arrayed in a matrix with high connectivity; (4) as the 
population of a site increases, the potential to disperse and colonize 
increases; (5) increase/decrease in one population affects other 
populations; (6) some Recovery/Management Units have stable 
metapopulations, others do not; (7) maintaining/augmenting existing 
populations is a greater priority than establishing new populations; 
and (8) establishing habitat close to existing breeding sites increases 
the chance of colonization.
    The Recovery Plan (USFWS 2002) outlined a recommended recovery 
strategy for the southwestern willow flycatcher. We reviewed and 
considered the pertinent information contained in the Recovery Plan 
(USFWS 2002) in developing this critical habitat designation because it 
represents a compilation of the best scientific data available to us. 
We are required to base listing and critical habitat decisions on the 
best scientific and commercial data available (16 U.S.C. 
1533(b)(1)(A)). We may not delay making our determinations until more 
information is available, nor can we be required to gather more 
information before making our determination (Southwest Center for 
Biological Diversity v. Babbitt, 215 F. 3d 58 (D.C. Cir. 2000)). This 
critical habitat designation focuses on those Recovery Plan 
recommendations that we believe are important in determining areas that 
have essential features for the conservation of the species.
    The focus of this designation is a conservation strategy which 
relies on protecting large populations as well as small populations 
with high connectivity (USFWS 2002: 74 to 75). Large populations, 
centrally located, contribute the most to metapopulation stability, 
especially if other breeding populations are nearby (USFWS 2002: 74). 
Large populations persist longer than small ones, and produce more 
dispersers capable of emigrating to other populations or colonizing new 
areas (USFWS 2002: 74). Smaller populations in high connectivity can 
provide as much or more stability than a single isolated population 
with the same number of territories because of the potential to 
disperse colonizers throughout the network of sites (USFWS 2002: 75). 
This approach for defining critical habitat areas supports other key 
central strategies tied to flycatcher conservation identified in the 
Recovery Plan (USFWS 2002: 74 to 76) such as: (1) Populations should be 
distributed close enough to each other to allow for movement; (2) 
maintaining/augmenting existing populations is a greater priority than 
establishing new populations; and (3) a population's increase improves 
the potential to disperse and colonize.
    Because large populations, as well as small populations with high 
connectivity, contribute the most to metapopulation stability (USFWS 
2002: 74), we identified these areas to help guide the delineation of 
areas with features essential to the conservation of the southwestern 
willow flycatcher (i.e., critical habitat). This rule defines a large 
population as a single site or collection of smaller connected sites 
that support 10 or more territories. We chose the baseline survey 
period as the time from 1993 to 2003 (USFWS 2002: 23; Sogge et al. 
2003; U.S. Geological Survey 2003; Smith et al. 2004; S.O. Williams, 
NMGFD, e-mail 2004). This includes all known reliable survey 
information that is available to us. We chose 10 or more territories to 
identify a large population area because the population viability 
analysis and the expertise of the Technical Recovery Team indicates a 
breeding site exhibits greatest long-term stability with at least 10 
territories (Lamberson et al. 2000; USFWS 2002: 72).
    We are designating stream ``segments'' as critical habitat for the 
southwestern willow flycatcher. The reaches designated provide for 
flycatcher habitat (nesting, foraging, migrating, regenerating, etc.) 
and allows for the changes in habitat locations or conditions from 
those that exist presently. The actual riparian habitat in these areas 
is expected to expand, contract, or change as a result of flooding, 
drought, inundation, and changes in floodplains and river channels 
(USFWS 2002: 18, D-13 to 15) that result from current flow management 
practices and priorities. Stream segments include breeding sites in 
high connectivity and other essential flycatcher habitat components 
needed to conserve the subspecies. Those other essential components of 
flycatcher habitat (foraging habitat, habitat for non-breeding 
flycatchers, migratory habitat, regenerating habitat, streams, elevated 
groundwater tables, moist soils, flying insects, and other alluvial 
floodplain habitats, etc.) adjacent to or between sites, along with the 
dynamic process of riparian vegetation succession and river hydrology, 
provide current and future habitat for the flycatcher which is 
dependent upon vegetation succession. As a result, these segments 
represent the boundaries within which flycatcher habitat of all types 
currently persist, and due to dynamic river processes, is expected to 
persist over time. We used expert opinion, location of territories, 
habitat models, existing dam and river operations, and the physical and

[[Page 60914]]

biological features essential to flycatcher conservation to determine 
the boundaries of each river segment that would be proposed as critical 
habitat for the subspecies.
    In order to determine the degree of connectivity to assign 
populations, we examined the known between-year within-drainage (same 
river drainage) and between-drainage (separate river drainages) 
movements of southwestern willow flycatchers (Luff et al. 2000; Kenwood 
and Paxton 2002; USFWS 2002; Newell et al. 2003, 2005; E. Paxton, USGS, 
e-mail). Using banding studies from 1997 to 2003 which were focused in 
central AZ, scientists re-sighted 292 banded southwestern willow 
flycatchers that, between years, moved within the same river drainage 
and to different river drainages (Luff et al. 2000; Kenwood and Paxton 
2001; E. Paxton, USGS, e-mail). Most recorded between-year movements (n 
= 267) occurred within the same river drainage from 1.6 to 29 km (1 and 
18 mi), but movements ranging from 40 km (25 mi) to as far as 440 km 
(276 mi) were recorded for movements occurring between different river 
drainages (Luff et al. 2000; Kenwood and Paxton 2001; E. Paxton, USGS, 
e-mail). Flycatchers are not restricted to within river drainage 
movements, but longer distance movements were infrequent and would not 
be indicative of highly connected populations (USFWS 2002: 22, E. 
Paxton, USGS, e-mail). Therefore, as a result of the known movements of 
banded southwestern willow flycatchers, the ability of birds to move 
between drainages, and the intent to capture collections of small 
separate breeding sites, we chose a 29 km (18 mi) radius as the 
distance to identify the high connectivity of collections of flycatcher 
breeding sites.
    As a result of defining the degree of connectivity to assign 
populations, we identified territories (with a minimum of 10 
territories) and areas containing features essential to the subspecies' 
conservation or areas defined as essential habitat within a 29 km (18 
mi) radius of each other to include as proposed critical habitat. This 
approach captures habitat for the persistence of the largest and most 
stable breeding populations in the best habitat throughout the 
subspecies' range. These populations within these areas provide 
metapopulation stability, gene flow, connectivity, and protects against 
catastrophic losses. The large breeding populations found within these 
segments provide dispersers that can colonize new breeding sites within 
and outside of designated critical habitat. These segments also capture 
habitat with features essential for non-breeding, dispersing, 
migrating, and territorial southwestern willow flycatchers. As a result 
of using this radius to identify areas containing features essential to 
the subspecies' conservation or areas defined as essential habitat, it 
accounts for the dynamic aspects of riparian habitat and allows for a 
change in location, distribution, abundance, and quality of flycatcher 
habitat over time.
    Large populations or small populations with high connectivity did 
not exist throughout the entire range of the bird (USFWS 2002: 30-33; 
84 (Table 9)). For example, in the Amargosa, Santa Cruz, Hassayampa/
Agua Fria, San Juan, Lower Rio Grande, and Powell Flycatcher Management 
Units there are no large sites with 10 or more territories, nor are any 
known territories in these Units in high connectivity (less than 29 km/
18 mi) with a large population (greater than 10 territories). We are 
not designating these areas as critical habitat because the areas do 
not meet the criteria that we established for containing essential 
features or essential habitat.
    We adjusted the methodology used to determine essential habitat in 
the Coastal CA Recovery Unit. Unlike the other Recovery Units in the 
flycatcher's range, streams in the Coastal CA Recovery Unit are located 
in closer proximity to each other and territories exist on a greater 
number of streams. As a result, flycatcher breeding sites in this 
Recovery Unit are almost all located in close proximity to one another. 
Because of this, our methodology could not distinguish habitat with 
essential features for the flycatcher. This caused us to further 
scrutinize stream segments in these Management Units to determine which 
had essential features for the flycatcher and which ones did not. In 
order to do that, we had to rely on Recovery Plan recommendations, 
distribution and abundance of territories, conservation goals, habitat 
quality, and expert opinion to determine those segments with essential 
features for this critical habitat designation.
    Our approach in these Coastal CA Management Units was to still 
target large populations and smaller breeding sites that together 
equaled a large population. In the Santa Ynez, Santa Ana, and San Diego 
Management Units we selected segments from streams with large 
populations (Santa Ynez, Santa Ana, Santa Margarita and San Luis Rey 
Rivers). In addition to these stream segments with large populations, 
we selected other nearby stream segments with high quality habitat and 
smaller numbers of territories to provide for population connectivity, 
metapopulation stability, population growth, and protection against 
catastrophic loss. We however, omitted some locations with lone 
territories that were not believed to be essential. These omitted 
locations were, compared to other habitat segments, believed to be of 
lesser quality and did not contribute as much to connectivity, 
stability, or protect against catastrophic loss. Consequently, there 
are stream segments in the Coastal CA Recovery Unit, specifically in 
the Santa Ana and San Diego Management Units in CA, where lone 
territories exist that fell within the 29 km (18 mi) radius, but are 
not being designated as critical habitat because they, when considered 
within the entire range of habitats and stream segments selected in the 
Coastal CA Recovery Units, are not believed to be essential for 
inclusion in this critical habitat designation.

Lateral Extent

    In order to determine the lateral extent of critical habitat for 
the flycatcher, we considered the variety of purposes riparian habitat 
serves the southwestern willow flycatcher, the dynamic nature of rivers 
and riparian habitat, the relationship between the location of rivers, 
flooding, and riparian habitat, and the expected boundaries, over time, 
of these habitats.
    Southwestern willow flycatchers use riparian habitat in a variety 
of conditions for breeding, feeding, sheltering, cover, dispersal, and 
migration stopover areas. Riparian habitat is dependent on the location 
of river channels, floodplain soils, subsurface water, floodplain 
shape, and is driven by the wide variety of high, medium, and low flow 
events. Rivers can and do move from one side of the floodplain to the 
other. Flooding occurs at periodic frequencies that recharge aquifers 
and deposit and moisten fine floodplain soils that create seedbeds for 
riparian vegetation germination and growth within these boundaries.
    Over time, flycatcher habitat is expected to change its location 
(Dockens and Paradzick 2004) as a result of shifting river channels, 
flooding, drought, springs, seeps, and other factors such as 
agricultural run-off, diversions, dam operations, and modifications of 
riverbeds, etc. The methodology that we used to generate river segments 
and map the river channel and associated alluvial areas within the 
riparian zone is intended to identify locations where dynamic river 
functions exist that create and maintain southwestern willow flycatcher 
habitat for nesting, feeding, sheltering, cover, dispersal, and 
migration.

[[Page 60915]]

    In this designation, we consider the riparian zone to be the area 
surrounding the select river segment which is directly influenced by 
river functions. The boundaries of the lateral extent or riparian zone 
(i.e., the surrogate for the delineation of the lateral boundaries of 
critical habitat) were derived by one of two methods. The area was 
either captured from existing digital data sources (listed below) or 
created through expert visual interpretation of remotely sensed data 
(aerial photographs and satellite imagery--also listed below). 
Geographic Information System (GIS) technology was utilized throughout 
the lateral extent determination. ESRI, Inc. ArcInfo 8.3 was used to 
perform all mapping functions and image interpretation.
    Pre-existing data sources used to assist in the process of 
delineating the lateral extent of the riparian zones for this 
designation included: (1) National Wetlands Inventory (NWI) digital 
data from the mid 1980's, 2001, 2002; (2) Federal Emergency Management 
Agency (FEMA) 1995, Q3 100 year flood data; (3) U.S. Census Bureau 
Topologically Integrated Geographic Encoding and Referencing; and (4) 
(TIGER) 2000 digital data.
    Where pre-exiting data may not have been available to readily 
define riparian zones, visual interpretation of remotely sensed data 
was used to define the lateral extent. Data sources used in this 
included: (1) Terraserver online Digital Orthophoto Quarter Quads 
(DOQQs), black & white, 1990's era and 2001 (2) U.S. Geological Survey 
(USGS) DOQQs 1997: (3) USGS aerial photographs, 1 meter, color-
balanced, and true color, 2002; (4) Landsat 5 and Landsat 7 Thematic 
Mapper, bands 4, 2, 3, 1990-2000 (5) Emerge Corp, 1 meter, true color 
imagery, 2001; (6) Local Agency Partnership, 2 foot, true color, 2000; 
and (7) National Wetlands Inventory aerial photographs, 2001-2002.
    We refined all lateral extents for this designation by creating 
electronic maps of the lateral extent and attributing them according to 
the following riparian sub-classifications. Riparian developed areas, 
as defined below, are not included in our critical habitat designation 
since these areas do not contain the primary constituent elements (see 
``Primary Constituent Elements'' section above) and, therefore, do not 
meet the definition of critical habitat.
    (1) Riparian Vegetated: This class is used to describe areas which 
can still support southwestern willow flycatcher habitat and features 
essential to the subspecies' conservation (i.e., riparian forest, 
vegetated and unvegetated wetlands, water bodies, any undeveloped or 
unmanaged lands within the approximate riparian zone). Some of these 
areas may encompass man-made features which support flycatcher habitat 
such as ditches or canals.
    (2) Riparian Developed: This class is used to describe all 
developed areas found within the boundary of critical habitat with 
existing physical infrastructure features that do not contain the PCEs 
to support southwestern willow flycatcher habitat. Developed lands 
include, urban/suburban development, agricultural fields, utility 
structures, roads, mining/extraction pits, cement pads, and landscaped 
residential areas which no longer contain the ability to develop the 
PCEs.

Critical Habitat Designation

    Critical habitat for the southwestern willow flycatcher is being 
designated across a wide portion of the subspecies' range and is 
organized in Management Units (as described in the Recovery Plan). We 
are designating stream segments in 15 Management Units found in 5 
Recovery Units as critical habitat for the southwestern willow 
flycatcher and excluding or exempting from this designation various 
river or stream segments previously proposed as critical habitat within 
many of those units. For those areas that have been excluded or 
exempted, a brief description of the segment is included and why it is 
being excluded or exempted. More thorough discussions are provided in 
the Exclusions under Section 4(a)(3) and 4(b)(2)of the Act and Summary 
of Changes from the Proposed Rule portions of this rule. The stream 
segments designated occur in southern CA, southern NV, southwestern UT, 
AZ, and NM. Lands we are designating are under private, local agency, 
county, State, Tribal, and Federal ownership.
    In the development of southwestern willow flycatcher critical 
habitat, we determined which lands have features essential to the 
conservation of the species by defining the physical and biological 
features essential to the species' conservation and delineating the 
specific areas containing them. We then evaluated those lands 
determined to have essential features to ascertain if any specific 
areas are appropriate for exemption or exclusion from critical habitat 
pursuant to either sections 4(a)(3) or 4(b)(2) of the Act. On the basis 
of our evaluation, we have determined that the benefits of excluding 
certain approved HCPs, lands owned and managed by the Department of 
Defense, State and Federal Wildlife Areas, National Wildlife Refuges, 
and Tribal and private lands under appropriate management for the 
southwestern willow flycatcher outweighs the benefits of their 
inclusion. We have subsequently excluded those lands from southwestern 
willow flycatcher critical habitat pursuant to section 4(a)(3) and 
4(b)(2) of the Act (refer to Exclusions under Section 4(b)(2) of the 
Act section below).
    The resulting designation, after exclusions and exemptions, is a 
subset of lands that have features essential to the conservation of the 
southwestern willow flycatcher or lands determined to be essential to 
the conservation of the subspecies. Following exclusions and exemptions 
some proposed river segments are completely removed, some are 
effectively divided in half, and others had a variety of sections 
removed. In a few cases, after exclusion or exemption, such a small 
piece of the segment is left, that it was removed from critical habitat 
because in the context of the protected segment, it was no longer 
essential. In those instances, we provide an explanation below of those 
small sections.
    The value and purpose of each segment to flycatcher conservation 
are shared throughout the designation; segments provide riparian 
habitat for breeding, migrating, non-breeding, territorial, and 
dispersing southwestern willow flycatchers. This is especially true due 
to the dynamic nature of riparian habitat and the variety of purposes 
and conditions that are used by the flycatcher for life-history needs. 
A location in these segments that has a specific purpose today, such as 
a breeding site, foraging location, or areas used for migration or 
dispersal, can change over time (sometimes within a year or over a few 
years). Changes can occur due to flooding, drought, fire, or choices in 
land management. These changes can result in an increase or decrease in 
habitat suitability, growth, and location depending on which influence 
is exercised. Current breeding site locations, with few exceptions, are 
described in the Recovery Plan with a code describing (USFWS 2002: 
Figs. 3-11, 67-71) its general location. In this designation's proposal 
(69 FR 60706), we described each segment and the most recent known 
distribution of sites and territories.
    The critical habitat areas described below constitute our best 
assessment of the areas: (1) With essential habitat features within the 
geographical area occupied by the species at the time of listing; (2) 
that contain the PCEs; and (3) that may require special management. 
Although all of the segments are within

[[Page 60916]]

the geographical area occupied by the species, we are not designating 
all of the areas known to be occupied by the southwestern willow 
flycatcher. We provide separate discussions on (1) the reasons why 
these segments contain features essential for the conservation of the 
southwestern willow flycatcher; (2) special management considerations 
for these Units; and (3) if a unit was not known to be occupied at the 
time of listing, we have described why we have determined the segment 
to be essential to the conservation of the species.

Special Management Considerations or Protection

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations or protection. As we undertake the process of 
designating critical habitat for a species, we first evaluate lands 
defined by those physical and biological features essential to the 
conservation of the species for inclusion in the designation pursuant 
to section 3(5)(A) of the Act. Secondly, we then evaluate lands defined 
by those features to assess whether they may require special management 
considerations or protection. As discussed throughout this rule, the 
southwestern willow flycatcher and its habitat are threatened by a 
multitude of factors occurring at once. Threats to those features that 
define essential habitat (PCEs) are caused by various factors.
    We believe the areas designated as critical habitat will require 
some level of management and/or protection to address the current and 
future threats to southwestern willow flycatchers and maintain the PCEs 
essential to its conservation in order to ensure the overall 
conservation of the species. Areas in need of management include not 
only the immediate locations where the species may be present, but 
additional areas adjacent to these that can provide for normal 
population fluctuations and/or habitat succession that may occur in 
response to natural and unpredictable events. The southwestern willow 
flycatcher may be dependent upon habitat components beyond the 
immediate areas where individuals of the species occur if they are 
important in maintaining ecological processes such as hydrology; stream 
flow; hydrologic regimes; plant germination, growth, maintenance, 
regeneration (succession); sedimentation; groundwater elevations; plant 
health and vigor; or maintenance of prey populations. The designation 
of critical habitat does not imply that lands outside of critical 
habitat do not play an important role in the conservation of the 
flycatcher. Federal activities outside of critical habitat are still 
subject to review under section 7 of the Act if they may affect the 
flycatcher or its critical habitat (such as groundwater pumping, 
developments, watershed condition, etc.). Prohibitions of section 9 of 
the Act also continue to apply both inside and outside of designated 
critical habitat.
    A detailed discussion of threats to the southwestern willow 
flycatcher and its habitat can be found in the final listing rule (60 
FR 10694, February 27, 1995), the previous critical habitat designation 
(62 FR39129, July 22, 1997), and the final Recovery Plan (August 2002). 
Special management that may be needed for the southwestern willow 
flycatcher is briefly summarized below:
    (1) Manage fire to maintain and enhance habitat quality and 
quantity. Suppress fires that occur. Restore groundwater, base flows, 
flooding, and natural hydrologic regimes to prevent flammable exotic 
species from developing and reducing fire risk. Reduce recreational 
fires.
    (2) Manage biotic elements and processes. Manage livestock grazing 
to increase flycatcher habitat quality and quantity by determining 
appropriate areas, seasons, and use constituent within the natural 
historical norm and tolerances. Reconfigure grazing units, improve 
fencing, and improve monitoring and documentation of grazing practices. 
Manage wild and feral ungulates to restore desired processes to 
increase flycatcher habitat quality and quantity. Manage keystone 
species such as beaver to restore desired processes to increase habitat 
quality and quantity.
    (3) Manage exotic plant species such as tamarisk or Russian olive 
by reducing conditions that allow exotics to be successful, and 
restoring or re-establishing conditions that allow native plants to 
thrive. To a large extent, abundance of exotic plants is a symptom of 
land management (groundwater withdrawal, surface water diversion, dam 
operation, over grazing) that has created conditions favorable to 
exotics over native plants. Eliminate or reduce dewatering stressors 
such as surface water diversion and groundwater pumping to increase 
stream flow and groundwater elevations. Reduce salinity levels by 
modifying agricultural practices and restoring natural hydrologic 
regimes and flushing flood flows. Restore natural hydrologic regimes 
that favor germination and growth of native plant species. Improve 
timing of water draw down in lake bottoms to coincide with the seed 
dispersal and germination of native species. Restore ungulate herbivory 
to intensities and levels under which native riparian species are more 
competitive.
    (4) Retain native riparian vegetation in the floodplain. Prevent 
clearing channels for flood flow conveyance or plowing of flood plains. 
Manage projects to minimize clearing of native vegetation will help 
ensure that the desired native species persist.
    (5) Exotic plant species removal and native plant restoration 
should be evaluated and conducted on a site-by-site basis. If habitat 
assessment reveals sustained increase in exotic abundance, conduct 
habitat evaluation of underlying causes and conduct restoration 
pursuant to measures described in the Plan. Remove exotics only if: 
Underlying causes for dominance have been addressed; there is evidence 
that exotic species will be replaced by vegetation of higher functional 
value; and the action is part of an overall restoration plan. 
Restoration plans should include at least; a staggered approach to 
create mosaics of different aged successional stands; and consideration 
of whether the sites are presently occupied by nesting flycatchers. 
Biocontrol agents should not be used within the occupied range of the 
southwestern willow flycatcher.
    (6) Protect riparian areas from recreational impact. Manage items 
such as trails, campsites, off-road vehicles, fires, etc. to prevent 
habitat degradation in order to maintain, protect, and develop 
flycatcher habitat.

Justification of Including Areas Not Known To Be Within the Specific 
Geographical Area Occupied by the Species at the Time of Listing

    The areas included in this designation not known to be within the 
specific geographic area occupied by the species at the time of listing 
are portions of the bird's range associated with the large populations 
in CA, NV, UT, and AZ. In the Santa Ana Management Unit, breeding 
southwestern willow flycatchers were not known from streams associated 
with the Santa Ana Drainage including the: Santa Ana River, Bear Creek, 
Mill Creek, Oak Glen Creek, and Waterman Creek. In the San Diego 
Management Unit, breeding southwestern willow flycatchers were not 
known from the Santa Margarita River, Temecula Creek, Agua Hedionda 
Creek, Santa Ysabel River, and Temescal Creek. In the Mohave Management 
Unit, breeding southwestern willow

[[Page 60917]]

flycatchers were not known from the Deep Creek, Holcomb Creek, and 
Mohave River. In the Virgin Management Unit, breeding southwestern 
willow flycatchers were not known from the Virgin River in NV and UT. 
And finally, breeding southwestern willow flycatchers were not known 
from the East Fork of the Little Colorado River and the Little Colorado 
River in AZ.
    The river segments listed above are essential because they 
represent areas with large breeding populations or a collection of 
smaller breeding populations that together equals a large population. 
Together with other areas known to be occupied at the time of listing, 
these segments provide for a wide distribution of flycatcher 
populations and other essential habitat needs such as migration, 
dispersal, foraging, shelter, etc. As a result of targeting these large 
populations, these segments represent the highest quality flycatcher 
habitat, protection against simultaneous catastrophic loss, maintenance 
of gene flow, prevention of isolation and extirpation, and colonizers 
to new areas.
    The known geographical area historically occupied by the subspecies 
was once much larger (USFWS 2002). Historical records described nesting 
birds in CA, NV, UT, CO, AZ, NM, and TX. At the time of listing in 
February 1995 (USFWS 1995), the distribution and abundance of nesting 
southwestern willow flycatcher populations, its habits, and areas 
occupied by non-breeding, migrating, and dispersing southwestern willow 
flycatchers were not well known. At the time of listing in February 
1995, 359 territories (from limited 1994 survey data) were known only 
from CA, AZ, and NM. Unitt (1987) estimated the entire population was 
``well under a 1000 pairs, more likely 500,'' and 200 to 500 
territories were estimated to exist in the proposal to list the 
flycatcher (USFWS 1993).
    Since listing, the known distribution and abundance of flycatcher 
territories has increased primarily due to increased survey effort 
(Durst et al. 2005). Population increases have also been detected at 
specific areas where habitat improved. As a result of re-establishing 
occupancy of nesting areas (especially in NV, UT, and CO) and from more 
extensive surveys and research, the extent of riparian corridors 
currently occupied by migrating, non-breeding, and dispersing 
southwestern willow flycatchers has also expanded. As of the end of the 
2003 breeding season (Durst et al. 2005), 1137 territories were known 
in CA, NV, UT, CO, AZ, and NM. Territories have still not been detected 
in TX. However migrant southwestern willow flycatchers may still move 
through TX.
    At the time of listing, breeding areas in CA, NV, UT, and CO 
described by Unitt (1987) were adopted as the subspecies northern 
boundary. However, the collection of genetic material across this part 
of the bird's range has since refined this boundary (Paxton 2000). The 
results of the DNA work reduced the extent of the northern boundary of 
the southwestern subspecies. Territories once believed to be occupied 
by southwestern willow flycatchers in UT and CO, now are more 
accurately known to be of a different subspecies of the willow 
flycatcher that is not currently listed. This genetic work also 
confirmed the southwestern willow flycatcher subspecies throughout the 
rest of its range.
    As discussed above, southwestern willow flycatchers are believed to 
exist and interact as groups of metapopulations (Lamberson et al. 2000; 
Noon and Farnsworth 2000; USFWS 2002). A meta-population is a group of 
spatially disjunct local willow flycatcher populations connected to 
each other by immigration and emigration (USFWS 2002). The distribution 
of willow flycatchers varies geographically (currently over a six-state 
region) and is most stable where many connected sites and/or large 
populations exist (Lamberson et al. 2000; USFWS 2002).
    Most southwestern willow flycatcher breeding sites contain small 
numbers of territories (Durst et al. 2005). Eighty-two percent of all 
breeding sites between 1993 and 2003 contained five or fewer flycatcher 
territories (Durst et al. 2005). Some locations no longer contain 
flycatcher territories which can largely be attributed to a variety of 
reasons that can in some cases be inter-related such as: Site 
isolation; small numbers of territories; degraded habitat conditions; 
habitat loss due to inundation, fire or drought; and the overall small 
rangewide population size of this endangered subspecies.
    Our methodology focused on identifying those areas with large 
populations and those populations in high connectivity that together 
constitute a large population. In areas such as the Santa Ana and San 
Diego Management Units, where habitat was more fragmented and nearly 
all territories were in close proximity, we had to be more selective, 
because we did not believe all habitat was essential and thus should be 
designated as critical habitat. We therefore targeted the largest 
populations surrounding the Santa Margarita, Santa Ana, and San Luis 
Rey river drainages (including adjacent tributaries). A by product of 
targeting river segments with the largest populations is that they also 
have the highest quality flycatcher habitat, the greatest chance of 
long-term persistence, and the greatest source of dispersers. Also as a 
result of the flycatcher's site fidelity, migration, and dispersal 
behaviors, these habitats are reasonably certain to be used for 
migrating and dispersing, and offer the greatest opportunity for growth 
in the breeding population.
    There are also many areas occupied at the time of listing that we 
are not considering for inclusion in the critical habitat proposal. We 
did not propose critical habitat along Bluewater Creek, Rio Chama, San 
Francisco River, the lower Rio Grande, and the Little Colorado River 
drainage in NM, the upper Santa Ynez River and Santa Clara River in CA, 
and the Colorado River in Grand Canyon and San Francisco River in AZ. 
Our methodology for identifying critical habitat segments only included 
large populations or small populations that in high connectivity were 
large, and these areas did not meet our criteria.
    Because flycatcher habitat is dynamic, distribution of populations 
throughout the bird's range is important to retain meta-population 
stability, gene flow, prevention of simultaneous catastrophic loss, and 
therefore prevention of local extirpation. For example, in central AZ 
in early 2005, flooding caused the temporary loss or alteration of 
habitat for approximately 200 pairs of flycatchers (about 42 percent of 
the state's population) and about 15 percent of the entire subspecies 
due to inundation and other flood related damages. While river flows 
caused some significant change to nesting areas along the Verde, Salt, 
Tonto, and Big Sandy river drainages, river flow was not as severe on 
the San Pedro, Gila, Lower Colorado, and Bill Williams river drainages. 
Habitat on these drainages that were not as severely changed will be 
important for existing and displaced flycatchers. In turn, the critical 
habitat designation will be important in those areas which were 
disturbed in order for them to recover. This scenario is expected to 
occur across the subspecies range in any given year and over time.
    Conservation of the flycatcher is largely focused on increasing the 
number of populations and decreasing the distance between them (USFWS 
2002). Meta-population persistence or stability is more likely to 
increase by adding more sites rather than adding more territories to 
existing sites (Lamberson et al. 2000; USFWS 2002). Because riparian 
habitat is dynamic and

[[Page 60918]]

is widely, but sparsely distributed, flycatcher meta-population 
stability, population connectivity, gene flow, and avoidance of 
simultaneous catastrophic loss can be achieved by: Birds being 
distributed throughout its range, birds being close enough to each 
other to allow for interaction; having large populations and a matrix 
of smaller sites with high connectivity; and establishing habitat close 
to existing breeding sites, thereby increasing the chance of 
colonization (USFWS 2002). As the population at a site increases, the 
potential to disperse and colonize new areas increases (Lamberson et 
al. 2000). The segments not known to be occupied at the time of listing 
are essential individually to the stability and persistence of a local 
breeding population, metapopulation, and connectivity of the entire 
subspecies, plus habitat for migrating, dispersing, and nonbreeding 
southwestern willow flycatchers.

Critical Habitat Unit Descriptions

    Below are tables, lists, and descriptions of the critical habitat 
segments. In order to help further understand the location of these 
stream segments please see the associated maps found within this rule 
and examine additional maps at http://www.fws.gov/arizonaes/. These 
additional maps will show areas that have been excluded from this final 
designation. To determine with specificity, the lateral extent 
boundaries of critical habitat, please see the electronic data layers 
found at http://criticalhabitat.fws.gov. The following tables describe: 
(1) Lands being excluded and exempted from this critical habitat 
designation pursuant to section 4(b)(2) and 4(a)(3) of the Act (Table 
2); (2) approximate area designated by land ownership per State (Table 
3).

  Table 2.--Approximate Area ha (ac)/km (mi) Excluded and Exempted From Southwestern Willow Flycatcher Critical
                            Habitat Pursuant to Section 4(b)(2) and 4(a)(3)of the Act
----------------------------------------------------------------------------------------------------------------
                                                                 AZ                 CA           CO, NM, NV, UT
----------------------------------------------------------------------------------------------------------------
Exempted and Excluded Area Totals......................    36871 (91111) /    18884 (46563) /    38875 (96063) /
                                                                 303 (188)          361 (224)          267 (166)
----------------------------------------------------------------------------------------------------------------


                        Table 3.--Southwestern Willow Flycatcher Critical Habitat by Land Ownership per State in ha (ac)/km (mi)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Federal             State             Private             Other              Totals
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ.......................................................  5296 (13087) / --   1136 (2806) / --  15856 (39182) / --       89 (221) --    22377 (55296) /
                                                                                                                                               519 (323)
CA.......................................................    846 (2092) / --   333 (823) / -- /            -- / --  5658 (17212) / --     6966 (17212) /
                                                                                             --                                                313 (195)
CO.......................................................            -- / --            -- / --            -- / --            -- / --            -- / --
NM.......................................................   2596 (6416) / --      86 (214) / --  14052 (34724) / -- 16735 (41353) / --   16735 (41353) /
                                                                                                                                               510 (317)
NV.......................................................   1118 (2763) / --            -- / --    495 (1223) -- /            -- / --  1613 (3986) /30 /
                                                                                                                                                    (19)
UT.......................................................     195 (483) / --       10 (26) / --      999 (2468) --            -- / --   1205 (2977) / 37
                                                                                                                                                    (23)
    Totals...............................................  10052 (24840) /--   1566 (3869) / --  31403 (77598) / -- 5875 (14518) / --   48896 (120824) /
                                                                                                                                              1186 (737)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The 5 Recovery and 15 Management Units, and designated stream 
segments are:
Coastal California Recovery Unit
(1) Santa Ynez Management Unit--Santa Ynez River
(2) Santa Ana Management Unit--Santa Ana River, Bear Creek, Mill Creek, 
Oak Glen Creek, and Waterman Canyon.
(3) San Diego Management Unit--Santa Margarita River, San Luis Rey 
River, Pilgrim Creek, Agua Hedionda Creek, San Ysabel River, Temescal 
Creek, and Temecula Creek.
Basin and Mohave Recovery Unit in California
(4) Kern Management Unit--South Fork Kern River
(5) Mohave Management Unit--Deep Creek, Holcomb Creek, and Mohave River
(6) Salton Management Unit--San Felipe Creek
Lower Colorado Recovery Unit--Nevada, California/Arizona Border, 
Arizona, Utah
(7) Little Colorado Management Unit--Little Colorado River, and West 
and East Forks of the Little Colorado River, AZ
(8) Virgin Management Unit--Virgin River, NV/AZ/UT
(9) Bill Williams Management Unit--Big Sandy River, AZ
Gila Recovery Unit in Arizona and New Mexico
(10) Verde Management Unit--Verde River, AZ
(11) Roosevelt Management Unit--Salt River and Tonto Creek, AZ
(12) Middle Gila/San Pedro Management Unit--Gila and San Pedro River, 
AZ
(13) Upper Gila Management Unit--Gila River in AZ/NM
Rio Grande Recovery Unit in New Mexico
(14) Upper Rio Grande Management Unit--Coyote Creek, Rio Grande, and 
Upper Rio Grande del Rancho, NM
(15) Middle Rio Grande Management Unit--Rio Grande, NM
Coastal California Recovery Unit
    The Coastal CA Recovery Unit stretches along the coast of southern 
CA from just north of Point Conception south to the Mexico border. In 
2003, there were an estimated 165 southwestern willow flycatcher 
territories in this Recovery Unit (15 percent of the rangewide total) 
(Durst et al. 2005). A total of 149 territories were estimated in the 
three Management Units included in this designation (Santa Ynez: n = 8 
territories, Santa Ana: n = 41 territories, San Diego: n = 100 
territories). No critical habitat is being designated in the Santa 
Clara

[[Page 60919]]

Management Unit. In 2001, territories were distributed along 15 
watersheds, mostly in the southern third of the Recovery Unit (USFWS 
2002: 64). The largest number of territories are within the San Luis 
Rey (n = 67), Santa Margarita (n = 19), and Santa Ana (n = 40) 
watersheds (Durst et al. 2005). In 2001, all territories occurred in 
native or native-dominated habitats; over 60 percent were on 
government-managed lands (Federal, State, and/or local) (USFWS 2002: 
64). This Recovery Unit contains designated segments within the Santa 
Ynez, Santa Ana, and San Diego Management Units. The stream segments 
designated as critical habitat are described below in their appropriate 
Management Units.

Santa Ynez Management Unit

    We are designating a 32 km (20 mi) Santa Ynez River segment in 
Santa Barbara County, CA. This is the only stream in the Santa Ynez 
Management Unit to have nesting southwestern willow flycatchers and is 
northernmost along coastal CA. While a total of three sites are known 
along the length of the Santa Ynez River, our designated segment holds 
a single breeding site. A high of 28 territories were detected at this 
breeding site in 2000. In 2003, four territories were known at this 
site. Southwestern willow flycatchers have been detected nesting on the 
Santa Ynez River since 1994.

Santa Ana Management Unit

    The Santa Ana River is the single largest river system in southern 
CA with flycatchers distributed throughout the stream from its 
headwaters/tributaries in the San Bernardino Mountains in San 
Bernardino County, CA, downstream to Riverside County. We are 
designating two segments (an upper 40.8 km/25.3 mi segment and a 13.6 
km/ 8.5 mi lower segment) of the Santa Ana River in San Bernardino 
County (after removing a non-essential approximate 18 km/11 mi segment 
immediately below Seven Oaks Dam through the Santa Ana wash--see 
justification below) and other segments with high connectivity near its 
headwaters. In San Bernardino County we are designating 14.2 km (8.8 
mi) of Bear Creek, 19.2 km (11.9 mi) of Mill Creek, 4.1 km (2.6 mi) of 
Waterman Creek, and 4.5 km (2.8 mi) of Oak Glen Creek.
    The combination of these streams provides riparian habitat for 
breeding, migrating, dispersing, non-breeding and territorial 
southwestern willow flycatchers, metapopulation stability, gene flow, 
connectivity, population growth, and prevention against catastrophic 
loss. There are seven breeding sites known along the Santa Ana River, 
one breeding site on Bear Creek, three breeding sites on Mill Creek, 
one breeding site on Waterman Creek, one breeding site on Oak Glen 
Creek, one breeding site on San Timoteo Wash, and no breeding sites on 
Wilson or Yucaipa creeks (USGS 2004). Durst et al. (2005) estimated 40 
territories were on the Santa Ana River drainage in 2003.
    Portions of the Santa Ana Watershed in Riverside County identified 
as having features essential for the southwestern willow flycatcher 
(the lower Santa Ana River, Yucaipa Creek, Temecula Creek, and Vail 
Lake on Temecula Creek) that lie within the boundaries of the Western 
Riverside MSHCP are being excluded from this critical habitat 
designation (see Relationship of Critical Habitat to Approved Habitat 
Conservation Plans--Exclusions Under Section 4(b)(2) of the Act).
    We have re-evaluated an approximate 18 km (11 mi) portion of the 
Santa Ana River immediately below Seven Oaks Dam, and portions of San 
Timoteo Wash, Yucaipa Creek, Wilson Creek, Oak Glen Creek, and Mill 
Creek. The portion of the Santa Ana Wash has little riparian habitat, 
is dry, and is not expected to develop riparian vegetation that can 
support nesting southwestern willow flycatchers due to the lack of 
surface water flow and the long-term establishment of Riversidean 
alluvial fan sage scrub vegetation in this area. Therefore, we have 
removed this approximate 18 km (11 mi) wash segment of the Santa Ana 
River to more accurately define the essential boundary of the critical 
habitat designation. To further more accurately define the essential 
boundaries of critical habitat, we reviewed and also removed segments 
of San Timoteo Wash, Yucaipa Creek, and Wilson Creek, and the lower 
portion of Mill Creek. Through further analysis of habitat, we have 
determined that these segments do not have areas with the appropriate 
topography, vegetation, or water that we would expect to support 
nesting southwestern willow flycatcher habitat, and therefore, we have 
removed them from this designation.

San Diego Management Unit

    The longest two streams in the San Diego Management Unit, the San 
Luis Rey and Santa Margarita Rivers, contain the largest numbers of 
flycatcher territories within this Management Unit. In addition to 
these two streams, we are designating a collection of smaller streams 
within the Unit. Collectively, these segments contain essential 
features for breeding, non breeding, territorial, migrating, and 
dispersing southwestern willow flycatchers and help provide 
metapopulation stability, population growth, gene flow, connectivity, 
and protection against catastrophic losses. In 2003, Durst et al. 
(2005) estimated a total of 100 territories for the entire San Diego 
Management Unit, with 86 territories on these two river drainages.
    We are designating an 9 km (5.6 mi) segment of the Santa Margarita 
River and a 1.6 km (1 mi) segment of De Luz Creek in San Diego County, 
CA, upstream of Camp Pendleton. Territories have been detected on the 
Santa Margarita River at Camp Pendleton since 1994. A high of 22 
territories in 2002 and 19 in 2003 were detected at the two known 
breeding sites on the Santa Margarita River on Camp Pendleton. The 
segment upstream from Camp Pendleton maintains a diversity of riparian 
vegetation used by dispersing and migrating southwestern willow 
flycatchers and the ability to develop breeding habitat for population 
growth or discovery of undetected territories.
    We are designating six segments of the San Luis Rey River and the 
lowest 5 km (3.1 mi) portion of Pilgrim Creek in San Diego County, CA. 
Five separate segments of the San Luis Rey River are located upstream 
(7.5 km/4.7 mi), adjacent to (0.75 km/0.5 mi, 1 km/0.6 mi), between 
(1.7 km/1 mi), and immediately (3 km/1.9 mi) below the La Jolla and 
Rincon and Indian Tribes. The lowest 51.3 km/32 mi segment of the San 
Luis Rey River is a contiguous segment extending to the ocean. A total 
of eight breeding sites (seven on San Luis Rey River and one on Pilgrim 
Creek) are spread along the length of these streams. Breeding sites 
have been detected since 1994. Durst et al. (2005) reported 67 
territories from the San Luis Rey River drainage with a single site on 
the upper San Luis Rey River holding 44 territories. A single breeding 
site exists on Pilgrim Creek where one to two territories were detected 
in 1994, 1995, and 1999.
    We are designating a short 3.2 km (2 mi) portion of Agua Hedionada 
Creek in San Diego County, CA. A single territory was detected from 
1998 to 2000. No territories were detected from 2001 to 2003.
    We are designating joining segments of Temescal Creek (7 km/4.4 mi) 
and Santa Ysabel River (6 km/3.7 mi) in San Diego County, CA. Both 
segments are found upstream of known breeding sites that are being 
excluded due to their inclusion in the San Diego County MSCP. As a 
result, these two segments currently provide habitat for dispersing

[[Page 60920]]

and migrating flycatchers and locations for population growth and/or 
discovery of undetected territories.
    We are designating a 5.1 km (3.2 mi) segment of Temecula Creek in 
San Diego County, CA. Two breeding sites are known from Temecula Creek, 
with one occurring on the designated segment. Territories were first 
detected in 1997, and Durst et al. (2005) reported a single territory 
for 2003.
    Habitat with features essential for the southwestern willow 
flycatcher identified within the boundaries of the San Diego MSCP on 
the San Dieguito River (including Lake Hodges), San Diego River, and a 
portion of Santa Ysabel River is being excluded from this critical 
habitat designation (see Relationship of Critical Habitat to Approved 
Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of the Act 
section below).
    Habitat with features essential for the southwestern willow 
flycatcher identified within the boundaries of Marine Corps Base, Camp 
Pendleton on Cristianitos, San Mateo, San Onofre, Los Flores/Las 
Pulgas, Pilgrim, and DeLuz Creeks, and the Santa Margarita River are 
being excluded from this critical habitat designation (see Relationship 
of Critical Habitat to Military Lands--Application of Section 4(a)(3) 
and Exclusions Under Section 4(b)(2) of the Act section below).
    Habitat with features essential for the southwestern willow 
flycatcher on portions of the Santa Margarita River located within the 
boundaries of the Seal Beach Naval Weapons Station, Fallbrook 
Detachment, is being excluded from this critical habitat designation 
(see Relationship of Critical Habitat to Military Lands--Application of 
Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section 
below).
    Habitat with features essential for the southwestern willow 
flycatcher identified within the boundaries of the City of Carlsbad's 
HMP at Agua Hedionda Lagoon and Agua Hedionda Creek is being excluded 
from this critical habitat designation (see Relationship of Critical 
Habitat to Approved Habitat Conservation Plans--Exclusions Under 
Section 4(b)(2) of the Act section below).
    Habitat with features essential for the southwestern willow 
flycatcher was identified within the boundaries of Rincon and La Jolla 
Tribal Lands along the San Luis Rey River. These Tribes developed, 
completed, and are implementing actions described in their Southwestern 
Willow Flycatcher Management Plans. As result, we are excluding these 
tribal lands from the critical habitat designation (see Relationship of 
Critical Habitat to American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act section below).
    We have re-evaluated our determination of the essential nature of 
the habitat features at Cuyamaca Lake. We determined that the small 
amount of habitat and disjunct nature from any other locations in the 
Santa Ana or Salton Management Units provided minimal habitat for 
metapopulation stability or prevention against catastrophic loss. As a 
result, this segment is no longer considered essential habitat and we 
have removed it from this designation.
    We have re-evaluated our determination of the essential nature of 
the habitat features associated with a short segment of Cristiantos 
Creek upstream of Camp Pendleton. Further evaluation concluded that 
there was little riparian habitat due to the lack of flowing water. As 
a result, we no longer consider this segment as essential habitat and 
we have removed it from this designation.
    We have re-evaluated our determination of the essential nature of 
the most upstream portions of the Santa Ysabel River, Temescal Creek, 
Temecula Creek, and San Diego River. The Cleveland National Forest 
provided comments describing specific portions that they believe do not 
provide the appropriate habitat for southwestern willow flycatchers 
because the vegetation is not dense, water is intermittent, understory 
(i.e. vegetation below the tree canopy) is absent, and could not 
improve for flycatchers as a result of Forest Service management. The 
Forest provided pictures and more accurate boundaries for these habitat 
segments. We agree with their assessment and have shortened these four 
segments to more accurately reflect in our designation the essential 
habitat on these river segments.

Basin and Mohave Recovery Unit

    This unit is comprised of a broad geographic area including the 
arid interior lands of southern CA and a small portion of extreme 
southwestern NV. For 2003, Durst et al. (2005) estimated 61 flycatcher 
territories at 16 sites (5 percent of the rangewide total) were 
distributed among widely separated drainages. Almost all sites had less 
than five territories; the exception was the largest breeding sites on 
the Kern and Owens River drainages (USFWS 2002:64). In 2002, all 
territories were in native or native-dominated riparian habitats, and 
approximately 70 percent were on privately owned lands (USFWS 2002:64). 
The Recovery Unit contains the Owens, Kern, Mohave, Salton, and 
Amargosa Management Units. Stream segments designated in this proposal 
are found in the Kern, Mohave, and Salton Management Units.

Owens Management Unit

    Habitat with features essential for the southwestern willow 
flycatcher identified along the Owens River are being managed by the 
Los Angeles Department of Water and Power (LADWP) and are being 
conserved through implementation of their Southwestern Willow 
Flycatcher Conservation Strategy. LADWP entered into a Memorandum of 
Understanding with the Service to implement these conservation actions. 
As a result, the entire 82.6 km (51.3 mi) Owens River, with 5 known 
breeding sites holding 28 territories as of 2003 (Durst et al. 2005) in 
Inyo and Mono Counties, CA, is being excluded from this critical 
habitat designation (see Relationship of Critical Habitat to 
Partnerships and Conservation Plans/Easements on Private Lands--
Exclusions Under Section 4(b)(2) of the Act section below).

Kern Management Unit

    We are designating a 15.5 km (9.6 mi) segment of the South Fork of 
the Kern River in Kern County, CA. This is the only stream segment in 
the Kern Management Unit known to have nesting southwestern willow 
flycatchers. Southwestern willow flycatchers have been detected nesting 
at two sites along this reach of the Kern River since 1993. In 1997, a 
high of 37 territories were detected at a single location. In 2003, 20 
territories were reported from a single site (Durst et al. 2005).
    Habitat with features essential for the southwestern willow 
flycatcher identified on the Haffenfeld Ranch along the South Fork of 
the Kern River is being excluded due to a conservation easement 
established with the National Resource Conservation Service (NRCS) 
specific to protecting habitat needs of the southwestern willow 
flycatcher. As a result of the protections provided through this 
easement, this property is being excluded from this critical habitat 
designation (see Relationship of Critical Habitat to Partnerships and 
Conservation Plans/Easements on Private Lands--Exclusions Under Section 
4(b)(2) of the Act section below).
    Two pieces of Federal land (Sprague Ranch and South Fork Kern 
Wildlife Area) with habitat features essential for the southwestern 
willow flycatcher within the Kern Management Unit are being excluded 
due to protections assured by their long-term commitments

[[Page 60921]]

to management programs specific to the riparian habitat and needs of 
the flycatcher. The Sprague Ranch was recently purchased specifically 
for the conservation needs of the southwestern willow flycatcher and is 
co-managed by the U.S. Army Corps of Engineers (Corps), the California 
Department of Fish and Game (CDFG), and the National Audubon Society 
(Audubon). The South Fork Kern River Wildlife Area, located at the 
upper end of Lake Isabella and Kern River immediately above the lake is 
co-managed by the Corps and the U.S. Forest Service to protect riparian 
habitat values. Both of these properties are managed in accordance with 
a long-term biological opinion and are being excluded from this 
critical habitat designation (see Relationship of Critical Habitat to 
Federal Conservation Programs--Exclusions Under Section 4(b)(2) of the 
Act section below).

Mohave Management Unit

    We are designating a 16.1 km (10 mi) portion of the Mojave River, a 
18.8 km (11.7 mi) section of Holcomb Creek, and a 20.3 km (12.6 mi) 
section of Deep Creek (including the uppermost portion of Mohave River 
Forks Reservoir) in San Bernardino County, CA, near the Town of 
Victorville. Since 1995, southwestern willow flycatchers have been 
detected nesting at three sites along this reach of the Mojave River, 
one site on Holcomb Creek, and zero sites on Deep Creek. Deep Creek 
connects Holcomb Creek with the Mohave Forks Reservoir and provides 
riparian habitat for dispersal and migration, and areas for population 
growth. In 2002, a high of 13 territories were detected at all 5 sites 
within these segments; however in 2003, 10 territories were recorded 
(Durst et al. 2005).

Salton Management Unit

    We are designating an 11 km (6.8 mi) portion of San Felipe Creek in 
San Bernardino County, CA. This is the only stream in the Salton 
Management Unit known to have nesting southwestern willow flycatchers. 
Southwestern willow flycatchers have been detected nesting at a single 
site since 1998. In 1998 and 1999, a high of four territories were 
detected on this stream segment. In 2003, two territories were 
estimated from this site (Durst et al. 2005). This stream and the 
territories on it have high connectivity with other smaller populations 
in the adjacent San Diego Management Unit in the Coastal CA Recovery 
Unit raising the collective population above 10 territories.

Lower Colorado Recovery Unit

    This is a geographically large and ecologically diverse Recovery 
Unit, encompassing the Colorado River and its major tributaries from 
the high elevation streams in the White Mountains of East/Central 
Arizona to the main stem Colorado River through the Grand Canyon and 
continuing downstream through the arid lands along the lower Colorado 
River to the Mexico border (USFWS 2002:64). In 2003, despite its size, 
the Unit was estimated to have only 150 known flycatcher territories 
(13 percent of the rangewide total) (Durst et al. 2005), most of which 
occur away from the main-stem Colorado River (Sogge et al. 2003). The 
largest populations are found on the Bill Williams, Virgin, and 
Pahranagat River drainages (USFWS 2002:64). In 2002, approximately 69 
percent of territories are found on government-managed lands, and 8 
percent are on Tribal lands (USFWS 2002:64). Habitat characteristics 
range from purely native (including high-elevation and low-elevation 
willow) to exotic (primarily tamarisk) dominated stands (USFWS 
2002:64). This Recovery Unit contains the Little Colorado, Middle 
Colorado, Virgin, Pahranagat, Bill Williams, Hoover to Parker, and 
Parker to Southerly International Border Management Units. Stream 
segments are being designated within the Little Colorado, Virgin, and 
Bill Williams Management Units.

Little Colorado Management Unit

    We are designating a portion of the Little Colorado River and 
portions of the East and West Forks of the Little Colorado River in 
Apache County, AZ. The 11.2 km (7 mi) segment of the East Fork of the 
Little Colorado River extends from Forest Service Road 113 downstream 
to its confluence with the West Fork of the Little Colorado River and 
Little Colorado River. The 8 km (5 mi) section of the West Fork of the 
Little Colorado goes from just upstream of Forest Service Road 113 
downstream to its confluence with the East Fork Little Colorado River 
and Little Colorado River. The Little Colorado River segment extends 
for 15.8 km (9.8 mi) downstream from the confluence of the East and 
West Forks to the diversion ditch near the Town of Greer.
    Southwestern willow flycatchers have been detected nesting at 
single sites on both the Little Colorado and West Fork of the Little 
Colorado since 1993. In 1996, a high of 11 territories were detected at 
both locations on the West Fork and Little Colorado Rivers. In 2003, 
two territories were detected on these segments. Due to its close 
proximity, the East Fork of the Little Colorado River is currently 
expected to be used for dispersing and migrating southwestern willow 
flycatchers and have the features to develop breeding habitat for 
southwestern willow flycatchers for population growth and stability.
    We re-evaluated the 7 km (4 mi) segment of the South Fork of the 
Little Colorado River extending from Joe Baca Draw downstream to its 
confluence with the Little Colorado River and removed it from this 
designation. We visited the South Fork of the Little Colorado River on 
September 22, 2004, with Forest Service personnel and determined that 
the floodplain is not wide enough to support habitat currently known to 
be used by breeding southwestern willow flycatchers. While it is 
expected to be used by migrating southwestern willow flycatchers, our 
approach was to target stream segments that would serve a combination 
of purposes, including breeding habitat. Therefore, because it did not 
have nesting habitat, nor did we believe the topography allowed it to 
be able to develop nesting habitat, we no longer believe it is 
essential habitat and we have removed it from the designation.

Middle Colorado Management Unit

    The upper most portion of the conservation space of Lake Mead, 
including the Colorado River to river mile 243, was identified as 
having features essential to the flycatcher in Mohave County, AZ. 
Southwestern willow flycatchers have been detected nesting at 14 sites 
along this reach of the Colorado River since 1993. In 1998, a high of 
15 territories at 8 breeding sites were detected within this segment 
(USGS 2004). In 2003, no territories were detected on this stream 
segment, and in 2004, two territories were found (Munzer et al. 2005). 
The conservation space of Lake Mead and the Colorado River immediately 
upstream is covered under the Lower Colorado River Multi-Species 
Conservation Plan (LCR MSCP) up to full pool elevation of Lake Mead. 
The full pool elevation is defined by water surface elevation 1,229 
feet National Geodetic Vertical Datum which extends up to near river 
mile 235 at Separation Canyon. As a result of upper portion of Lake 
Mead and Colorado River through river mile 235 being covered under the 
LCR MSCP, this entire segment is being excluded from this critical 
habitat designation (see Relationship of Critical Habitat to Approved 
Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of the Act 
section below).

[[Page 60922]]

    The Colorado River above Lake Mead on the Hualapai Nation was 
identified as having features essential to the southwestern willow 
flycatcher. The Nation developed, completed, and is implementing 
actions described in their Southwestern Willow Flycatcher Management 
Plan. As a result, and in conjunction with coverage under the LCR MSCP, 
the southern bank of the Colorado River on Hualapai Lands is being 
excluded from this designation (see Relationship of Critical Habitat to 
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act section below).

Virgin Management Unit

    We are designating a contiguous segment of the Virgin River in UT, 
AZ, and NV. The segment extends for 118.7 km (73.8 mi) from the 
Washington Field Diversion Impoundment in Washington County, UT, 
downstream through the Town of Littlefield, AZ, and ends in NV at the 
upstream boundary of the Overton State Wildlife Area in Clark County, 
NV. This segment exists for 36.7 km (22.8 mi) in UT, approximately 52 
km (32.3 mi) through AZ, and 30 km (18.6 mi) in NV. The Virgin River is 
the only stream within this Management Unit and within UT known to have 
nesting southwestern willow flycatchers. Southwestern willow 
flycatchers have been detected nesting in 1995 at three sites in the NV 
segment, a single site in the AZ segment since 2001, and two sites in 
the UT segment since 1995. In 2001, a high of 40 territories were 
detected at 5 of the 6 sites within the proposed designation (36 in NV, 
1 in AZ, and 3 in UT). In 2003, 37 territories were detected at 4 of 
the 6 sites (Durst et al. 2005).
    The Overton State Wildlife Area encompasses a segment of the Virgin 
River where it enters into Lake Mead. This segment of the Virgin River 
was identified as having features essential to the southwestern willow 
flycatcher. As a result of the State of Nevada's management of this 
property for wildlife and riparian habitat for the flycatcher, this 
segment is being excluded from this designation (see Relationship of 
Critical Habitat to State and Federal Wildlife Conservation Areas--
Exclusions Under Section 4(b)(2) of the Act section below).
    A 1.2 km (2 mi) (approximately 158 ha/390 ac of riparian habitat) 
segment of the Virgin River exists between two excluded areas of the 
Overton State Wildlife Area. About 61ha (150 ac) of this area was 
purchased by the Bureau of Reclamation for conservation of wildlife and 
riparian habitat, with the possibility of turning management over to 
the State of Nevada. As a result of this remaining 1.2 km (2 mi) 
segment being surrounded by conservation lands, being detached from a 
considerably larger designated segment, being a very small piece of an 
overall larger segment that is being excluded from critical habitat, 
and because a significant portion was purchased for the conservation of 
wildlife, it is our determination that this segment is no longer 
essential habitat and we have removed it from the final designation.

Pahranagat Management Unit

    The Pahranagat River, within the Pahranagat National Wildlife 
Refuge and Key Pittman State Wildlife Area in Lincoln County, NV, and 
the Muddy River within the boundaries of the Overton State Wildlife 
Area in Clark County, NV, were identified as having features essential 
to the southwestern willow flycatcher. Durst et al. (2005) reported 21 
territories from these three locations in 2003. As a result of the 
Service's management of this National Wildlife Refuge and the State of 
Nevada's management of the Key Pittman and Overton Wildlife Areas for 
wildlife and riparian habitat for the flycatcher, all of the three 
segments proposed in this Management Unit are being excluded from this 
designation (see Relationship of Critical Habitat to National Wildlife 
Refuge Lands--Exclusions Under Section 4(b)(2) of the Act and 
Relationship of Critical Habitat to State and Federal Wildlife 
Conservation Areas--Exclusions Under Section 4(b)(2) of the Act 
sections below).

Bill Williams Management Unit

    We are designating a 30.4 km (18.9 mi) segment of the Big Sandy 
River from the Town of Wikieup to Groom Peak Wash, in Mohave County, 
AZ. This segment contains a known breeding site (15 territories in 2003 
and 28 in 2004), habitat for dispersing, migrating, and non-breeding 
southwestern willow flycatchers, as well as areas for population 
growth.
    We re-evaluated the upper most portion of the Big Sandy River 
segment, examined habitat models (Dockens and Paradzick 2004), 
consulted local experts, and determined that due to the intermittent 
surface flow of this stream, there is a limited amount of riparian 
habitat that is able to support nesting habitat for southwestern willow 
flycatchers. Thus, we shortened this segment to more accurately reflect 
the essential nature of this segment for the flycatcher by removing the 
northern-most (12.9 km/20.8 mi) portion from the designation.
    The Alamo Lake State Wildlife Area, which includes the Big Sandy, 
Santa Maria, and Bill Williams River confluence area (included within 
upper Alamo Lake), in Mohave and La Paz Counties, AZ, was identified as 
having features essential to the southwestern willow flycatcher. A 
total of 31 territories were detected in 2004. As a result of the State 
of AZ's management of this Area for wildlife and riparian habitat for 
the flycatcher, all of the river segments within this Wildlife Area are 
being excluded from this designation (see Relationship of Critical 
Habitat to State and Federal Wildlife Conservation Areas--Exclusions 
Under Section 4(b)(2) of the Act section below).
    The Bill Williams River within the Bill Williams National Wildlife 
Refuge was identified as having features essential to the southwestern 
willow flycatcher. A total of two territories were detected on the 
refuge in 2004. As a result of the Service's management of the refuge 
for wildlife and riparian habitat for the flycatcher, the Bill Williams 
River within the refuge boundary is being excluded from this 
designation (see Relationship of Critical Habitat to National Wildlife 
Refuge Lands--Exclusions Under Section 4(b)(2) of the Act section 
below).
    We re-evaluated the remaining approximately 1.6 km (1 mi) section 
of habitat along the Bill Williams River above the Bill Williams NWR 
(primarily occurring on Planet Ranch). This location is dominated by 
farm fields associated with the Ranch, and subsequently has little 
habitat for the southwestern willow flycatcher (U.S. Bureau of 
Reclamation 2005). There is potential for habitat improvement for the 
southwestern willow flycatcher but it would take a significant change 
in land operations, money, time, and effort, and may be more likely to 
develop habitat for yellow-billed cuckoos (U.S. Bureau of Reclamation 
2005). We encourage continued management of the resources of this Ranch 
with respect to downstream riparian values, and toward developing 
future habitat for the southwestern willow flycatcher. But due to the 
present condition and the changes required to convert existing 
locations to flycatcher habitat, we have concluded it is not essential 
habitat, and have therefore removed it from the designation.

Hoover to Parker Management Unit

    A 107 km (66.5 mi) segment of the Colorado River from Davis Dam to 
Parker Dam (including the Havasu National Wildlife Refuge, Fort Mohave 
Tribe, and Chemehuevi Tribe) in

[[Page 60923]]

Mohave and La Paz County, AZ, and San Bernardino County, CA, was 
identified as having features essential to the southwestern willow 
flycatcher and proposed as critical habitat. Six breeding sites are 
known from this segment, with the largest at Topock Marsh having 34 
territories in 2004. As a result of the completion of the Lower 
Colorado River MSCP, Service management of Havasu National Wildlife 
Refuge for riparian habitat, and implementation of completed 
Southwestern Willow Flycatcher Management Plans by the Chemehuevi and 
Fort Mohave Tribes, this entire river segment is being excluded from 
this designation (see Relationship of Critical Habitat to American 
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act, Relationship of Critical Habitat to National 
Wildlife Refuge Lands--Exclusions Under Section 4(b)(2) of the Act, and 
Relationship of Critical Habitat to Approved Habitat Conservation 
Plans--Exclusions Under Section 4(b)(2) of the Act sections below).

Parker to Southerly International Border Management Unit

    A 24.1 km (15 mi) Colorado River segment in La Paz and San 
Bernardino Counties, CA, and another 74.4 km (46.2 mi) Colorado River 
segment in La Paz and Yuma, Counties, AZ, and Imperial CA (including 
Cibola and Imperial National Wildlife Refuges, Colorado River and Fort 
Yuma (Quechan) Tribes) were identified as having features essential to 
the southwestern willow flycatcher and proposed as critical habitat. A 
high of 13 territories at 10 sites were detected on this segment in 
1996, and 2 were detected in 2003. As a result of the Lower Colorado 
River MSCP, Service management of Cibola and Imperial National Wildlife 
Refuges, and implementation of completed Southwestern Willow Flycatcher 
Management Plans by the Colorado River and Fort Yuma (Quechan) Tribes 
these two river segments are being excluded from this designation (see 
Relationship of Critical Habitat to American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities and the Endangered Species Act, 
Relationship of Critical Habitat to National Wildlife Refuge Lands--
Exclusions Under Section 4(b)(2) of the Act, and Relationship of 
Critical Habitat to Approved Habitat Conservation Plans--Exclusions 
Under Section 4(b)(2) of the Act sections below).

Gila Recovery Unit

    This unit includes the Gila River watershed, from its headwaters in 
southwestern NM downstream to near the confluence with the Colorado 
River (USFWS 2002: 65). In 2002, the 588 known flycatcher territories 
(51 percent of the rangewide total) were distributed primarily on the 
Gila and lower San Pedro Rivers (Sogge et al. 2003). A total of 505 
territories were detected in 2003 within the segments proposed in this 
Management Unit. Many sites are small (less than five territories), but 
sections of the upper Gila River, lower San Pedro River (including its 
confluence with the Gila River), and the Tonto Creek and Salt River 
inflows within the high water mark of Roosevelt Lake support the 
largest sites known within the subspecies' range. In 2001, private 
lands hosted 50 percent of the territories, including one of the 
largest known flycatcher populations in the Cliff-Gila Valley, NM 
(USFWS 2002: 65). Approximately 50 percent of the territories were on 
government-managed lands (USFWS 2002: 65). While 58 percent of 
territories were in native-dominated habitats, flycatchers in this 
Recovery Unit also make extensive use of exotic (77 territories) or 
exotic-dominated (108 territories) habitats (primarily tamarisk).

Verde Management Unit

    We are designating two separate segments of the upper Verde River 
in Yavapai County, AZ. The first segment occurs in the Verde Valley and 
extends for 23.1 km (14.4 mi) from near the Town of Cottonwood (2 miles 
north of Highway 89A/260 intersection) downstream to the upstream end 
of Yavapai-Apache Tribal lands. The second segment extends for 29.2 km 
(18.1 mi) from the downstream boundary of Yavapai-Apache lands through 
the town of Camp Verde to Beasley Flat on the Prescott National Forest. 
A small (less than 1 km/0.6 mi) non-Tribal section of critical habitat 
separates two segments of excluded Yavapai--Apache Tribal lands.
    Two segments occur in the middle Verde River in Yavapai and 
Maricopa Counties, AZ. A 37 km (23 mi) segment begins at the East 
Verde/Verde River confluence in Yavapai County on the Tonto National 
Forest and extends downstream to the conservation space boundary of 
Horseshoe Lake. The second segment begins immediately below Horseshoe 
Dam and extends for 6.5 km (4.1 mi) to the USGS gauging station in 
Maricopa County.
    Since 1993, southwestern willow flycatchers have been confirmed at 
three breeding sites on the upper Verde River (Tuzigoot to Beasley 
Flat), with additional sightings in 2005 of about seven unsolicited 
singing flycatchers near the West Clear Creek confluence downstream to 
Beasley Flat (E. Paxton, USGS, e-mail). In 1997, 10 territories were 
the highest recorded on the upper Verde River segment. In 2003, 13 
territories were detected at 2 sites within the Middle Verde River 
section (Smith et al. 2004, and in 2004, 17 territories were detected 
at Horseshoe Lake (Munzer et al. 2005).
    The Verde River within the conservation space of Horseshoe 
Reservoir was identified as having features essential to the 
southwestern willow flycatcher. As a result of the partnership 
developed with Salt River Project, and their continued effort toward 
managing Horseshoe Lake to maintain flycatcher habitat for the long-
term, and formalizing management and appropriate mitigation in a HCP, 
we are excluding the lake from this designation (see Relationship of 
Critical Habitat to Partnerships and Conservation Plans/Easements on 
Private Lands--Exclusions Under Section 4(b)(2) of the Act section 
below).
    Three separate areas in the Verde River within the boundary of 
Yavapai-Apache Tribal lands were identified as having features 
essential to the southwestern willow flycatcher. The Tribe developed, 
completed, and is implementing actions described in their Southwestern 
Willow Flycatcher Management Plan. As a result, the segments identified 
on Yavapai-Apache Tribal Lands are being excluded from this designation 
(see Relationship of Critical Habitat to American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act 
section below).
    We re-evaluated the lowest 8 km (5 mi) segment of the Verde River 
located on the Tonto National Forest in Maricopa County, AZ, from 
Needle Rock to near the Fort McDowell Indian Tribal Boundary. While 
habitat here may be used in the future for breeding and migrating 
flycatchers, the results of recent surveys (Smith et al. 2004 and 
Munzer et al. 2005) did not detect flycatchers. We therefore concluded 
that due to the disconnected nature of this segment to upstream 
occupied areas, the short distance of the segment, and the lack of 
detections during surveys that it is not essential and we have removed 
from the designation. We encourage management of the Verde River below 
Bartlett Dam for flycatchers due to appropriate features to develop and 
maintain habitat.

[[Page 60924]]

Roosevelt Management Unit

    We are designating a contiguous segment of lower Tonto Creek and 
the Salt River immediately upstream from the conservation space of 
Roosevelt Lake in Gila and Pinal Counties, AZ. A 31.7 km (19.7 mi) 
segment of Tonto Creek begins at the confluence of Tonto Creek and Rye 
Creek and extends to the high water mark of Roosevelt Lake in Gila 
County, AZ. The 28.3 km (17.6 mi) segment of the Salt River extends 
from the Cherry Creek confluence on the Tonto National Forest and 
travels downstream to the high water mark of Roosevelt Lake in Gila 
County, AZ. Outside of the conservation space of Roosevelt Lake, 10 
territories were detected along Tonto Creek in 2004 (Munzer et al. 
2005), and approximately 30 in 2005 (R. Ockenfels, AGFD, e-mail).
    We re-evaluated the 34 km (21 mi) Pinto Creek segment and removed 
it from the designation because it does not have the essential habitat 
features identified for the flycatcher. The Arizona Game and Fish 
Department, U.S. Bureau of Reclamation, Tonto National Forest, and the 
Service identified Pinto Creek as habitat that could provide nesting 
locations for displaced flycatchers following inundation of habitat at 
Roosevelt Lake as a result of its proximity and habitat quality. 
Surveys in 2004 (Munzer et al. 2005), and particularly in 2005 (A. 
Smith, AGFD, e-mail) after flycatcher habitat was inundated at 
Roosevelt Lake, found no migrant or breeding flycatchers. While habitat 
may be used in the future for breeding and migrating flycatchers, the 
results of these surveys determined that it is not reasonably certain 
to be used by displaced Roosevelt flycatchers for nesting or migration, 
and therefore, we conclude that this segment is not essential habitat 
and we have removed it from the designation. We encourage continued 
management and monitoring of this segment for use by flycatchers.
    The riparian habitat within the conservation space of Roosevelt 
Lake has features essential for the conservation of the southwestern 
willow flycatcher. In 2004, a total of 209 territories were found at 
Roosevelt Lake. The Roosevelt HCP covers the conservation space and as 
a result of protections provided from this HCP and management by the 
Tonto National Forest, this area is being excluded from this critical 
habitat designation (see Relationship of Critical Habitat to Approved 
Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of the Act 
section below).

Middle Gila/San Pedro Management Unit

    We are designating a segment of the middle and lower San Pedro 
River, and a segment of the Gila River near the San Pedro/Gila River 
confluence in Pinal, Pima, and Cochise Counties, AZ. The middle/lower 
San Pedro River segment extends for 97.4 km (60.5 mi) to the Gila 
River. The Gila River segment begins at Dripping Springs Wash and 
extends for 72.4 km (45 mi) downstream past the San Pedro/Gila 
confluence and the Towns of Winkleman and Kelvin to the Ashehurst 
Hayden Diversion Dam near the Town of Cochran in Gila and Pinal 
Counties, AZ. Flycatchers have been detected nesting along these 
segments since 1993. In 2003, a high of 167 territories from 19 sites 
(12 on San Pedro and 7 on the Gila) were detected on the stream 
segments proposed for critical habitat within this Management Unit. In 
2004, a total of 157 territories were detected from these sites (Munzer 
et al. 2004). Dripping Springs Wash had one to two territories detected 
in 2005 (R. Ockenfels, AGFD, e-mail). Degradation of habitat quality 
due to an apparent reduction in river flow has dropped the number of 
territories on the Gila River segment from 68 in 1999, 26 in 2003, to 
14 in 2004. This location, along with populations at Roosevelt Lake, 
AZ, and in the Cliff-Gila Valley, NM, have the most southwestern willow 
flycatcher territories throughout its range.

Upper Gila Management Unit

    We are designating four distinct southwestern willow flycatcher 
critical habitat segments along the Upper Gila River from the Turkey 
Creek/Gila River confluence on the Gila National Forest, NM, downstream 
to San Carlos Apache Tribal Land, AZ. There are three full segments we 
are designating as southwestern willow flycatcher critical habitat on 
the upper Gila River in southwestern NM (Grant and Hildalgo Counties) 
and immediately across the AZ State line into Greenlee County. We are 
also designating four small parcels of land that are interspersed 
within an excluded portion of the U-Bar Ranch in the Cliff/Gila Valley, 
NM. A fourth full segment occurs in AZ through the Safford Valley in 
Gila, Graham, and Pinal Counties.
    The first full segment extends for 15.5 km (9.7 mi) from the Turkey 
Creek/Gila River confluence on the Gila National Forest, NM, downstream 
to the upstream boundary of the U-Bar Ranch in the Cliff/Gila Valley, 
NM. We are excluding the U-Bar Ranch from this point downstream for 
approximately 6 km (3.7 mi) to near the Highway 180 Bridge. Along this 
approximate 6 km (3.7 mi) stretch of river are four small distinct 
parcels of land not owned by the U-Bar Ranch which are being designated 
as critical habitat. The second full segment extends from the 
downstream boundary of the U-Bar Ranch exclusion near where Highway 180 
crosses the Gila River for 21.1 km (13.1 mi) through the Cliff/Gila 
Valley to the upstream entrance of the middle Gila Box on the Gila 
National Forest, NM (the middle Gila Box is being removed, see below). 
The third full segment begins at the gauging station above the Town of 
Red Rock in Grant County, NM, at the downstream end of the middle Gila 
Box and extends for 54.7 km (34 mi) into Hidalgo County, NM, and across 
the NM/AZ State line through the town of Duncan in Greenlee County, AZ.
    A fourth full segment on the Gila River in AZ in Gila, Graham, and 
Pinal Counties extends for 69.2 km (43 mi) from the upper end of Earven 
Flat in AZ, above the Town of Safford, through the Safford Valley to 
the San Carlos Apache Tribal Boundary.
    Southwestern willow flycatchers have been detected nesting along 
these stream segments in the Upper Gila Management Unit since 1993. A 
total of 16 breeding sites (7 in NM and 9 in AZ) are known in the Upper 
Gila Management Unit. In 1999, a high of 262 territories at 8 sites 
were detected. A single site, the U-Bar Ranch in the Cliff/Gila Valley, 
had 209 territories. In 2003, 191 territories at 8 sites were detected 
on the Gila River stream segments that we proposed as critical habitat 
within this Management Unit. The U-Bar Ranch had 123 of these 
territories in 2003, many nesting in the canopy of mature boxelder 
trees along maintained irrigated ditches.
    The U-Bar Ranch, located in the Cliff/Gila Valley in Grant County, 
NM, was identified as having features essential to the conservation of 
the southwestern willow flycatcher. Since the mid-1990s, the U-Bar 
Ranch has been the focus of studies and research by the Forest 
Service's Rocky Mountain Research and Experiment Station in 
Albuquerque, NM. The number of territories detected has fluctuated 
between approximately 110 and 210 territories. The U-Bar exists at 
approximately 1372 m (4500 feet) above sea level. Dense stands of 
boxelder trees are found along irrigation canals. As a result, nearly 
75 percent of the flycatcher territories are found nesting in the 
canopies of these boxelders, approximately 60 feet above the ground. No 
where else throughout this subspecies range are southwestern

[[Page 60925]]

willow flycatchers found nesting at this elevation, in this type of 
environment, in these types of trees, at this density. The combination 
of anthropogenic influence, elevation, and boxelder canopy structure 
has helped create a unique situation that is beneficial for nesting 
flycatchers. The result of these southwestern willow flycatcher studies 
has fostered the maintenance and management of one of the three largest 
known breeding populations. As a result of the stewardship demonstrated 
by the U-Bar Ranch and the commitment to future management of this 
population and its habitat, we are excluding the U-Bar Ranch from 
southwestern willow flycatcher critical habitat (see Relationship of 
Critical Habitat to Partnerships and Conservation Plans/Easements on 
Private Lands--Exclusions Under Section 4(b)(2) of the Act section 
below).
    We re-evaluated an 11.3 km (7 mi) segment of the Gila River 
downstream of the Gila Bird Area in NM, located primarily on the Gila 
National Forest in Grant County, known as the middle Gila Box. While 
flycatchers could use this location for migration and/or dispersal 
habitat, this section of river is bordered by canyon walls without the 
floodplain characteristics to develop the vegetation for nesting 
habitat. Therefore, we conclude that it is not essential habitat and we 
have removed it from the designation.
    The Gila River immediately above San Carlos Lake and within the 
conservation space of the lake on San Carlos Apache Tribal Land was 
identified as having features essential to the southwestern willow 
flycatcher. The Tribe developed, completed, and is implementing actions 
described in their Southwestern Willow Flycatcher Management Plan. As a 
result, the segments identified as critical habitat on San Carlos 
Tribal Lands are being excluded from this designation (see Relationship 
of Critical Habitat to American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act section below).

Rio Grande Recovery Unit

    This Recovery Unit encompasses the Rio Grande watershed from its 
headwaters in southwestern CO downstream to the Pecos River confluence 
in southwestern Texas, although no flycatcher breeding sites are 
currently known along the Rio Grande in Texas. Also included in the 
Recovery Unit is the Pecos River watershed in NM and Texas (where no 
breeding sites are known) and one site on Coyote Creek, in the upper 
Canadian River watershed. In 2003 (Durst et al. 2005), the Rio Grande 
Recovery Unit had grown to 229 territories (20 percent of the rangewide 
total). This is a large increase from the 128 territories detected in 
2001 (USFWS 2002). Breeding sites along the Rio Grande in the San Luis 
Valley, CO, and at the upper end of Elephant Butte Reservoir, NM, 
accounted for the majority of this increase. In 2001, government-
managed lands accounted for 63 percent of the territories in this unit; 
Tribal lands supported an additional 23 percent (USFWS 2002). This 
Recovery Unit contains the San Luis Valley, Upper Rio Grande, Middle 
Rio Grande, and Lower Rio Grande Management Units. Only river segments 
in the Middle and Upper Rio Grande are being designated as critical 
habitat.

San Luis Valley Management Unit

    The upper Rio Grande in Costilla, Conejos, Alamosa, and Rio Grande 
Counties, CO, and a segment of the Conejos River in Conejos, County, 
CO, were identified as having features essential to the southwestern 
willow flycatcher. In 2003, Durst et al. (2005) estimated a total of 73 
flycatcher territories known from this Management Unit. The five 
counties surrounding these streams in south-central Colorado along with 
the Rio Grande Water Conservation District has a developed partnership 
with the Service and other Federal agencies for conservation of 
riparian areas on private lands in combination with Federal partners 
including and extending beyond the river segments identified in our 
proposed designation. Additionally, the Service is implementing 
management on the Alamosa National Wildlife Refuge specific to 
protecting riparian habitat values for the southwestern willow 
flycatcher. As a result, the Rio Grande and Conejos River segments 
identified as proposed critical habitat in the San Luis Valley 
Management Unit are being excluded from this designation (see 
Relationship of Critical Habitat to National Wildlife Refuge Lands--
Exclusions Under Section 4(b)(2) of the Act, and Relationship of 
Critical Habitat to Partnerships and Conservation Plans/Easements on 
Private Lands--Exclusions Under Section 4(b)(2) of the Act sections 
below).

Upper Rio Grande Management Unit

    We are designating single segments of the upper Rio Grande in Taos 
and Rio Arriba Counties, NM; the Rio Grande del Rancho in Taos County, 
NM; and Coyote Creek in Mora County, NM. The upper Rio Grande segment 
extends for 45.9 km (28.5 mi) from the Taos Junction Bridge (State 
Route 520) downstream to the upstream boundary of the San Juan Pueblo. 
The 10.4 km (6.5 mi) of the Rio Grande del Rancho extends from Sarco 
Canyon downstream to the Arroyo Miranda confluence. The 9.3 km (5.8 mi) 
Coyote Creek segment travels from about 2 km/1 mi above Coyote Creek 
State Park downstream to the second bridge on State Route 518, upstream 
from Los Cocas.
    Flycatchers have been detected nesting along these upper Rio Grande 
River segments since 1993. Eleven breeding sites are known to exist on 
these segments (seven on the Rio Grande, one on the Rio Grande del 
Rancho, and three on Coyote Creek). On the Rio Grande in 2002, 16 
territories were detected at a single site. On the Rio Grande del 
Rancho in 2003, a high of six territories were detected at a single 
site. On Coyote Creek in 2000, a high of 17 territories at 3 sites were 
detected, however only 3 territories (from 2 sites) were detected in 
2002, and no surveys occurred in 2003.
    The Pueblos of San Juan, Santa Clara, and San Illdefonso were 
identified as having features essential to the southwestern willow 
flycatcher along the Rio Grande. These three Pueblos have established a 
history of habitat management conducive to fostering the development 
and maintenance of riparian vegetation for the southwestern willow 
flycatcher, including restoration of native vegetation in order to 
reduce catastrophic fire to the riparian area. All three Pueblos have 
developed partnerships with the Service toward management of flycatcher 
habitat, and through those partnerships will be finalizing riparian 
habitat management plans that specifically address the habitat needs of 
breeding, migrating, and dispersing flycatchers. As a result, the Rio 
Grande on the Pueblos of San Juan, Santa Clara, and San Illdefonso is 
being excluded from this designation (see Relationship of Critical 
Habitat to American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act section below).
    Four extremely small sections of riparian vegetation exist between 
and adjacent to the San Juan, Santa Clara, and San Illdefonso Pueblos 
that we have determined are not essential and are removing from this 
designation. A small piece of non-Pueblo habitat less than 1 km (0.6 
mi) long exists between the San Juan and Santa Clara Pueblos. 
Additionally, a piece of non-Pueblo habitat, less than 0.5 km/0.3 mi 
long exists to west, adjacent to the Santa Clara Pueblo. Another two 
small pieces (each less than 0.5 km/0.3 mi long) exist between the San 
Illdefonso and Santa Clara Pueblos. As a result of these segments being 
located adjacent to

[[Page 60926]]

appropriate management by the Pueblos for the southwestern willow 
flycatcher, and because of their disjunct location and small size, we 
have determined that these four pieces are not essential habitat and 
are being removed from this designation.

Middle Rio Grande Management Unit

    We are proposing three separate segments of the middle Rio Grande 
in Valencia and Soccoro Counties, NM. These segments are separated by 
the Sevilleta and Bosque del Apache NWRs that are being excluded from 
this designation as explained below. The most northern Rio Grande 
segment extends from the southern boundary of the Isleta Pueblo for 
71.1 km (44.2 mi) to the northern boundary of the Sevilleta NWR. The 
middle Rio Grande segment extends for 44 km (27.3 mi) from the southern 
boundary of the Sevilleta NWR to the northern boundary of the Bosque 
del Apache NWR. The most southern Rio Grande segment extends for 20.1 
km (12.5 mi) from the southern boundary of the Bosque del Apache NWR to 
the overhead powerline near Milligan Gulch at the northern end of 
Elephant Butte State Park.
    Southwestern willow flycatcher territories have been detected on 
the middle Rio Grande since 1993. In 2002, 98 territories at 7 sites 
were detected. In 2003, a high of 107 territories at 6 of 7 different 
breeding sites were detected. A total of 85 territories were detected 
at the San Marcial site in 2003.
    Habitat with features essential for the southwestern willow 
flycatcher identified along the Middle Rio Grande within the Rio Grande 
Valley State Park (City of Albuquerque) is being conserved through 
implementation of their Bosque Action Plan. This plan describes 
preservation and conservation of vegetation and wildlife communities, 
including the flycatcher and the habitat upon which it depends. As a 
result of this management, the Rio Grande Valley State Park is being 
excluded from this critical habitat designation (see Relationship of 
Critical Habitat to Partnerships and Conservation Plans/Easements on 
Private Lands--Exclusions Under Section 4(b)(2) of the Act section 
below).
    The Rio Grande on Pueblo of Isleta land immediately downstream of 
Rio Grande Valley State Park (City of Albuquerque) was identified as 
having features essential to the southwestern willow flycatcher. The 
Pueblo developed, completed, and is implementing actions described in 
their Southwestern Willow Flycatcher Management Plan. As a result, the 
segment identified on Pueblo of Isleta land is being excluded from this 
designation (see Relationship of Critical Habitat to American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act section below).
    Habitat with features essential for the southwestern willow 
flycatcher identified along the Middle Rio Grande within the Sevilleta 
and Bosque del Apache NWRs is being conserved by the Service. Goals and 
objectives of both refuges are the protection and restoration of 
riparian habitat for the southwestern willow flycatcher. A total of 11 
territories as of 2003 were known from both NWRs (USGS 2004). As a 
result of the Service's management of the refuge for wildlife and 
riparian habitat for the flycatcher, the Rio Grande within the 
Sevilleta and Bosque del Apache NWRs boundaries is being excluded from 
this designation (see Relationship of Critical Habitat to National 
Wildlife Refuge Lands--Exclusions Under Section 4(b)(2) of the Act 
section below).

Exclusions of Military Lands Under Section 4(a)(3)

    Section 318 of fiscal year 2004 the National Defense Authorization 
Act (Public Law No. 108-136) amended the Endangered Species Act to 
address the relationship of Integrated Natural Resources Management 
Plans (INRMPs) to critical habitat by adding a new section 4(a)(3). 
This provision prohibits the Service from designating as critical 
habitat any lands or other geographical areas owned or controlled by 
the Department of Defense, or designated for its use, that are subject 
to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 
670a), if the Secretary of the Interior determines in writing that such 
plan provides a benefit to the species for which critical habitat is 
proposed for designation.
    The Sikes Act required each military installation that includes 
land and water suitable for the conservation and management of natural 
resources to complete an INRMP by November 17, 2001. An INRMP 
integrates implementation of the military mission of the installation 
with stewardship of the natural resources found on military lands. Each 
INRMP includes an assessment of the ecological needs on the 
installation, including the need to provide for the conservation of 
listed species; a statement of goals and priorities; a detailed 
description of management actions to be implemented to provide for the 
ecological needs of listed species; and a monitoring and adaptive 
management plan. We consult with the military on the development and 
implementation of INRMPs for installations with listed species.
    An INRMP integrates implementation of the military mission of the 
installation with stewardship of the natural resources found there. 
Each INRMP includes an assessment of the ecological needs on the 
military installation, including conservation provisions for listed 
species; a statement of goals and priorities; a detailed description of 
management actions to be implemented to provide for these ecological 
needs; and a monitoring and adaptive management plan.
    We identified in the proposed critical habitat rule for the 
southwestern willow flycatcher possible exclusion of Camp Pendleton and 
Fallbrook Naval Weapons Station from critical habitat under section 
4(b)(2)of the Act. After re-evaluation, we have exempted lands owned by 
Camp Pendleton and Fallbrook Naval Weapons Station from the final 
critical habitat designation pursuant to section 4(a)(3) of the Act 
based on legally operative INRMPs that provide a benefit to the 
southwestern willow flycatcher. Detailed discussions of the exemptions 
and exclusion of military lands are discussed by installation below.

Marine Corps Base, Camp Pendleton (MCBCP)

    Areas or habitat containing features essential to the conservation 
of the southwestern willow flycatcher within the boundaries of MCBCP 
occur along portions of Cristianitos (6 km/4 mi), San Mateo (5 km/3 
mi), San Onofre (6 km/4 mi), Los Flores (8 km/5 mi), Las Pulgas (2 km/1 
mi), and DeLuz Creeks (10 km/6 mi), and the Santa Margarita River (45 
km/28 mi); however, as discussed below, these areas are being exempted 
from critical habitat for the flycatcher. The exemption includes lands 
leased to the California Department of Parks and Recreation. 
Southwestern willow flycatcher populations within these watersheds on 
Camp Pendleton contain features essential to the conservation of the 
species because these watersheds retain relatively natural hydrological 
processes and functions. The Santa Margarita watershed is one of the 
least altered major watersheds occupied by the species throughout its 
range.
    Camp Pendleton's INRMP was completed and signed by the Commanding 
General on November 9, 2001. The INRMP provides conservation measures 
that will directly and indirectly benefit the southwestern willow 
flycatcher and other listed species found on the Base. According to 
Camp Pendleton's May 26, 2005,

[[Page 60927]]

comment letter, the Base annually reviews and updates its INRMP with 
cooperation of the Service and California Department of Fish and Game 
to verify that: (1) The Base has sufficient professionally trained 
natural resources management staff available to implement the INRMP; 
(2) there have not been significant changes to the installation's 
mission requirements or its natural resources; (3) planned actions are 
implemented in an adaptive manner, adjusting management priorities and 
methodologies to accommodate changing natural resource and mission 
requirements; and (4) the required Federal, State, and installation 
coordination has occurred.
    Actions undertaken by Camp Pendleton that have directly or 
indirectly benefited the flycatcher include: (1) Removal of non-native 
plant and animal species from riparian habitats, including Arunda 
donax, a major invasive plant species, (2) control of brown-headed 
cowbirds (a nest parasite), for over the past ten years, (3) 
programmatic impact avoidance and minimization measures through the 
Riparian Biological Opinion (see below) and, (4) flycatcher surveys and 
monitoring. In addition to the above benefits, Camp Pendleton has 
hosted or funded the following research efforts in partnership with 
USGS-BRD: (1) Southwestern willow flycatcher demographic studies using 
banded flycatchers; (2) examination of vegetation characteristics at 
flycatcher nest sites; (3) riparian habitat use by birds (including 
southwestern willow flycatchers) with an emphasis on habitats dominated 
by exotic vegetation; (4) response of southwestern willow flycatchers 
to removal of exotic vegetation; (5) use of exotic riparian vegetation 
as nesting substrate; and, (6) use of non-listed birds as indicators of 
suitable southwestern willow flycatcher habitat.
    Camp Pendleton manages listed species, including the southwestern 
willow flycatcher, in its riparian areas, such as Santa Margarita 
River, within the framework of programmatic management plans, approved 
in a biological opinion issued by the Service on October 30, 1995 
(USFWS 1995a). The biological opinion discusses ongoing and planned 
training activities, infrastructure maintenance activities, several 
construction projects, and a Riparian and Estuarine Ecosystem 
Conservation Plan and assesses potential impacts to six federally-
listed species, including the southwestern willow flycatcher. The 
Conservation Plan is designed to maintain and enhance the biological 
diversity of the riparian ecosystem on Camp Pendleton and includes 
promoting the growth of sensitive species, including the southwestern 
willow flycatcher. Actions to assist in promoting conservation of the 
southwestern willow flycatcher on MCBCP include maintaining 
connectivity of riparian habitats; eradicating exotic plant communities 
to further establishment of successional stages of riparian scrub and 
riparian woodland habitat; and continuing to implement brown-headed 
cowbird management. The terms and conditions of the biological opinion 
for the Conservation Plan form the basis for portions of MCBCP's INRMP 
that was completed in 2001. Therefore, since the Conservation Plan 
provides a benefit to the species as outlined above, and since the 
INRMP is based on this plan, we have determined that the INRMP does 
provide a benefit for the southwestern willow flycatcher.
    Camp Pendleton has demonstrated ongoing funding of their INRMP and 
management of endangered and threatened species. According to their May 
26, 2005, comment letter, in fiscal year 2003, Camp Pendleton spent 
approximately $5 million to fund INRMP-driven projects and to assure 
its implementation. During fiscal year 2004, they applied over $3.5 
million toward projects, programs, and activities that provide direct 
and indirect benefit to the management and conservation of Base natural 
resources. Moreover, in partnership with the Service, Camp Pendleton is 
funding two Service biologists to assist in implementing their Sikes 
Act program and buffer lands acquisition initiative.
    Based on Camp Pendleton's past history for listed species and their 
Sikes Act program, we believe that there is a high degree of certainty 
that the conservation efforts of their INRMP will be effective. Service 
biologists work closely with Camp Pendleton on a variety of endangered 
and threatened species issues, including the southwestern willow 
flycatcher. The management programs and Base directives to avoid and 
minimize impacts to the species are consistent with current and ongoing 
section 7 consultations with Camp Pendleton. Therefore, we find that 
the INRMP for Camp Pendleton provides a benefit for the southwestern 
willow flycatcher and are exempting from critical habitat all lands on 
Camp Pendleton, including lands leased to the State, pursuant to 
section 4(a)(3) of the Act.

Fallbrook Naval Weapons Station

    Fallbrook Naval Weapons Station (NWS), located in northern San 
Diego County, is approximately 8,850 ac (3,581 ha). Fallbrook Naval 
Weapons Station contains high quality habitat for the southwestern 
willow flycatcher within the Santa Margarita watershed.
    In 1996, Fallbrook NWS completed an INRMP to address conservation 
and management recommendations within the scope of the installation's 
military mission. The INRMP provides conservation measures that will 
directly and indirectly benefit the southwestern willow flycatcher and 
other listed species found on the Naval Station. The 1996 INRMP was 
prepared with input from the Service and incorporates conservation 
measures outlined in several previously completed consultations between 
the Service and Fallbrook NWS. Fallbrook NWS is currently working with 
the Service to revise and update their INRMP.
    Additionally, Fallbrook NWS has completed a formal section 7 
consultation with the Service to revise their Fire Management Plan 
(FMP) to provide more effective fuels management and wildfire control, 
while minimizing impacts to listed species on the installation, 
including the southwestern willow flycatcher. This plan is a primary 
component of the installation's effort to develop and implement an 
updated INRMP. The revised FMP incorporates fuels management and fire 
suppression activities with habitat management needs of the 
southwestern willow flycatcher and other listed species to promote 
conservation and recovery of these species on Fallbrook NWS. This has 
resulted in minimal affects to surrounding habitat, including portions 
of the Santa Margarita River. Based on information provided in the FMP, 
breeding and/or territorial flycatchers have not been detected on 
Fallbrook NWS since the listing of the flycatcher under the Act, with 
all recent sightings determined to be transient birds. Measures to 
offset, avoid or minimize affects to the least Bell's vireo--another 
riparian dependent species--as described in our biological opinion on 
the FMP are also adequate to avoid effects on transient southwestern 
willow flycatchers. Additionally, Fallbrook NWS has agreed to provide 
information to us regarding any future sightings of southwestern willow 
flycatchers and will conduct follow-up surveys to determine their 
breeding status. If breeding or territorial flycatchers are detected on 
the Fallbrook NWS, the U.S. Navy and we will cooperate to determine 
whether additional measures to avoid and minimize the effects of fire 
management activities on the

[[Page 60928]]

southwestern willow flycatcher are necessary.
    The Fallbrook NWS has also provided private researchers and the 
general public with opportunities for scientific and educational 
pursuits on the installation while controlling access to sensitive 
habitat areas to avoid causing inadvertent harm to species, including 
the southwestern willow flycatcher.
    Based on Fallbrook NWS's Sikes Act program, we believe there is a 
high degree of certainty that the conservation efforts of their INRMP 
will be effective. Service biologists work closely with Fallbrook Naval 
Weapons Station on a variety of endangered and threatened species 
issues, including the southwestern willow flycatcher. The management 
programs and Station's directives to avoid and minimize impacts to the 
species are consistent with current and ongoing section 7 consultations 
with Fallbrook NWS. Therefore, we find that the INRMP for Fallbrook NWS 
provides a benefit for the southwestern willow flycatcher and are 
exempting from critical habitat all lands on Fallbrook NWS pursuant to 
section 4(a)(3) of the Act.

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

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data available after taking into consideration the economic impact, 
impact on national security, and any other relevant impact, of 
specifying any particular area as critical habitat. An area may be 
excluded from critical habitat if it is determined that the benefits of 
such exclusion outweigh the benefits of specifying a particular area as 
critical habitat, unless the failure to designate such area as critical 
habitat will result in the extinction of the species. Consequently, we 
may exclude an area from critical habitat based on economic impacts, 
impacts on national security, or other relevant impacts such as 
preservation of conservation partnerships, if we determine the benefits 
of excluding an area from critical habitat outweigh the benefits of 
including the area in critical habitat, provided the action of 
excluding the area will not result in the extinction of the species.
    In our critical habitat designation we use the provisions outlined 
in section 4(b)(2) of the Act to evaluate those specific areas on which 
are found physical and biological features essential to the 
conservation of the species to determine which areas to propose and 
subsequently finalize (i.e., designate) as critical habitat. On the 
basis of our evaluation, we have determined that the benefits of 
excluding certain lands from the designation of critical habitat for 
the southwestern willow flycatcher outweighs the benefits of their 
inclusion, and have subsequently excluded those lands from this 
designation pursuant to section 4(b)(2) of the Act as discussed below.
    Areas excluded pursuant to section 4(b)(2) included areas with: (1) 
Legally operative HCPs that cover the subspecies and provide assurances 
that the conservation measures for the subspecies will be implemented 
and effective; (2) draft HCPs that cover the subspecies, have undergone 
public review and comment, and provide assurances that the conservation 
measures for the subspecies will be implemented and effective (i.e., 
pending HCPs); (4) Tribal conservation plans/programs that cover the 
subspecies and provide assurances that the conservation measures for 
the subspecies will be implemented and effective; (5) State and Federal 
conservation plans/programs that provide assurances that the 
conservation measures for the subspecies will be implemented and 
effective; (6) National Wildlife Refuges with Comprehensive 
Conservation Plans (CCPs) or programs that provide assurances that the 
conservation measures for the subspecies will be implemented and 
effective; and (7) Partnerships, conservation plans/easements, or other 
type of formalized relationship/agreement where a conservation plans/
program provide assurances that the conservation measures for the 
subspecies will be implemented and effective. The relationship of 
critical habitat to these types of areas is discussed in detail in the 
following paragraphs.
    Within the areas containing features essential to the conservation 
of the southwestern willow flycatcher across six states there are 
private lands with legally operative HCPs, State and Federal Wildlife 
Areas with conservation plans/programs, Tribal lands, National Wildlife 
Refuges, and other private lands with management plans, partnerships, 
and/or programs in place for the southwestern willow flycatcher.
    We have considered, but are excluding from critical habitat for the 
southwestern willow flycatcher pursuant to section 4(b)(2) of the Act, 
lands containing essential features in the following areas. The 
following lands are covered by the completed HCPs: Western Riverside 
Multiple Species Habitat Conservation Plan, San Diego County Multiple 
Species Conservation Plan, City of Carlsbad Habitat Management Program, 
Lower Colorado River Multiple Species Conservation Plan, Roosevelt 
Habitat Conservation Plan (only Roosevelt Lake). The following Tribes 
and Pueblos have completed and are implementing Southwestern Willow 
Flycatcher Management Plans: Hualapai, Chemehuevi, Colorado River, Fort 
Mojave, Quechan (Fort Yuma), Yavapai-Apache, San Carlos, Isleta Pueblo, 
La Jolla, and Rincon. The following Northern New Mexico Pueblos have 
established southwestern willow flycatcher management partnerships with 
the Service: San Illdefonso, Santa Clara, and San Juan. The following 
NWRs have completed CCPs or have developed management programs and 
implementing management strategies specific to southwestern willow 
flycatcher habitat: Pahranagat, Havasu, Cibola, Imperial, Bill 
Williams, Alamosa, Bosque del Apache, and Sevilleta. The following 
State and Federal Wildlife Areas have completed management plans/
programs that are being implemented for the protection of southwestern 
willow flycatcher habitat: Overton and Key Pittman State Wildlife 
Areas, NV; Alamo State Wildlife Area, AZ; South Fork Kern River 
Wildlife Area, CA, Sprague Ranch, Kern River, CA. Other lands excluded 
under section 4(b)(2) of the Act due to southwestern willow flycatcher/
riparian habitat conservation plans/programs/easements and/or 
partnerships include: Los Angeles Department of Water and Power, Owens 
River, CA; San Luis Valley Partnership, Rio Grande and Conejos Rivers, 
CO; Hafenfeld Ranch, Kern River, CA; Salt River Project--Horseshoe 
Lake, Verde River, AZ, the City of Albuquerque/Rio Grande Valley State 
Park, Rio Grande, NM, and U-Bar Ranch, Gila River, NM. See below for a 
detailed discussion of our exclusion of these lands under section 
4(b)(2) of the Act.

General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process

    The most direct, and potentially largest regulatory benefit of 
critical habitat is that federally authorized, funded, or carried out 
activities require consultation pursuant to section 7 of the Act to 
ensure that they are not likely to destroy or adversely modify critical 
habitat. There are two limitations to this regulatory effect. First, it 
only applies where there is a Federal nexus--if there is no Federal 
nexus, designation itself does not restrict actions that destroy or 
adversely modify critical habitat.

[[Page 60929]]

Second, it only limits destruction or adverse modification. By its 
nature, the prohibition on adverse modification is designed to ensure 
those areas that contain the physical and biological features essential 
to the conservation of the species or unoccupied areas that are 
essential to the conservation are not eroded. Critical habitat 
designation alone, however, does not require specific steps toward 
recovery.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts are 
likely to occur, then formal consultation should be initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of critical habitat, with separate analyses being 
made under both the jeopardy and the adverse modification standards. 
For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not contain any mandatory 
reasonable and prudent measures or terms and conditions. Mandatory 
reasonable and prudent alternatives to the proposed Federal action 
would only be issued when the biological opinion results in a jeopardy 
or adverse modification conclusion.
    We also note that for 30 years prior to the Ninth Circuit Court's 
decision in Gifford Pinchot, the Service equated the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat. The Court ruled that the Service could no longer equate the 
two standards and that adverse modification evaluations require 
consideration of impacts on the recovery of species. Thus, under the 
Gifford Pinchot decision, critical habitat designations may provide 
greater benefits to the recovery of a species.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat in that it provides the framework for the 
consultation process.

Educational Benefits of Critical Habitat

    The benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and contribute to conservation 
efforts by other parties by clearly delineating areas of high 
conservation value for the southwestern willow flycatcher. In general 
the educational benefit of a critical habitat designation always 
exists, although in some cases it may be redundant with other 
educational effects. For example, HCPs have significant public input 
and may largely duplicate the educational benefit of a critical habitat 
designation. This benefit is closely related to a second, more indirect 
benefit; in that designation of critical habitat would inform State 
agencies and local governments about areas that could be conserved 
under State laws or local ordinances.
    However, we believe that there would be little additional 
informational benefit gained from the designation of critical habitat 
for the exclusions we are making in this rule because these areas were 
included in the proposed rule as having features essential to the 
conservation of the flycatcher. Consequently, we believe that the 
informational benefits are already provided even though these areas are 
not designated as critical habitat. Additionally, the purpose normally 
served by the designation of informing State agencies and local 
governments about areas which would benefit from protection and 
enhancement of essential features and habitat for the southwestern 
willow flycatcher is already well established among State and local 
governments, and Federal agencies in those areas which we are excluding 
in this rule on the basis of HCPs, and other existing habitat 
management protections.
    As noted elsewhere in this rule, the southwestern willow flycatcher 
is migratory and thus may receive some additional benefit from a 
critical habitat designation in that it is not present year-round in 
the U.S. However, we believe that based on the educational benefits 
already being provided as to the importance of these areas, as 
described above, and the fact that effects to flycatchers as a result 
of impacts to habitat are consulted upon regardless of what time of 
year impacts may occur, minimal if any additional benefits would 
result.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat.

Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of the Act

    Another process for long term habitat protection is available under 
section 10(a)(1)(B) of the Act, which authorizes us to issue permits 
allowing the take of listed wildlife species incidental to otherwise 
lawful activities to non-Federal entities such as private landowners 
and State and local governments. The incidental take permit can not be 
issued until the permittee establishes habitat protection pursuant to 
the terms of an HCP. The HCP must identify conservation measures that 
the permittee agrees to implement for the species to minimize and 
mitigate the impacts of the permitted incidental take, and must have 
funding for these conservation measures assured before the take permit 
is issued. Frequently, as is the case with the HCPs for the 
southwestern willow flycatcher discussed below, the habitat 
protections, inclusive of protections for essential features, are long 
term management actions which assist in providing significant 
conservation benefit to the essential features, the habitat mosaic, and 
the subpecies.
    HCPs vary in size and may provide for incidental take coverage and 
conservation management for one or many federally-listed species. 
Additionally, more than one applicant may participate in the 
development and implementation of an HCP. Some areas occupied by the 
southwestern willow flycatcher involve several complex HCPs that 
address multiple species, cover large areas, and are important to many 
participating permittees. Large regional HCPs expand upon the basic 
requirements set forth in section 10(a)(1)(B) of the Act because they 
reflect a voluntary, cooperative approach to large-scale habitat and 
species conservation planning. Many of the large regional HCPs in 
southern California have been, or are being, developed to provide for 
the conservation of numerous federally-listed species and unlisted 
sensitive species and the habitat that provides for their biological 
needs. These HCPs are designed to proactively implement conservation 
actions to address future projects that are anticipated to occur within 
the planning area of the HCP. However, given the broad scope of these 
regional HCPs, not all projects envisioned to potentially occur may 
actually take place. The State of California also has a Natural 
Communities Conservation Program (NCCP) process that is very similar to 
the Federal HCP process and is often completed in conjunction with the 
HCP

[[Page 60930]]

process. We recognize that many of the projects with HCPs also have 
state issued NCCPs.
    In the case of approved regional HCPs and accompanying Implementing 
Agreements (IAs) (e.g., those sponsored by cities, counties, or other 
local jurisdictions) that provide for incidental take coverage for the 
southwestern willow flycatcher, a primary goal of these regional plans 
is to provide for the protection and management of features essential 
for the species' conservation and thus habitat necessary for 
conservation, while directing development to other areas. In the case 
of approved regional HCPs and accompanying Implementing Agreements 
(IAs) (e.g., those sponsored by cities, counties, or other local 
jurisdictions) that provide for incidental take coverage for the 
southwestern willow flycatcher, a primary goal of these regional plans 
is to provide for the protection and management of habitat essential 
for the species' conservation, while directing development to other 
areas. The regional HCP development process provides an opportunity for 
more intensive data collection and analysis regarding the use of 
particular habitat areas by the southwestern willow flycatcher. The 
process also enables us to conduct detailed evaluations of the 
importance of such lands to the long-term survival of the species in 
the context of constructing a system of interlinked habitat blocks that 
provide for its biological needs.
    We believe the conservation achieved through implementing HCPs is 
typically greater than would be achieved through multiple site-by-site, 
project-by-project, section 7 consultations involving consideration of 
critical habitat. HCPs cause permittees to consider, evaluate, and 
commit resources to implement long-term management to particular 
habitat for at least one and possibly other listed or sensitive 
species. HCPs undergo analysis under NEPA, involve public 
participation, and go through intra-Service section 7 consultation for 
issuance of the permit. In contrast, section 7 consultations for 
critical habitat only consider listed species in the project area 
evaluated and Federal agencies are only committed to prevent adverse 
modification to critical habitat caused by the particular project and 
are not committed to provide conservation or long-term benefits to 
areas not affected by the proposed project. Thus, any management plan 
or HCP which considers enhancement or recovery as the management 
standard will always provide as much or more benefit than a 
consultation for critical habitat designation conducted under the 
standards required by the Ninth Circuit in the Gifford Pinchot 
decision.
    Below we provide our specific 4(b)(2) discussions for each of the 
HCPs that we are excluding from this final designation.

Santa Ana Management Unit, CA

Western Riverside County Multiple Species Habitat Conservation Plan 
(MSHCP)
    The Western Riverside Multiple Species Habitat Conservation Plan 
(MSHCP) was finalized and approved on June 22, 2004. Participants in 
this HCP include 14 cities; the County of Riverside, including the 
Riverside County Flood Control and Water Conservation Agency, Riverside 
County Transportation Commission, Riverside County Parks and Open Space 
District, and Riverside County Waste Department; the California 
Department of Parks and Recreation; and the California Department of 
Transportation. The Western Riverside MSHCP is a subregional plan under 
the State's NCCP and was developed in cooperation with the California 
Department of Fish and Game. Within the 510,000 ha (1.26 million ac) 
planning area of the MSHCP, approximately 62,000 ha (153,000 ac) of 
diverse habitats are being conserved. The conservation of 62,000 ha 
(153,000 ac) complements other existing natural and open space areas 
that are already conserved through other means (e.g., State parks, 
USFS, and County park lands). An important objective of the MSHCP is to 
implement measures, including monitoring and management, necessary to 
conserve important habitat for the southwestern willow flycatcher that 
occurs within the plan's boundaries.
    The MSHCP Conservation Area will include at least 4,282 ha (10,580 
ac) of flycatcher habitat (breeding and migration habitat) including 
six core areas of high quality habitat and interconnecting linkages, 
including the segments of the Santa Ana River, San Timoteo Canyon/
Yucaipa Creek, and Temecula Creek (including Vail Lake). The plan aims 
to conserve 100 percent of breeding habitat for the southwestern willow 
flycatcher, including buffer areas 100 m (328 ft) adjacent to breeding 
areas. In addition, the MSHCP requires compliance with a Riparian/
Riverine Areas and Vernal Pool policy that contains provisions 
requiring 100 percent avoidance and long-term management and protection 
of breeding habitat not included in the conservation areas, unless a 
Biologically Equivalent or Superior Preservation Determination can 
demonstrate that a proposed alternative will provide equal or greater 
conservation benefits than avoidance. We completed an internal 
consultation on the effects of the plan on the southwestern willow 
flycatcher and its essential habitat that is found within the plan 
boundaries, and determined that implementation of the plan provides for 
the conservation of the species because it provides for the 
conservation of breeding and migration flycatcher habitat, the 
conservation of dispersal habitat and adjacent upland areas, surveys 
for undiscovered populations, and the maintenance and potential 
restoration of suitable habitat areas within the conservation area.
    We are excluding portions of the Santa Ana Watershed, including the 
Santa Ana River, San Timeteo Canyon/Yucaipa Creek, and Temecula Creek 
(including Vail Lake) containing features essential to the conservation 
of the flycatcher from the final designation of critical habitat for 
the southwestern willow flycatcher pursuant to section 4(b)(2) of the 
Act because it is within the planning area boundary for the Western 
Riverside MSHCP.
(1) Benefits of Inclusion
    We believe that there is minimal benefit from designating critical 
habitat for the southwestern willow flycatcher within the MSHCP 
because, as explained above, these lands are already managed for the 
conservation of species covered by the MSHCP, including this 
subspecies.
    As discussed above in the ``General Principles of Section 7 
Consultations Used in the 4(b)(2) Balancing Process'' section, a 
benefit of including an area within a critical habitat designation is 
the protection provided by section 7(a)(2) of the Act that directs 
Federal agencies to ensure that their actions do not result in the 
destruction or adverse modification of critical habitat. We completed a 
section 7 consultation on the issuance of the section 10(a)(1)(B) 
permit for the MSHCP on June 22, 2004, and concluded that the 
southwestern willow flycatcher was adequately conserved and the 
issuance of the permit would not jeopardize the continued existence of 
this subspecies.
    The areas excluded as critical habitat are currently occupied by 
the species. If these areas were designated as critical habitat, any 
actions with a Federal nexus which might adversely affect the critical 
habitat would require a consultation with us, as explained above. 
However, inasmuch as this area is currently occupied by the species, 
consultation for Federal activities which might adversely impact the 
species or

[[Page 60931]]

would result in take would be required even without the critical 
habitat designation. The requirement to conduct such consultation would 
occur regardless of whether the authorization for incidental take 
occurs under either section 7 or section 10 of the Act.
    The inclusion of these areas of non-Federal land as critical 
habitat would provide some additional Federal regulatory benefits for 
the species consistent with the conservation standard based on the 
Ninth Circuit Court's decision in Gifford Pinchot. A benefit of 
inclusion would be the requirement of a Federal agency to ensure that 
their actions on these non-Federal lands do not likely result in the 
destruction or adverse modification of critical habitat. This 
additional analysis to determine destruction or adverse modification of 
critical habitat is likely to be small because the lands are not under 
Federal ownership and any Federal agency proposing a Federal action on 
these areas of non-Federal lands would likely consider the conservation 
value of these lands as identified in the Western Riverside County 
MSHCP and take the necessary steps to avoid jeopardy or the destruction 
or adverse modification of critical habitat.
    We believe that designating any non-Federal lands within existing 
public/quasi public lands, proposed conceptual reserve design lands, 
and lands targeted for conservation within the Western Riverside County 
MSCHP Plan Area, would provide little additional educational and 
Federal regulatory benefits for the species. The additional educational 
benefits that might arise from critical habitat designation have been 
largely accomplished through the public review and comment of the 
environmental impact documents which accompanied the development of the 
Western Riverside County MSHCP and the recognition by some of the 
landowners of the presence of the endangered southwestern willow 
flycatcher and the value of their lands for the conservation and 
recovery of the species (e.g., County of Riverside Regional Parks and 
Open Space District). In addition, as discussed in the Educational 
Benefits of Critical Habitat section above, we believe the conservation 
achieved through implementing HCPs is typically greater than would be 
achieved through multiple site-by-site, project-by-project, section 7 
consultations involving consideration of critical habitat.
    We believe that there would be little additional informational 
benefit gained from including the MSHCP within the designation because 
this area was included in the proposed rule as having lands containing 
features essential to the flycatcher. Consequently, we believe that the 
informational benefits are already provided even though this area is 
not designated as critical habitat. Additionally, the purpose of the 
MSHCP to provide protection and enhancement of habitat for the 
southwestern willow flycatcher is already well established among State 
and local governments, and Federal agencies.
(2) Benefits of Exclusion
    As mentioned above, the Western Riverside MSHCP provides for the 
conservation of breeding and migration flycatcher habitat, the 
conservation of dispersal habitat and adjacent upland areas, surveys 
for undiscovered populations, and the maintenance and potential 
restoration of suitable habitat areas within the conservation area. The 
Western Riverside MSHCP therefore provides for protection of the PCEs, 
and addresses special management needs such as surveys in suitable 
habitat and management of essential features and habitat. Designation 
of critical habitat would therefore be redundant on these lands, and 
would not provide additional protections.
    The benefits of excluding lands within HCPs from critical habitat 
designation include relieving landowners, communities, and counties of 
any additional regulatory burden that might be imposed by critical 
habitat. Many HCPs, particularly large regional HCPs take many years to 
develop and, upon completion, become regional conservation plans that 
are consistent with the recovery objectives for listed species that are 
covered within the plan area. Additionally, many of these HCPs provide 
conservation benefits to unlisted, sensitive species. Imposing an 
additional regulatory review after an HCP is completed solely as a 
result of the designation of critical habitat may undermine 
conservation efforts and partnerships in many areas. In fact, it could 
result in the loss of benefits if participants abandon the voluntary 
HCP process because it may result in requiring additional regulations 
compared to other parties who have not voluntarily participated in 
species conservation. Designation of critical habitat within the 
boundaries of approved HCPs could be viewed as a disincentive to those 
entities currently developing HCPs or contemplating them in the future.
    A related benefit of excluding lands within HCPs from critical 
habitat designation is the unhindered, continued ability to seek new 
partnerships with future HCP participants including States, Counties, 
local jurisdictions, conservation organizations, and private 
landowners, which together can implement conservation actions that we 
would be unable to accomplish otherwise. If lands within HCP plan areas 
are designated as critical habitat, it would likely have a negative 
effect on our ability to establish new partnerships to develop HCPs, 
particularly large, regional HCPs that involve numerous participants 
and address landscape-level conservation of species and habitats. By 
excluding these lands, we preserve our current partnerships and 
encourage additional conservation actions in the future.
    Furthermore, an HCP or NCCP/HCP application must itself be 
consulted upon. While this consultation will not look specifically at 
the issue of adverse modification to critical habitat, unless critical 
habitat has already been designated within the proposed plan area, it 
will determine if the HCP jeopardizes the species in the plan area. The 
jeopardy analysis is similar to the analysis of adverse modification to 
critical habitat. In addition, Federal actions not covered by the HCP 
in areas occupied by listed species would still require consultation 
under section 7 of the Act due to the presence of the species. HCP and 
NCCP/HCPs typically provide for greater conservation benefits to a 
covered species than section 7 consultations because HCPs and NCCP/HCPs 
assure the long-term protection and management of a covered species and 
its habitat. In addition, funding for such management is assured 
through the standards found in the 5 Point Policy for HCPs (64 FR 
35242) and the HCP ``No Surprises'' regulation (63 FR 8859). Such 
assurances are typically not provided by section 7 consultations that, 
in contrast to HCPs, often do not commit the project proponent to long-
term special management or protections. Thus, a consultation typically 
does not accord the lands it covers the extensive benefits a HCP or 
NCCP/HCP provides. The development and implementation of HCPs or NCCP/
HCPs provide other important conservation benefits, including the 
development of biological information to guide the conservation efforts 
and assist in species conservation, and the creation of innovative 
solutions to conserve species while allowing for development.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, we believe that the benefits of excluding the Western 
Riverside MSHCP from the designation of critical habitat for the 
southwestern willow flycatcher outweigh the benefits

[[Page 60932]]

of including this area in critical habitat. We find that including the 
Western Riverside MSHCP would result in very minimal, if any, 
additional benefits to the southwestern willow flycatcher, as explained 
above.
    We also find that the exclusion of these lands will not lead to the 
extinction of the subspecies, nor hinder its recovery because the 
management emphasis of the Western Riverside MSHCP is to protect and 
enhance habitat for the southwestern willow flycatcher.
    We believe that exclusion of these lands from critical habitat will 
not result in extinction of the southwestern willow flycatcher since 
these lands will be conserved and managed for the benefit of this 
species pursuant to the Western Riverside County MSHCP. The Western 
Riverside MSHCP includes specific conservation objectives, survey 
requirements, avoidance and minimization measures, and management for 
the southwestern willow flycatcher that exceed any conservation value 
provided as a result of a critical habitat designation.
    The jeopardy standard of section 7 and routine implementation of 
habitat conservation through the section 7 process also provide 
assurances that the species will not go extinct. In addition, the 
species is protected from take under section 9 of the Act. The 
exclusion leaves these protections unchanged from those that would 
exist if the excluded areas were designated as critical habitat.
    Critical habitat is being designated for the southwestern willow 
flycatcher in other areas that will be accorded the protection from 
adverse modification by Federal actions using the conservation standard 
based on the Ninth Circuit Court's decision in Gifford Pinchot. 
Additionally, the species occurs on lands protected and managed either 
explicitly for the species, or indirectly through more general 
objectives to protect natural values, this factor acting in concert 
with the other protections provided under the Act for these lands 
absent designation of critical habitat on them, and acting in concert 
with protections afforded each species by the remaining critical 
habitat designation for the species, lead us to find that exclusion of 
these lands within the Western Riverside County MSHCP will not result 
in extinction of the southwestern willow flycatcher.

San Diego Management Unit

San Diego Multiple Species Conservation Program (MSCP)
    Below we first provide some general background information on the 
San Diego Multiple Species Conservation Plan/Habitat Conservation Plan 
(MSCP/HCP), followed by an analysis pursuant to section 4(b)(2) of the 
Act of the benefits of including San Diego MSCP/HCP land within the 
critical habitat designation, an analysis of the benefits of excluding 
this area, and an analysis of why we believe the benefits of exclusion 
are greater than those of inclusion.
    In southwestern San Diego County, the MSCP effort encompasses more 
than 236,000 ha (582,000 ac) and involves the participation of the 
County of San Diego and 11 cities, including the City of San Diego. 
This regional HCP is also a regional subarea plan under the NCCP 
program and has been developed in cooperation with California 
Department of Fish and Game. The MSCP provides for the establishment of 
approximately 69,573 ha (171,000 ac) of preserve areas to provide 
conservation benefits for 85 federally listed and sensitive species 
over the life of the permit (50 years), including the southwestern 
willow flycatcher. We have determined that portions of lands within the 
boundaries of the San Diego Multiple MSCP contain features essential to 
the conservation of the southwestern willow flycatcher, including areas 
along portions of the San Dieguito (including Lake Hodges), Santa 
Ysabel, and San Diego Rivers. These particular areas lie within the 
boundaries of approved subarea plans.
    Conservation measures specific to the southwestern willow 
flycatcher within the San Diego MSCP/HCP include the preservation and 
management of 3,845 ha (9,500 ac) (81 percent) of the riparian habitat 
within the planning area, as well as eight of the nine known breeding 
locations at the time of the plan's development. Surveys are required 
for projects potentially affecting this species, and breeding habitat 
will be identified and avoided. Specific management directives include 
measures to provide appropriate flycatcher habitat, upland buffers for 
all known flycatcher populations, cowbird control, specific measures to 
protect against detrimental edge effects, and monitoring.
(1) Benefits of Inclusion
    We believe that there is minimal benefit from designating critical 
habitat for the southwestern willow flycatcher within the San Diego 
MSCP/HCP because, as explained above, these lands are already managed 
for the conservation of covered species, including this subspecies.
    As discussed above in the ``General Principles of Section 7 
Consultations Used in the 4(b)(2) Balancing Process'' section, a 
benefit of including an area within a critical habitat designation is 
the protection provided by section 7(a)(2) of the Act that directs 
Federal agencies to ensure that their actions do not result in the 
destruction or adverse modification of critical habitat. We completed a 
section 7 consultation on the issuance of the section 10(a)(1)(B) 
permit for the County of San Diego subarea plan within the San Diego 
MSCP/HCP on May 12, 1998, and concluded that the southwestern willow 
flycatcher was adequately conserved and the issuance of the permit 
would not jeopardize the continued existence of this subspecies.
    The areas excluded as critical habitat are currently occupied by 
the subspecies. If these areas were designated as critical habitat, any 
actions with a Federal nexus which might adversely affect the critical 
habitat would require a consultation with us, as explained above. 
However, inasmuch as this area is currently occupied by the subspecies, 
consultation for Federal activities which might adversely impact the 
subspecies or would result in take would be required even without the 
critical habitat designation. The requirement to conduct such 
consultation would occur regardless of whether the authorization for 
incidental take occurs under either section 7 or section 10 of the Act.
    The inclusion of these areas of non-Federal land as critical 
habitat would provide some additional Federal regulatory benefits for 
the subspecies consistent with the conservation standard based on the 
Ninth Circuit Court's decision in Gifford Pinchot. A benefit of 
inclusion would be the requirement of a Federal agency to ensure that 
their actions on these non-Federal lands do not likely result in the 
destruction or adverse modification of critical habitat. This 
additional analysis to determine destruction or adverse modification of 
critical habitat is likely to be small because the lands are not under 
Federal ownership and any Federal agency proposing a Federal action on 
these areas of non-Federal lands would likely consider the conservation 
value of these lands as identified in the San Diego MSCP/HCP and take 
the necessary steps to avoid jeopardy or the destruction or adverse 
modification of critical habitat.
    We believe that designating any lands within the San Diego MSCP/HCP 
Plan

[[Page 60933]]

Area would provide little additional educational and Federal regulatory 
benefits for the subspecies. The additional educational benefits that 
might arise from critical habitat designation have been largely 
accomplished through the public review and comment of the environmental 
impact documents which accompanied the development of the San Diego 
MSCP/HCP Plan Area and the recognition by some of the landowners of the 
presence of the endangered southwestern willow flycatcher and the value 
of their lands for the conservation and recovery of the species. In 
addition, as discussed in the Educational Benefits of Critical Habitat 
section above, we believe the conservation achieved through 
implementing HCPs is typically greater than would be achieved through 
multiple site-by-site, project-by-project, section 7 consultations 
involving consideration of critical habitat.
    We believe that there would be little additional informational 
benefit gained from including the San Diego MSCP/HCP Plan Area within 
the designation because this area was included in the proposed rule as 
having lands that contain features essential to the conservation of the 
flycatcher. Consequently, we believe that the informational benefits 
are already provided even though this area is not designated as 
critical habitat. Additionally, the purpose of the San Diego MSCP/HCP 
to provide protection and enhancement of habitat for the southwestern 
willow flycatcher is already well established among State and local 
governments, and Federal agencies.
(2) Benefits of Exclusion
    As mentioned above, the San Diego MSCP/HCP provides for the 
conservation of occupied and historic habitat, the removal of non-
native predators, and the avoidance of impacts if a population were to 
be found. The San Diego MSCP/HCP therefore provides for protection of 
the PCEs, and addresses special management needs such as surveys in 
suitable habitat and management of habitat. Designation of critical 
habitat would therefore be redundant on these lands, and would not 
provide additional protections.
    The benefits of excluding lands within HCPs from critical habitat 
designation include relieving landowners, communities, and counties of 
any additional regulatory burden that might be imposed by critical 
habitat. Many HCPs, particularly large regional HCPs take many years to 
develop and, upon completion, become regional conservation plans that 
are consistent with the recovery objectives for listed species that are 
covered within the plan area. Additionally, many of these HCPs provide 
conservation benefits to unlisted, sensitive species. Imposing an 
additional regulatory review after an HCP is completed solely as a 
result of the designation of critical habitat may undermine 
conservation efforts and partnerships in many areas. In fact, it could 
result in the loss of benefits to the subspecies if participants 
abandon the voluntary HCP process because it may result in additional 
regulations requiring more of them than other parties who have not 
voluntarily participated in conservation efforts for the subspecies. 
Designation of critical habitat within the boundaries of approved HCPs 
could be viewed as a disincentive to those entities currently 
developing HCPs or contemplating them in the future.
    A related benefit of excluding lands within HCPs from critical 
habitat designation is the unhindered, continued ability to seek new 
partnerships with future HCP participants including States, counties, 
local jurisdictions, conservation organizations, and private 
landowners, which together can implement conservation actions that we 
would be unable to accomplish otherwise. If lands within HCP plan areas 
are designated as critical habitat, it would likely have a negative 
effect on our ability to establish new partnerships to develop HCPs, 
particularly large, regional HCPs that involve numerous participants 
and address landscape-level conservation of species and habitats. By 
excluding these lands we preserve our current partnerships and 
encourage additional conservation actions in the future.
    Furthermore, an HCP or NCCP/HCP application must itself be 
consulted upon. While this consultation will not look specifically at 
the issue of adverse modification to critical habitat, unless critical 
habitat has already been designated within the proposed plan area, it 
will determine if the HCP jeopardizes the species in the plan area. The 
jeopardy analysis is similar to the analysis of adverse modification to 
critical habitat. In addition, Federal actions not covered by the HCP 
in areas occupied by listed species would still require consultation 
under section 7 of the Act due to the presence of the species. HCP and 
NCCP/HCPs typically provide for greater conservation benefits to a 
covered species than section 7 consultations because HCPs and NCCP/HCPs 
assure the long-term protection and management of a covered species, 
features essential to its conservation, and its habitat. In addition, 
funding for such management is assured through the standards found in 
the 5 Point Policy for HCPs (64 FR 35242) and the HCP ``No Surprises'' 
regulation (63 FR 8859). Such assurances are typically not provided by 
section 7 consultations that, in contrast to HCPs, often do not commit 
the project proponent to long-term special management or protections. 
Thus, a consultation typically does not accord the lands it covers the 
extensive benefits a HCP or NCCP/HCP provides. The development and 
implementation of HCPs or NCCP/HCPs provide other important 
conservation benefits, including the development of biological 
information to guide the conservation efforts and assist in species 
conservation, and the creation of innovative solutions to conserve 
species while allowing for development.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, we believe that the benefits of excluding the San Diego 
MSCP/HCP from the designation of critical habitat for the southwestern 
willow flycatcher outweigh the benefits of including these lands in 
critical habitat. We find that including the San Diego MSCP/HCP would 
result in very minimal, if any, additional benefits to the southwestern 
willow flycatcher, as explained above.
    We also find that the exclusion of these lands will not lead to the 
extinction of the subspecies, nor hinder its recovery because the 
management emphasis of the San Diego MSCP/HCP is to protect and enhance 
habitat for the southwestern willow flycatcher.
    We believe that exclusion of these lands from critical habitat will 
not result in extinction of the southwestern willow flycatcher since 
these lands will be conserved and managed for the benefit of this 
subspecies pursuant to the San Diego MSCP/HCP. The San Diego MSCP/HCP 
includes specific conservation objectives, survey requirements, 
avoidance and minimization measures, and management for the 
southwestern willow flycatcher that exceed any conservation value 
provided as a result of a critical habitat designation, inclusive of 
that following a conservation standard based on the Ninth Circuit 
Court's decision in Gifford Pinchot.
    The jeopardy standard of section 7 and routine implementation of 
habitat conservation through the section 7 process also provide 
assurances that the species will not go extinct. In addition, the 
species is protected from take under section 9 of the Act. The 
exclusion leaves these protections unchanged

[[Page 60934]]

from those that would exist if the excluded areas were designated as 
critical habitat, inclusive of that following a conservation standard 
based on the Ninth Circuit Court's decision in Gifford Pinchot.
    Critical habitat is being designated for the southwestern willow 
flycatcher in other areas that will be accorded the protection from 
adverse modification by Federal actions using the conservation standard 
based on the Ninth Circuit Court's decision in Gifford Pinchot. 
Additionally, the species occurs on lands protected and managed either 
explicitly for the species, or indirectly through more general 
objectives to protect natural values, this factor acting in concert 
with the other protections provided under the Act for these lands 
absent designation of critical habitat on them, and acting in concert 
with protections afforded each species by the remaining critical 
habitat designation for the species, lead us to find that exclusion of 
these lands within the San Diego MSCP/HCP will not result in extinction 
of the southwestern willow flycatcher.

San Diego Management Unit

City of Carlsbad's Habitat Management Plan
    The City of Carlsbad's Habitat Management Plan (HMP) was approved 
October 15, 2004. This plan is one of seven subarea plans being 
developed under the umbrella of the North County Multiple Habitat 
Conservation Plan (MHCP) in northern San Diego County. Participants in 
this regional conservation planning effort include the cities of 
Carlsbad, Encinitas, Escondido, Oceanside, San Marcos, Solana Beach, 
and Vista. The subarea plans in development are also proposed as 
subregional plans under the State's NCCP and are being developed in 
cooperation with the California Department of Fish and Game (CDFG). We 
have determined that portions of lands within the boundaries of the HMP 
contain lands with features essential to the conservation of the 
southwestern willow flycatcher, including all of Agua Hedionda Lagoon 
and a portion of Agua Hedionda Creek.
    Approximately 9,943 ha (24,570 ac) of land are within the Carlsbad 
HMP planning area, with about 3,561 ha (8,800 ac) remaining as natural 
habitat for species covered under the plan. Of this remaining habitat, 
the Carlsbad HMP proposes to establish a preserve system for 
approximately 2,746 ha (6,786 ac). Conservation measures specific to 
the southwestern willow flycatcher within the Carlsbad HMP include the 
conservation of 200 ha (494 ac) (86 percent) of the riparian vegetation 
in the city and 10 ha (25 ac) (86 percent) of oak woodland. Preserved 
lands include the four highest quality habitat areas for flycatchers 
identified within the plan area, including lands along Agua Hedionda 
Creek. For proposed projects in or adjacent to suitable habitat outside 
of preserve areas, mandatory surveys will be conducted, with impacts to 
breeding flycatchers completely avoided or reduced, as described in the 
paragraph below. Flycatcher habitat will be managed to restrict 
activities that cause degradation, including livestock grazing, human 
disturbance clearing or alteration of riparian vegetation, brown-headed 
cowbird parasitism, and insufficient water levels leading to loss of 
riparian habitat and surface water. Area-specific management directives 
shall include measures to provide appropriate flycatcher habitat, 
cowbird control, and specific measures to protect against detrimental 
edge effects, and removal of invasive exotic species (e.g., Arundo 
donax). Human access to flycatcher-occupied breeding habitat will be 
restricted during the breeding season (May 1-September 15) except for 
qualified researchers or land managers performing essential preserve 
management, monitoring, or research functions. Projects that cannot be 
conducted without placing equipment or personnel in or adjacent to 
sensitive habitats shall be timed to ensure that habitat is removed 
prior to the initiation of the breeding season.
    Projects having direct or indirect impacts to the southwestern 
willow flycatcher shall adhere to the following measures to avoid or 
reduce impacts: (1) The removal of native vegetation and habitat shall 
be avoided and minimized to the maximum extent practicable; (2) For 
temporary impacts, the work site shall be returned to pre-existing 
contours and revegetated with appropriate native species; (3) 
Revegetation specifications shall ensure creation and restoration of 
riparian woodland vegetation to a quality that eventually is expected 
to support nesting southwestern willow flycatchers, recognize that it 
may take many years (depending on type of activity and timing of flood 
events, etc.) to achieve this state; (4) Construction noise levels at 
the riparian canopy edge shall be kept below 60 dBA Leq (measured as 
Equivalent Sound Level) from 5 a.m. to 11 a.m. during the peak nesting 
period of March 15 to July 15. For the balance of the day/season, the 
noise levels shall not exceed 60 decibels, averaged over a 1-hour 
period on an A-weighted decibel (dBA) (i.e., 1 hour Leq/dBA); (5) 
Brown-headed cowbirds and other exotic species which prey upon the 
flycatcher shall be removed from the site; (6) For new developments 
adjacent to preserve areas that create conditions attractive to brown-
headed cowbirds, jurisdictions shall require monitoring and control of 
cowbirds; (7) Biological buffers of at least 30 m (100 ft) shall be 
maintained adjacent to breeding flycatcher habitat, measured from the 
outer edge of riparian vegetation. Within this 30 m (100 ft) buffer, no 
new development shall be allowed, and the area shall be managed for 
natural biological values as part of the preserve system; (8) Suitable 
unoccupied breeding habitat preserved within the FPA shall be managed 
to maintain or mimic effects of natural stream or river processes 
(e.g., periodic substrate scouring and depositions); and (9) Natural 
riparian connections with upstream riparian habitat shall be maintained 
to ensure linkage to suitable occupied and unoccupied breeding habitat.
(1) Benefits of Inclusion
    We believe that there is minimal benefit from designating critical 
habitat for the southwestern willow flycatcher within the Carlsbad HMP 
because, as explained above, these lands are already managed for the 
conservation of covered species, including this subspecies.
    As discussed above in the ``General Principles of Section 7 
Consultations Used in the 4(b)(2) Balancing Process'' section, a 
benefit of including an area within a critical habitat designation is 
the protection provided by section 7(a)(2) of the Act that directs 
Federal agencies to ensure that their actions do not result in the 
destruction or adverse modification of critical habitat. We completed a 
section 7 consultation on the issuance of the section 10(a)(1)(B) 
permit for the Carlsbad HMP on November 9, 2004, and concluded that the 
southwestern willow flycatcher was adequately conserved and the 
issuance of the permit would not jeopardize the continued existence of 
this subspecies.
    The areas excluded as critical habitat are currently occupied by 
the species. If these areas were designated as critical habitat, any 
actions with a Federal nexus which might adversely affect the critical 
habitat would require a consultation with us, as explained above. 
However, inasmuch as this area is currently occupied by the species, 
consultation for Federal activities which might adversely impact the 
species or would result in take would be required even without the 
critical habitat

[[Page 60935]]

designation. The requirement to conduct such consultation would occur 
regardless of whether the authorization for incidental take occurs 
under either section 7 or section 10 of the Act.
    The inclusion of these areas of non-Federal land as critical 
habitat would provide some additional Federal regulatory benefits for 
the species consistent with the conservation standard based on the 
Ninth Circuit Court's decision in Gifford Pinchot. A benefit of 
inclusion would be the requirement of a Federal agency to ensure that 
their actions on these non-Federal lands do not likely result in the 
destruction or adverse modification of critical habitat. This 
additional analysis to determine destruction or adverse modification of 
critical habitat is likely to be small because the lands are not under 
Federal ownership and any Federal agency proposing a Federal action on 
these areas of non-Federal lands would likely consider the conservation 
value of these lands as identified in the Carlsbad HMP and take the 
necessary steps to avoid jeopardy or the destruction or adverse 
modification of critical habitat.
    We believe that designating any lands within the Carlsbad HMP would 
provide little additional educational and Federal regulatory benefits 
for the species. The additional educational benefits that might arise 
from critical habitat designation have been largely accomplished 
through the public review and comment of the environmental impact 
documents which accompanied the development of the Carlsbad HMP and the 
recognition by some of the landowners of the presence of the endangered 
southwestern willow flycatcher and the value of their lands for the 
conservation and recovery of the species. In addition, as discussed in 
the Educational Benefits of Critical Habitat section above, we believe 
the conservation achieved through implementing HCPs is typically 
greater than would be achieved through multiple site-by-site, project-
by-project, section 7 consultations involving consideration of critical 
habitat.
    We believe that there would be little additional informational 
benefit gained from including the Carlsbad HMP within the designation 
because this area was included in the proposed rule as having lands 
containing features essential to the conservation of the flycatcher. 
Consequently, we believe that the informational benefits are already 
provided even though this area is not designated as critical habitat. 
Additionally, the purpose of the Carlsbad HMP to provide protection and 
enhancement of habitat for the southwestern willow flycatcher is 
already well established among State and local governments, and Federal 
agencies.
(2) Benefits of Exclusion
    As mentioned above, the Carlsbad HMP provides for the conservation 
of occupied and historic habitat, the removal of non-native predators, 
and the avoidance of impacts if a population were to be found. The 
Carlsbad HMP therefore provides for protection of the PCEs, and 
addresses special management needs such as surveys in suitable habitat 
and management of habitat. Designation of critical habitat would 
therefore be redundant on these lands, and would provide little, if 
any, additional protections.
    The benefits of excluding lands within HCPs from critical habitat 
designation include relieving landowners, communities, and counties of 
any additional regulatory burden that might be imposed by critical 
habitat. Many HCPs, particularly large regional HCPs, take many years 
to develop and, upon completion, become regional conservation plans 
that are consistent with the recovery objectives for listed species 
that are covered within the plan area. Additionally, many of these HCPs 
provide conservation benefits to unlisted, sensitive species. Imposing 
an additional regulatory review after an HCP is completed solely as a 
result of the designation of critical habitat may undermine 
conservation efforts and partnerships in many areas. In fact, it could 
result in the loss of species benefits if participants abandon the 
voluntary HCP process because it may result in requiring additional 
regulations compared to other parties who have not voluntarily 
participated in species conservation. Designation of critical habitat 
within the boundaries of approved HCPs could be viewed as a 
disincentive to those entities currently developing HCPs or 
contemplating them in the future.
    A related benefit of excluding lands within HCPs from critical 
habitat designation is the unhindered, continued ability to seek new 
partnerships with future HCP participants including States, Counties, 
local jurisdictions, conservation organizations, and private 
landowners, which together can implement conservation actions that we 
would be unable to accomplish otherwise. If lands within HCP plan areas 
are designated as critical habitat, it would likely have a negative 
effect on our ability to establish new partnerships to develop HCPs, 
particularly large, regional HCPs that involve numerous participants 
and address landscape-level conservation of species and habitats. By 
preemptively excluding these lands, we preserve our current 
partnerships and encourage additional conservation actions in the 
future.
    Furthermore, an HCP or NCCP/HCP application must itself be 
consulted upon. While this consultation will not look specifically at 
the issue of adverse modification to critical habitat, unless critical 
habitat has already been designated within the proposed plan area, it 
will determine if the HCP jeopardizes the species in the plan area. The 
jeopardy analysis is similar to the analysis of adverse modification to 
critical habitat. In addition, Federal actions not covered by the HCP 
in areas occupied by listed species would still require consultation 
under section 7 of the Act. HCP and NCCP/HCPs typically provide for 
greater conservation benefits to a covered species than section 7 
consultations because HCPs and NCCP/HCPs assure the long-term 
protection and management of a covered species and its habitat, and 
funding for such management is assured through the standards found in 
the 5 Point Policy for HCPs (64 FR 35242) and the HCP ``No Surprises'' 
regulation (63 FR 8859). Such assurances are typically not provided by 
section 7 consultations that, in contrast to HCPs, often do not commit 
the project proponent to long-term special management or protections. 
Thus, a consultation typically does not accord the lands it covers the 
extensive benefits a HCP or NCCP/HCP provides. The development and 
implementation of HCPs or NCCP/HCPs provide other important 
conservation benefits, including the development of biological 
information to guide the conservation efforts and assist in species 
conservation, and the creation of innovative solutions to conserve 
species while allowing for development.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, we believe that the benefits of excluding the Carlsbad 
HMP from the designation of critical habitat for the southwestern 
willow flycatcher outweigh the benefits of including these lands in 
critical habitat. We find that including the Carlsbad HMP would result 
in very minimal, if any, additional benefits to the southwestern willow 
flycatcher, as explained above.
    We also find that the exclusion of these lands will not lead to the 
extinction of the subspecies, nor hinder its recovery because the 
management emphasis of the Carlsbad HMP is to protect and enhance 
habitat for the southwestern willow flycatcher.

[[Page 60936]]

    We believe that exclusion of these lands from critical habitat will 
not result in extinction of the southwestern willow flycatcher since 
these lands will be conserved and managed for the benefit of this 
species pursuant to the Carlsbad HMP. The Carlsbad HMP includes 
specific conservation objectives, survey requirements, avoidance and 
minimization measures, and management for the southwestern willow 
flycatcher that exceed any conservation value provided as a result of a 
critical habitat designation.
    The jeopardy standard of section 7 and routine implementation of 
habitat conservation through the section 7 process also provide 
assurances that the species will not go extinct. In addition, the 
species is protected from take under section 9 of the Act. The 
exclusion leaves these protections unchanged from those that would 
exist if the excluded areas were designated as critical habitat.
    Critical habitat is being designated for the southwestern willow 
flycatcher in other areas that will be accorded the protection from 
adverse modification by Federal actions using the conservation standard 
based on the Ninth Circuit Court's decision in Gifford Pinchot. 
Additionally, the species occurs on lands protected and managed either 
explicitly for the species, or indirectly through more general 
objectives to protect natural values, this factor acting in concert 
with the other protections provided under the Act for these lands 
absent designation of critical habitat on them, and acting in concert 
with protections afforded each species by the remaining critical 
habitat designation for the species, lead us to find that exclusion of 
these lands within the Carlsbad HMP will not result in extinction of 
the southwestern willow flycatcher.

Roosevelt Management Unit, AZ

Roosevelt Lake HCP
    A HCP for Salt River Project (SRP) was completed for the operation 
of Roosevelt Dam in Gila and Maricopa Counties, which included as the 
action area the perimeter of Roosevelt Lake's high water mark (ERO 
2002). The Record of Decision for the HCP was dated February 27, 2003. 
The land within the Roosevelt Lake perimeter is Federal land withdrawn 
by the U.S. Bureau of Reclamation and managed by the U.S. Forest 
Service. The flycatcher population at Roosevelt Lake, depending on the 
year, can be the largest population of nesting southwestern willow 
flycatchers across the subspecies range (approximately 150 territories, 
plus an unknown number of unmated floating/non-breeding flycatchers and 
fledglings). Operation of Roosevelt Dam during low water years can 
yield as much as 506 ha (1,250 ac) of occupied flycatcher habitat 
within the perimeter of the high water mark. Annually, the total 
available habitat varies as reservoir levels fluctuate depending on 
annual precipitation with dry years yielding proportionally more 
habitat. We anticipated that creation and loss of habitat would occur 
over the 50 year life of the HCP. Flycatcher habitat at Roosevelt Lake 
varies depending on how and when the lake recedes as a result of water 
in-flow and subsequent storage capacity and delivery needs. As the lake 
recedes, flat-gradient, fine moist soils are exposed which provide seed 
beds for riparian vegetation. The size of Roosevelt Lake, and therefore 
the amount and location of flycatcher habitat, can vary greatly due to 
dam operations, floods, and drought. However, even in the expected 
high-water years, we determined that some flycatcher habitat would 
persist at Roosevelt Lake providing a net benefit to the bird. Species 
covered in this HCP were the southwestern willow flycatcher, bald eagle 
(Haliaeetus leucocephalus), and yellow-billed cuckoo (Coccyzus 
americanus).
    The HCP covers Roosevelt Dam operations for 50 years and involves 
the conservation of a minimum of 607 ha (1,500 ac) of flycatcher 
habitat off-site, outside of the Roosevelt Management Unit, on the San 
Pedro, Verde, and/or Gila rivers, and possibly other streams in AZ, and 
implementation of conservation measures to protect up to an additional 
304 ha (750 ac) of flycatcher habitat. Measures in the HCP to protect 
habitat at Roosevelt Lake include having the Forest Service hire a 
Forest Service employee (USFS) to patrol and improve protection of 
flycatcher habitat in the Roosevelt lakebed from adverse activities 
such as fire ignition from human neglect, improper vehicle use, etc., 
and to develop habitat at the Rock House Farm Site.
    The conclusion provided in our biological opinion, required in 
order to issue the HCP permit, was based upon the persistence of 
varying degrees of occupied southwestern willow flycatcher habitat 
that, at a minimum, could possibly reach the numerical (50 territories) 
and distribution goals (within Roosevelt Management Unit) established 
in the Recovery Plan, under full operation of Roosevelt Dam with an 
HCP. The permittee (ERO 2002) estimated that an average of 121 to 162 
ha (300 to 400 ac) of suitable habitat (thus about 60 to 81 ha/150 to 
200 ac of occupied habitat) would be present during the life of the 
permit, which could support 45 to 90 territories. Even in a worse case 
flood event, 15 to 30 territories are expected to persist. Under more 
favorable habitat conditions, the area between the existing pool and 
the high water mark has supported the largest local population of 
flycatchers throughout the subspecies range (approximately 150 pairs). 
The basis for the full-time USFS employee is to minimize the effects of 
on-the-ground actions (trespass livestock, recreation, fire, habitat 
clearing, development, roads, fencing, boating, gravel collection, off-
highway vehicles, etc.), not at the discretion or under the control of 
SRP. While it is not possible to fully protect these areas with an on-
the-ground officer, the HCP provides an additional level of protection 
that would not otherwise be available to the habitat absent the HCP.
    Currently, a collection of properties have been acquired as 
required by the HCP along the lower San Pedro and Gila River (Middle 
Gila/San Pedro Management Unit), and a single property along the Verde 
River (Verde Management Unit). Some of these properties were identified 
as essential habitat in the critical habitat proposal, but were 
proposed for exclusion under section 4(b)(2). In their comments on the 
proposed rule, SRP specifically requested that the mitigation 
properties identified in the proposal and others they acquired since 
publication of the proposal, that were part of the proposal, be 
included in the critical habitat designation. Therefore, due to the 
discretion of the Secretary under section 4(b)(2) of the Act, and based 
upon the comments received from SRP, the mitigation properties acquired 
by SRP are included in the final designation as critical habitat.
(1) Benefits of Inclusion
    We believe that there is minimal benefit from designating critical 
habitat for the southwestern willow flycatcher within the conservation 
space of Roosevelt Lake, because, as described below, the location is 
occupied by many southwestern willow flycatchers and therefore, its 
habitat is already under evaluation under section 7 of the Act, and 
operations of Roosevelt Dam (resulting in the periodic rise and fall of 
water across the land at the edges of the lake) is integral to the 
long-term persistence of flycatcher habitat at Roosevelt Lake. 
Therefore, while flycatcher habitat will vary in quality and quantity 
over time due to the different lake levels within the

[[Page 60937]]

conservation space of Roosevelt Lake, it will persist.
    With respect to operations of Roosevelt Dam, we determined in our 
jeopardy analysis for our intra-Service section 7 consultation for 
issuance of the Roosevelt HCP permit that dam operations would not 
result in jeopardy to the southwestern willow flycatcher. As stated in 
our proposal, one of the primary conservation values of proposed 
critical habitat is to sustain existing populations. The threshold for 
reaching destruction or adverse modification at Roosevelt Lake would 
likely require a reduction in the capability of the habitat to sustain 
existing populations. It is likely that actions that would reduce the 
capability of the habitat to sustain a population would also jeopardize 
the continued existence of the species. Because of the importance of 
the conservation space at Roosevelt Lake plays for water storage, there 
is no reasonable reason to believe that there would be any development 
or change that would result in this piece of land being unavailable for 
riparian vegetation. This is because the dam operates in a way that 
continues moves water out of the reservoir to downstream lakes and 
canals. Thus, dam operators are continuously in the process of creating 
conservation space at Roosevelt Lake, and therefore, places for 
riparian vegetation (i.e., flycatcher habitat) to grow. Constant lake 
levels, which are not the desired condition at Roosevelt Lake, will not 
result in the creation of the hundreds of acres of flycatcher habitat 
that occurred between 1995 and 2004. On the contrary, dynamic lake 
levels (like Roosevelt Dam is operated), similar to river systems, are 
important for the creation and maintenance of abundant southwestern 
willow flycatcher habitat at this location.
    The threshold for reaching destruction or adverse modification of 
critical habitat at Roosevelt Lake would likely require a reduction in 
the capability of the habitat to sustain existing populations. It is 
likely that actions that would reduce the capability of the habitat to 
sustain a population would also jeopardize the continued existence of 
the species. We concluded in our intra-Service opinion for issuance of 
Roosevelt Dam HCP permit, that dam operations would sustain populations 
over time (and similar to all flycatcher locations are subject to 
disturbances such as flooding and drought and an increase and decrease 
in populations), and therefore, would not jeopardize the flycatcher. 
Therefore, the outcome of consultation under section 7 of the Act on 
Roosevelt Lake Dam operations with critical habitat designated would 
not likely be materially different compared to the listing of the 
species alone. Similarly, we concluded in our 4(b)(8) determination in 
the proposed and final rules that dam operations, like those of 
Roosevelt Lake, would not result in adverse modification of critical 
habitat, because normal operations resulted in conditions that allows 
flycatcher habitat to persist over time.
    However, dam operations are not the only possible impact to 
flycatcher habitat at Roosevelt Lake, once water recedes and uncovers 
the ground where flycatcher habitat can grow; the Forest Service is the 
land manager. Livestock grazing and recreation, two activities that 
occur in and around Roosevelt Lake, have the ability to adversely 
affect critical habitat. These activities have previously occurred in 
the dry conservation space of the lake. But since the mid-1990s, the 
Tonto National Forest has prevented grazing from the lake bottom and 
fenced habitat to limit the effects of recreation and adjacent trespass 
cattle. Through the Roosevelt HCP, a Forest Protection Officer has been 
hired in order to help monitor and regulate unauthorized activities 
that could affect flycatcher habitat. Therefore, there is existing 
management by the Forest Service and additional protections through the 
HCP to protect the development, growth, and maintenance of flycatcher 
habitat from unauthorized activities.
    The draft environmental assessment found that minor changes in 
livestock grazing or recreation through section 7 consultations, due to 
a critical habitat designation, may occur in the form of additional 
discretionary conservation recommendations to reduce impacts to the 
primary constituent elements. If Roosevelt Lake was designated as 
critical habitat, there may be some benefit through consultation under 
the adverse modification standard for actions under the discretion of 
the Forest Service. But, since the location is currently occupied by 
breeding flycatchers, dispersing young-of-the year flycatchers, 
migrating, foraging, and non-breeding flycatchers; habitat is already 
considered in consultations under section 7 of the Act and current 
management emphasizes habitat growth and persistence. For these reasons 
and because formal consultations will likely result in only 
discretionary conservation recommendations due to existing appropriate 
management, we believe there is an extremely low probability of 
mandatory elements (i.e., reasonable and prudent alternatives) arising 
from formal section 7 consultations that include consideration of 
designated critical habitat for the southwestern willow flycatcher at 
Roosevelt Lake.
    We believe that there would be little educational and informational 
benefit gained from including Roosevelt Lake within the designation, 
because this area was included in the proposed rule as essential 
habitat, is discussed in this final rule, and has been the focus of 
flycatcher research and water storage issues since the mid-1990s. 
Consequently, we believe that the informational benefits are already 
provided even though this area is not designated as critical habitat. 
Additionally, the importance of Roosevelt Lake for conservation of the 
flycatcher, its importance to the Roosevelt Management Unit, and to the 
population of flycatchers in the state of Arizona has already been 
realized by managing agencies, including the public, State and local 
governments, and Federal agencies.
(2) Benefits of Exclusion
    A benefit of excluding Roosevelt Lake from critical habitat 
includes some reduction in administrative costs associated with 
engaging in the critical habitat portion of section 7 consultations. 
Administrative costs include time spent in meetings, preparing letters 
and biological assessments, and in the case of formal consultations, 
the development of the critical habitat component of a biological 
opinion. However, because the flycatcher occupies the margins of 
Roosevelt Lake, consultations are expected to occur regardless of a 
critical habitat designation, and those costs to perform the additional 
analysis are not expected to be significant.
    The Roosevelt HCP and exclusion from critical habitat can also 
facilitate other cooperative conservation activities with other 
similarly situated dam operators or landowners. Continued cooperative 
relations with SRP and its stakeholders is expected to influence other 
future partners and lead to greater conservation than would be achieved 
through multiple site-by-site, project-by-project, section 7 
consultations. The benefits of excluding lands within the Roosevelt 
Lake HCP area from critical habitat designation include recognizing the 
value of conservation benefits associated with HCP actions; encouraging 
actions that benefit multiple species; encouraging local participation 
in development of new HCPs; and facilitating the cooperative activities 
provided by the Service to landowners, communities, and counties in 
return for their voluntary adoption of the HCP.

[[Page 60938]]

    The Roosevelt HCP has and will continue to help generate important 
status and trend information for flycatcher recovery. In addition to 
specific flycatcher conservation actions, the development and 
implementation of this HCP provides regular monitoring of flycatcher 
habitat, distribution, and abundance over the 50 year permit.
    Failure to exclude Roosevelt Lake could be a disincentive for other 
entities contemplating partnerships as it would be perceived as a way 
for the Service to impose additional regulatory burdens once 
conservation strategies have already been agreed to. Private entities 
are motivated to work with the Service collaboratively to develop 
voluntary HCPs because of the regulatory certainty provided by an 
incidental take permit under section 10(a)(1)(B) of the Act with the 
``No Surprises'' assurances. This collaboration often provides greater 
conservation benefits than could be achieved through strictly 
regulatory approaches, such as critical habitat designation. The 
conservation benefits resulting from this collaborative approach are 
built upon a foundation of mutual trust and understanding. It takes 
considerable time and effort to establish this foundation of mutual 
trust and understanding which is one reason it often takes several 
years to develop a successful HCP. Excluding this area from critical 
habitat would help promote and honor that trust by providing greater 
certainty for permittees that once appropriate conservation measures 
have been agreed to and consulted on for the southwestern willow 
flycatcher that additional consultation will not be necessary.
    HCP permittees and stakeholders have submitted comments and spoke 
during public hearings discussing that they view critical habitat 
designation at Roosevelt Lake as unwarranted and an unwelcome intrusion 
to the operation of Roosevelt Dam, and an erosion of the regulatory 
certainty that is provided by their incidental take permit and the ``No 
Surprises'' assurances. We received other public comments disapproving 
of our identification of the conservation space of Roosevelt Lake as 
essential habitat, believing designation of critical habitat at 
Roosevelt Lake would limit fishing, camping, water storage, etc. There 
is a concern by SRP and stakeholders that designation of critical 
habitat at Roosevelt Lake has the potential to threaten the storage and 
delivery of water to the greater Phoenix metropolitan area (as 
described in the Economic Analysis). Should this ever come to pass, the 
results could be significant, however we do not believe that scenario 
is reasonably foreseeable (see discussion above). Having applicant's 
understand the Service's commitment will encourage continued 
partnerships with these permittees that could result in additional 
conservation plans or additional lands enrolled in HCPs.
    A related benefit of excluding lands within this HCP is the 
continued ability by the Service to seek new partnerships. Permittees 
who trust and benefit from the HCP process discuss the benefits with 
others who may become future HCP participants, such as States, 
counties, local jurisdictions, conservation organizations, and private 
landowners. New HCPs would result in implementation of conservation 
actions that we would be unable to accomplish otherwise. By excluding 
areas covered by HCPs from critical habitat designation, we preserve 
these partnerships and promote more effective conservation actions in 
the future.
    Our collaborative relationships with the Roosevelt Lake HCP 
permittees clearly make a difference in our partnership with the 
numerous stakeholders involved and influence our ability to form 
partnerships with others. Concerns over perceived added regulation 
potentially imposed by critical habitat harms this collaborative 
relationship by leading to distrust. Our experience has demonstrated 
that successful completion of one HCP has resulted in the development 
of other conservation efforts and HCPs with other landowners.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, we find that the benefits of designating critical 
habitat for the southwestern willow flycatcher at Roosevelt Lake are 
relatively small in comparison to the benefits of exclusion. We find 
that including Roosevelt Lake would result in very minimal, if any 
additional benefits to the southwestern willow flycatcher, as explained 
above. In making this finding, we have weighed the benefits of 
including these lands as critical habitat with an operative HCP and 
management by the Forest Service, and without critical habitat. 
Excluding Roosevelt Lake would eliminate some additional administrative 
effort and cost during the consultation process pursuant to section 7 
of the Act. Excluding Roosevelt Lake would continue to help foster 
development of future HCPs and strengthen our relationship with 
Roosevelt HCP permittees and stakeholders. Roosevelt Dam operations 
will continue to foster the maintenance, development, and necessary 
recycling of habitat for the flycatcher in the long-term due to the 
dynamic nature of water storage and delivery. Forest Service management 
fosters the presence of flycatcher habitat, and there is virtually no 
risk of development within the conservation space of Roosevelt Lake. 
Excluding Roosevelt Lake eliminates regulatory uncertainty associated 
with the permittees HCP, and any possible risk to water storage and 
delivery to the greater Phoenix metropolitan area. We have concluded 
that the benefits of the Roosevelt Dam operations underneath the 
coverage of the Roosevelt HCP and Forest Service management outweigh 
those that would result from the designation. We have therefore 
excluded these lands from the final critical habitat designation 
pursuant to section 4(b)(2) of the Act.
    We also find that the exclusion of these lands will not lead to the 
extinction of the species, nor hinder its recovery because the 
operation of Roosevelt Dam, maintenance of the conservation space of 
the lake, and Forest Service management will ensure the long-term 
persistence and protection of flycatcher habitat at Roosevelt Lake. We 
determined in our intra-Service section 7 biological opinion for the 
issuance of the Roosevelt HCP permit that operations would not result 
in jeopardy. Our 4(b)(8) determination in this proposal indicated that 
we did not believe dam operations, like Roosevelt Dam, would result in 
adverse modification. We determined that while incidental take will 
occur, and habitat will fluctuate in its abundance and quality, 
reservoir operations resulting in a dynamic environment were necessary 
for the long-term persistence of habitat. It was estimated that an 
average of 121 to 162 ha (300 to 400 ac) of suitable habitat (thus 
about 60 to 81 ha/150 to 200 ac of occupied habitat) would be present 
during the life of the permit, which could support 45 to 90 
territories. Even in a worse case flood event, 15 to 30 territories are 
expected to persist. Under more favorable habitat conditions, the area 
between the existing pool and the high water mark has supported the 
largest local population of flycatchers throughout the subspecies range 
(approximately 150 pairs). The best case scenario and average estimated 
amount of available habitat can far surpasses the amount needed to 
support the 50 territory numerical goal recommended in the Recovery 
Plan (USFWS 2002).

[[Page 60939]]

Hoover to Parker, Parker to Southerly International Border, and Middle 
Colorado Management Units, CA/AZ/NV

Lower Colorado River Multi-Species Conservation Plan (LCR MSCP)
    The LCR MSCP was developed for areas along the lower Colorado River 
along the borders of AZ, CA, and NV from the conservation space of Lake 
Mead to Mexico, in the Counties of La Paz, Mohave, and Yuma in AZ; 
Imperial, Riverside, and San Bernardino Counties in CA, and Clark 
County in NV. The LCR MSCP primarily covers activities associated with 
water storage, delivery, diversion, and hydroelectric production. The 
Record of Decision was signed by the Secretary of Interior on April 2, 
2005. Discussions began on the development of this HCP in 1994, but an 
important catalyst was a 1997 jeopardy biological opinion for the 
southwestern willow flycatcher issued to the Bureau of Reclamation for 
lower Colorado River operations (USFWS 1997).
    The Federal agencies involved in the LCR MSCP include the Bureau of 
Reclamation, Bureau of Indian Affairs, National Park Service, Bureau of 
Land Management, Western Area Power Administration, and U.S. Fish and 
Wildlife Service. The permittees covered in AZ are: The Arizona 
Department of Water Resources; Arizona Electric Power Cooperative Inc.; 
Arizona Game and Fish Department; Arizona Power Authority; Central 
Arizona Water Conservation District; Cibola Valley Irrigation and 
Drainage District; City of Bullhead City; City of Lake Havasu City; 
City of Mesa; City of Somerton; City of Yuma; Electrical District No. 
3, Pinal County, Arizona; Golden Shores Water Conservation District; 
Mohave County Water Authority; Mohave Valley Irrigation and Drainage 
District; Mohave Water Conservation District, North Gila Valley 
Irrigation and Drainage District; Salt River Project Agricultural 
Improvement and Power District; Town of Fredonia; Town of Thatcher; 
Town of Wickenburg; Unit ``B'' Irrigation and Drainage District; 
Wellton-Mohawk Irrigation and Drainage District; Yuma County Water 
Users' Association; Yuma Irrigation District; and Yuma Mesa Irrigation 
and Drainage District. The permittees covered in CA are: The City of 
Needles, the Coachella Valley Water District, the Colorado River Board 
of California, the Imperial Irrigation District, the Los Angeles 
Department of Water and Power, the Palo Verde Irrigation District, the 
San Diego County Water Authority, the Southern California Edison 
Company, the Southern California Public Power Authority, Bard Water 
District, and The Metropolitan Water District of Southern California. 
The permittees covered in NV are: The Colorado River Commission of 
Nevada, the Nevada Department of Wildlife, Basic Water Company, and the 
Southern Nevada Water Authority.
    The Southwestern Willow Flycatcher Management Units primarily 
encompassed in the LCR MSCP are the Hoover to Parker and Parker to 
Southerly International Border Management units. Streams in the Middle 
Colorado (Colorado River/Lake Mead), Virgin (Virgin River), and 
Pahranagat (Muddy River) Management units in AZ, UT, and NV, are 
briefly represented where they surround Lake Mead (including the 
conservation space of Lake Mead which extends up the Colorado River to 
Separation Canyon). The southwestern willow flycatcher is a key species 
in the LCR MSCP where the permittees will create and maintain 1,639 ha 
(4,050 ac) of flycatcher habitat over the 50-year life of the permit 
(2005 to 2055). Additional research, management, monitoring, and 
protection of flycatchers and flycatcher habitat will occur from fire, 
nest predators, and brood parasites. The development of flycatcher 
habitat will occur specifically throughout the Hoover to Parker and 
Parker to Southerly International Border Management units, and is 
expected to meet conservation goals of the flycatcher identified in the 
Recovery Plan by increasing numbers of territories in appropriate 
Management Units. Management and tasks associated with the HCP will 
result in improving and maintaining essential migration stopover 
habitat, improving meta-population stability, and reducing the risk of 
catastrophic losses due to fire. In addition to creation and subsequent 
management of flycatcher habitats, provision is made in the LCR MSCP to 
provide funds to ensure the maintenance of existing flycatcher habitats 
within the Management Units. The LCR MSCP will also cover 26 species, 
including 5 more federally listed animals: Yuma clapper rail (Rallus 
longirostris yumanensis), Desert Tortoise (Gopherus agassizii), 
razorback sucker (Xyrauchen texanus), bonytail (Gila elegans), humpback 
chub (Gila cypha).
    As a result of the development of the LCR MSCP, and in conjunction 
with (see Relationship of Critical Habitat to National Wildlife Refuge 
Management Plans--Exclusions Under Section 4(b)(2) of the Act, and 
Relationship of Critical Habitat to Tribal Management Plans--Exclusions 
Under Section 4(b)(2) of the Act sections below) Southwestern Willow 
Flycatcher Tribal Management Plans and conservation of southwestern 
willow flycatcher habitat on National Wildlife Refuges (NWR) along the 
Lower Colorado River, there is significant conservation of existing 
flycatcher habitat and development of new flycatcher habitat throughout 
the length of the LCR MSCP planning area (Lake Mead to Mexico). The LCR 
MSCP and management of NWR and Tribal Lands will result in thousands of 
acres of restored, protected, and managed flycatcher habitat for 
nesting, migrating, foraging, territorial, non-breeding, and dispersing 
birds capable of reaching conservation goals established in the 
Recovery Plan. As a result of the assurances and protections provided 
the southwestern willow flycatcher and its habitat, we are excluding 
the length of the Lower Colorado River from the conservation space of 
Lake Mead (which extends up to Separation Canyon) downstream to the 
Southerly International Border from designation as flycatcher critical 
habitat.
(1) Benefits of Inclusion
    We believe that there is minimal benefit from designating critical 
habitat for the southwestern willow flycatcher along the length of the 
lower Colorado River from Lake Mead to Mexico, because as described 
above, the LCR MSCP commits to developing, managing, and protecting 
thousands of acres of flycatcher habitat. Additionally, over a thousand 
acres of riparian habitat that can be used by flycatchers will 
collectively be restored, managed, and maintained on NWRs (Havasu, 
Cibola, and Imperial) and Tribal Lands (Hualapai, Colorado River, 
Chemehuevi, Fort Mohave, and Quechan--Fort Yuma) along the lower 
Colorado River within the area covered by the LCR MSCP. The culmination 
of these efforts is anticipated to surpass recovery goals recommended 
in the Recovery Plan; maintain, develop and improve migration, 
dispersal, sheltering, and foraging habitat; develop metapopulation 
stability; and protect against catastrophic losses.
    Under section 7, critical habitat designation will provide little 
additional benefit to the southwestern willow flycatcher within the 
boundaries of the LCR MSCP. The catalyst for the LCR MSCP was largely a 
result of a jeopardy biological opinion (USFWS 1997) for the 
southwestern willow flycatcher to the Bureau of Reclamation for its 
lower Colorado River operations. As a result, the LCR MSCP and its 
Implementing Agreement are designed to ensure the conservation of the 
flycatcher within the plan area and

[[Page 60940]]

include management measures to protect, restore, enhance, manage, and 
monitor habitat to benefit the conservation of flycatcher. The adequacy 
of plan measures to protect the flycatcher and its habitat has 
undergone thorough evaluation in the section 7 consultations completed 
prior to approval of the plans, and therefore, the benefit of including 
these areas to require section 7 consultation for critical habitat is 
negated.
    This HCP involved public participation through public notices and 
comment periods associated with the NEPA process prior to being 
approved. Additionally, this HCP is one of the largest HCPs in the 
country, with an immense list of stakeholders and permittees from CA, 
AZ, and NV that took about a decade to complete. Therefore, managing 
agencies, States, counties, cities, and other stakeholders are aware of 
the importance of the lower Colorado River for the southwestern willow 
flycatcher. For these reasons, we believe that designation of critical 
habitat would provide little additional educational benefit the area 
covered by this approved HCP. Federal actions that may affect the 
flycatcher will still require consultation under section 7 of the Act.
    With respect to lower Colorado River operations covered under the 
LCR MSCP, we determined in our jeopardy analysis for our intra-Service 
section 7 consultation for issuance of the HCP permit that operations 
with the included protections, mitigation and management would not 
result in jeopardy to the southwestern willow flycatcher. As stated in 
our proposal, one of the primary conservation values of proposed 
critical habitat is to sustain existing populations. The threshold for 
reaching destruction or adverse modification along the Lower Colorado 
River would likely require a reduction in the capability of the habitat 
to sustain existing populations. It is likely that actions that would 
reduce the capability of the habitat to sustain a population would also 
jeopardize the continued existence of the species. Because of the 
development, restoration, and protection of riparian habitat attributed 
to the LCR MSCP, NWRs, and Tribes, flycatcher habitat will be more 
abundant, more widespread, and of higher quality than conditions today 
and the recent past.
    Covered activities under the LCR MSCP are not the only possible 
impacts to flycatcher habitat along the Lower Colorado River. There are 
continued projects developed, carried out, funded, and permitted by 
Federal agencies such as Bureau of Reclamation and Bureau of Land 
Management that are not covered by the LCR MSCP. Fire management, 
restoration, recreation, and other activities have the ability to 
adversely affect the flycatcher and critical habitat. The draft 
environmental assessment for this proposed rule found that minor 
changes in restoration, fire management, and recreation could occur as 
result of a critical habitat designation in the form of additional 
discretionary conservation recommendations to reduce impacts to the 
primary constituent elements. Therefore, if the lower Colorado River 
was designated as critical habitat, there may be some benefit through 
consultation under the adverse modification standard for actions not 
covered by the LCR MSCP. But, since the proposed river segments are 
occupied by breeding flycatchers, dispersing young-of-the year 
flycatchers, migrating, foraging, and non-breeding flycatchers; habitat 
is already considered in consultations under section 7 of the Act. For 
these reasons and because formal consultations will likely result in 
only discretionary conservation recommendations due to existing 
restoration and management efforts along the length of the Lower 
Colorado River due to the LCR MSCP and restoration and management 
occurring on NWRs and Tribal Lands, we believe there is a low 
probability of mandatory elements (i.e., reasonable and prudent 
alternatives) arising from formal section 7 consultations that include 
consideration of designated critical habitat for the southwestern 
willow flycatcher along the Lower Colorado River from Lake Mead to 
Mexico.
(2) Benefits of Exclusion
    A benefit of excluding the lower Colorado River from critical 
habitat includes some reduction in administrative costs associated with 
engaging in the critical habitat portion of section 7 consultations. 
Administrative costs include time spent in meetings, preparing letters 
and biological assessments, and in the case of formal consultations, 
the development of the critical habitat component of a biological 
opinion. However, because the flycatcher occupies the lower Colorado 
River for a variety of life history needs, consultations are expected 
to occur regardless of a critical habitat designation, and those costs 
to perform the additional analysis are not expected to be significant.
    The exclusion of the lower Colorado River from critical habitat as 
a result of the LCR MSCP can help facilitate other cooperative 
conservation activities with other similarly situated dam operators or 
landowners. Continued cooperative relations with the three states and 
myriad of stakeholders is expected to influence other future partners 
and lead to greater conservation than would be achieved through 
multiple site-by-site, project-by-project efforts, and associated 
section 7 consultations. The benefits of excluding lands within the LCR 
MSCP plan area from critical habitat designation include recognizing 
the value of conservation benefits associated with HCP actions; 
encouraging actions that benefit multiple species; encouraging local 
participation in development of new HCPs; and facilitating the 
cooperative activities provided by the Service to landowners, 
communities, and counties in return for their voluntary adoption of the 
HCP.
    The LCR MSCP will also help generate important status and trend 
information for flycatcher recovery. In addition to specific flycatcher 
conservation actions, the development and implementation of this HCP 
provides regular monitoring of flycatcher habitat, distribution, and 
abundance over the 50-year permit.
    Failure to exclude the lower Colorado River covered under the LCR 
MSCP could be a disincentive for other entities contemplating 
partnerships as it would be perceived as a way for the Service to 
impose additional regulatory burdens once conservation strategies have 
already been agreed to. Private entities are motivated to work with the 
Service collaboratively to develop voluntary HCPs because of the 
regulatory certainty provided by an incidental take permit under 
section 10(a)(1)(B) of the Act with the No Surprises Assurances. This 
collaboration often provides greater conservation benefits than could 
be achieved through strictly regulatory approaches, such as critical 
habitat designation. The conservation benefits resulting from this 
collaborative approach are built upon a foundation of mutual trust and 
understanding. It has taken considerable time and effort to establish 
this foundation of mutual trust and understanding which is one reason 
it often takes several years to develop a successful HCP. Excluding 
this area from critical habitat would help promote and honor that trust 
by providing greater certainty for permittees that once appropriate 
conservation measures have been agreed to and consulted on for listed 
and sensitive species additional consultation will not be necessary.
    HCP permittees and stakeholders submitted comments and spoke during 
public hearings discussing that they

[[Page 60941]]

view critical habitat designation along the lower Colorado River as 
unwarranted and an unwelcome intrusion to river operations, and an 
erosion of the regulatory certainty that is provided by their 
incidental take permit and the No Surprises assurances. There is a 
concern by agencies and stakeholders that designation of critical 
habitat along the lower Colorado River has the potential to threaten 
the storage, delivery, and diversion of water and hydroelectric 
production for AZ, CA, and NV. Should this ever come to pass, the 
economic results would be the most significant throughout the bird's 
range (see Economic Analysis), however we do not believe this scenario 
is reasonably foreseeable (see discussion above). Having applicants 
understand the Service's commitment will encourage continued 
partnerships with these permittees that could result in additional 
conservation plans or additional lands enrolled in HCPs.
    Our collaborative relationships with the LCR MSCP permittees 
clearly make a difference in our partnership with the numerous 
stakeholders involved and influence our ability to form partnerships 
with others. Concerns over perceived added regulation potentially 
imposed by critical habitat harms this collaborative relationship by 
leading to distrust. Our experience has demonstrated that successful 
completion of one HCP has resulted in the development of other 
conservation efforts and HCPs with other landowners.
    The benefits of excluding this HCP from critical habitat 
designation include relieving Federal agencies, State agencies, 
landowners, communities, and counties of any additional regulatory 
burden that might be imposed by critical habitat. This HCP took many 
years to develop and, upon completion, became a river long conservation 
plan that is consistent with the recovery objectives for the flycatcher 
within the plan area. Additionally, this HCP provides conservation 
benefits to 20 unlisted sensitive species. Imposing an additional 
regulatory review after the HCP is completed solely as a result of the 
designation of critical habitat may undermine conservation efforts and 
partnerships in many areas. In fact, it could result in the loss of 
species' benefits if future participants abandon the voluntary HCP 
process. Designation of critical habitat along the lower Colorado River 
could be viewed as a disincentive to those entities currently 
developing HCPs or contemplating them in the future. The benefit of 
excluding the lower Colorado River within the approved LCR MSCP from 
critical habitat outweighs the benefits of its inclusion.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, we find that the benefits of designating critical 
habitat for the southwestern willow flycatcher along the Lower Colorado 
River (Lake Mead to Mexico) are relatively small in comparison to the 
benefits of exclusion. We find that including the Lower Colorado River 
would result in very minimal, if any additional benefits to the 
southwestern willow flycatcher, as explained above. In making this 
finding, we have weighed the benefits of including these lands as 
critical habitat with an operative HCP and management by NWRs and 
Tribal Lands, and without critical habitat. Excluding the Lower 
Colorado River would eliminate some additional administrative effort 
and cost during the consultation process pursuant to section 7 of the 
Act. Excluding the Lower Colorado River would continue to help foster 
development of future HCPs and strengthen our relationship with AZ, CA, 
and NV permittees and stakeholders. Excluding the Lower Colorado River 
eliminates regulatory uncertainty associated with permittees and 
stakeholders. Excluding the lower Colorado River eliminates any 
possible risk to water storage, delivery, diversion and hydroelectric 
production to AZ, NV, and CA, and therefore significant potential 
economic costs due to a critical habitat designation. We have therefore 
concluded that the benefits to the flycatcher and its habitat as a 
result of the restoration, maintenance, and management activities 
attributed to the LCR MSCP, NWR and Tribes outweigh those that would 
result from the addition of a critical habitat designation. We have 
therefore excluded these lands from the final critical habitat 
designation pursuant to section 4(b)(2) of the Act.
    We also find that the exclusion of the lower Colorado River from 
Lake Mead to Mexico (Southerly International Border) will not lead to 
the extinction of the subspecies, nor hinder its recovery, because 
restoration, maintenance, and management of southwestern willow 
flycatcher habitat due to the LCR MSCP, and by NWRs and Tribes will 
ensure the long-term persistence and protection of flycatcher habitat 
along the lower Colorado River. The LCR MSCP provides for a greater 
conservation benefit to the flycatcher than consultations pursuant to 
section 7 of the Act because this HCP assures the long-term protection 
and management of a flycatcher habitat, and funding for this 
management. Such assurances are typically not provided by consultations 
under section 7 of the Act that, in contrast to HCPs, often do not 
commit the project proponent to long-term special management or 
protections. Thus, a consultation typically does not accord the lands 
it covers the extensive benefits an HCP provides. We determined in our 
intra-Service section 7 biological opinion for the issuance of the LCR 
MSCP permit that the lower Colorado River operations would not result 
in jeopardy. The southwestern willow flycatcher is a key species in the 
LCR MSCP where the permittees will create and maintain 1,639 ha (4,050 
ac) of flycatcher habitat over the 50-year life of the permit (2005 to 
2055). As a result of appropriate placement of flycatcher habitat 
developed through the LCR MSCP along with the restoration, management 
and maintenance of flycatcher habitat on NWRs and Tribes, we expect to 
meet and possibly surpass the 50 territory goal for the Hoover to 
Parker Management Unit, and 150 territory goal for the Parker to 
Southerly International Boundary Management Unit. We are therefore 
excluding the area covered under the LCR MSCP (Lake Mead to Southerly 
International Border) from critical habitat designation, because under 
section 4(b)(2) of the Act, we find that the benefits of exclusion 
exceed the benefits of inclusion, and exclusion would not result in 
extinction of the subspecies.

Relationship of Critical Habitat to State and Federal Wildlife 
Conservation Areas--Exclusions Under Section 4(b)(2) of the Act)

State Wildlife Areas (SWA)

Pahranagat Management Unit, NV

Key Pittman State Wildlife Area
    The Key Pittman Wildlife Area is located in Lincoln County, NV, and 
contains a wide diversity of habitats within its 539 ha (1,332 ac). The 
Pahranagat River travels through portion of the Key Pittman Wildlife 
Area, including Nesbitt Lake, an impounded area along the river. The 
State of Nevada's Department of Wildlife owns and manages this 
property. The Nevada Fish and Game Commission purchased portions of the 
area in 1962 and 1966, primarily for waterfowl hunting, and as a 
secondary goal, habitat for other wetland species. A draft management 
plan was completed in November 2003 and provides the framework for the 
next 10 years. The plan went through stakeholder meetings and public 
review.
    We determined that the entire stretch of the Pahranagat River, 
through this

[[Page 60942]]

Wildlife Area, is essential to the conservation of the southwestern 
willow flycatcher. A total of 4 to 10 southwestern willow flycatcher 
territories have been detected from 1999 to 2002, 9 were detected in 
2002. The State of Nevada fences the known flycatcher habitat in order 
to protect it from livestock grazing, manages water to maintain 
habitat, monitors the status of flycatchers, and is actively planting 
riparian plants to improve the distribution of riparian habitat. While 
the plan has not been finalized it is being implemented. In addition, 
the area has been under management for wildlife since the 1960s with 
conservation efforts targeted towards waterfowl, wetland species, and 
specifically the southwestern willow flycatcher. As a result of the 
assurances and protections provided the southwestern willow flycatcher 
and its habitat on the Key Pittman State Wildlife Area, we are 
excluding this area from critical habitat. Our 4(b)(2) analysis is 
provided below.

Pahranagat and Virgin Management Units, NV

Overton State Wildlife Area
    The Overton Wildlife Area is located in Clark County, NV, and 
contains a wide diversity of habitats within its 7,146 ha (17,657 ac). 
The Muddy River and Virgin River travel through a small portion of the 
State Wildlife Management Area near Lake Mead. The State of Nevada's 
Department of Wildlife owns and manages this property. A management 
plan was completed in December 2000 and provides the framework for the 
next 10 years. The plan went through stakeholder meetings and public 
review.
    We determined that the stretches of the Muddy and Virgin rivers 
through the boundaries of the Overton Wildlife Area are essential to 
the conservation of the southwestern willow flycatcher. A total of one 
to two southwestern willow flycatcher territories have been detected 
within the Overton Wildlife Area from 1997 to 2002. Riparian habitat is 
being enhanced and protected for neotropical migratory birds including 
southwestern willow flycatchers. A minimum of a quarter-acre willow 
patch and varying amount of cottonwood, mesquite, and hackberry will be 
planted annually in locations able to support native riparian trees, 
and water is being managed to improve and maintain riparian habitat. 
Riparian habitat is protected from livestock grazing, because no 
grazing occurs in the Wildlife Area. This Wildlife Area was developed 
for wetland habitat and waterfowl activities (including hunting). As a 
result, flycatcher-related riparian habitat maintenance activities 
described in the management plan are consistent with the management 
goals of the Wildlife Area. As a result of the assurances and 
protections provided the southwestern willow flycatcher and its habitat 
on the Overton Wildlife Area, we are excluding this area from critical 
habitat. Our 4(b)(2) analysis is provided below.

Bill Williams Management Unit, AZ

Alamo Lake State Wildlife Area
    The Alamo State Wildlife Area (AWA) in La Paz and Mohave counties 
was created under provisions of the Fish and Wildlife Coordination Act 
(16 U.S.C. 661-66c), Public Land Order 492 (PLO 492), and the General 
Plan agreement between the Secretary of the Army, Secretary of the 
Interior, and Director of AZ Game and Fish, signed January 19, 1968 
(Arizona Game and Fish Department-Arizona State Parks 1997). A lease 
agreement between the Arizona Game and Fish Department Commission and 
the U.S. Army Corps of Engineers was signed in 1970 establishing the 
AWA for fish and wildlife conservation and management purposes (Arizona 
Game and Fish Department--Arizona State Parks 1997). The present lease 
area encompasses approximately 9,140 ha (22,586 ac). Public input was 
solicited and addressed in development of the AWA Management Plan 
through scoping and the NEPA (Arizona Game and Fish Department--Arizona 
State Parks 1997).
    The AWA Management Plan describes the unique riparian, wetland, and 
aquatic aspects of the area for a variety of species, specifically 
identifying the southwestern willow flycatcher. As a result, two of the 
specific resources that management emphasizes are directed toward the 
habitat needs of the flycatcher: (1) Maintain and enhance aquatic and 
riparian habitats to benefit wildlife; and (2) restore, manage, and 
enhance habitats for wildlife of special concern. In order to 
accomplish this goal, no cattle grazing is allowed in the riparian 
areas on the upper end of Alamo Lake and the lower portions of the 
Santa Maria and Big Sandy Rivers. Also, recreation (i.e. off-road 
vehicles) is identified as important management objective. The number 
of territories at Alamo Lake within the AWA has varied annually between 
4 and 32 territories from 1994 to 2003 (USGS 2004).
    We determined that the segments of the Big Sandy, Santa Maria, and 
Bill Williams Rivers at the upper end of Alamo Lake within the AWA are 
essential to the conservation of the southwestern willow flycatcher. 
The AWA has been in existence for over 30 years under the management of 
Arizona Game and Fish Department. The AWA was developed for wildlife 
conservation. The current AWA Management Plan specifically emphasizes 
the importance of riparian habitat management for southwestern willow 
flycatchers. Management has fostered an increasing population, with the 
number of territories exceeding 20 in all but one season since 1999. 
The AWAs goals are consistent with the habitat needs of the flycatcher. 
As a result of the assurances and protections provided the southwestern 
willow flycatcher and its habitat on the Alamo Wildlife Area, we are 
excluding this area from critical habitat.
(1) Benefits of Inclusion
    We believe that there is minimal benefit from designating critical 
habitat for the southwestern willow flycatcher on these State Wildlife 
Areas because, as explained in detail above, these lands are already 
managed for the conservation of wildlife, including the southwestern 
willow flycatcher.
    Inclusion of lands as critical habitat can provide a benefit due to 
the improved educational aspect it provides land managers/owners. 
However, in this case, due to the conservation aspect of these lands 
specifically for wildlife and management there is an educational focus 
already being provided for southwestern willow flycatchers. In 
addition, these areas were identified as essential habitat for the 
southwestern willow flycatcher in our proposed rule. A critical habitat 
designation would not likely result in improved educational benefits 
beyond what is being provided.
    As stated in the draft environmental assessment, the primary 
conservation value of the proposed critical habitat segments is to 
sustain existing populations. The threshold for reaching destruction or 
adverse modification on SWAs would likely require a reduction in the 
capability of the habitat to sustain existing populations. It is likely 
that actions that would reduce the capability of the habitat to sustain 
a population would also jeopardize the continued existence of the 
species. Consequently, the outcome of the section 7 consultations on 
SWAs may not be materially different with designation of critical 
habitat compared to the listing of the species alone. In addition, 
given that these lands are managed for the conservation of wildlife, 
and specifically have established measures for southwestern willow 
flycatchers, it is highly unlikely that the SWAs would consider 
undertaking any projects that

[[Page 60943]]

would result in a long-term reduction of the capability of the habitat 
to sustain existing populations. To the contrary, activities occurring 
within SWAs are specifically for the benefit of wildlife, with 
management being conducted for the restoration, improvement, and 
protection of flycatcher habitat.
    As described above, all of SWA lands proposed for critical habitat 
may have additional conservation value above sustaining existing 
populations, because they are managing these lands to improve, protect, 
and expand upon the amount of nesting habitat that would provide for 
growth of existing populations. Expansion of existing populations in 
these areas would be an element of recovering the southwestern willow 
flycatcher. Accordingly, through section 7 consultations that may 
occur, some benefit may incur through the adverse modification standard 
and whether or not the activity results in a reduction in the 
suitability of the habitat to support expansion of existing 
populations. Therefore, because formal consultations will likely result 
in only discretionary conservation recommendations on these SWA lands, 
we believe there is an extremely low probability of mandatory elements 
(i.e., reasonable and prudent alternatives) arising from formal section 
7 consultations that include consideration of designated southwestern 
willow flycatcher critical habitat.
    The environmental assessment found that minor changes through 
section 7 consultation may occur in the form of additional 
discretionary conservation recommendations to reduce impacts to the 
primary constituent elements. For activities that SWAs are anticipated 
to engage in, those are expected to primarily be projects focused on 
habitat restoration, protection, and fire management. No formal 
consultation for habitat restoration has occurred on SWAs. Both 
restoration and fire management activities were anticipated in the 
environmental assessment to possibly have short-term adverse impacts to 
PCEs, but long-term beneficial effects from protections and improvement 
of habitat quality, quantity, and persistence. However, as discussed 
above, consultations on these activities would be similar to existing 
conditions, where consultations already address potential affects to 
the southwestern willow flycatcher because these river segments are 
occupied by nesting and migrating southwestern willow flycatchers. The 
outcome of the section 7 consultations on these SWAs may not be 
materially different with designation of critical habitat compared to 
the listing of the species alone due to the threshold for reaching 
destruction or adverse modification on proposed critical habitat. 
Moreover, we note that while additional conservation recommendations 
may result for projects of this nature, they would be discretionary on 
the part of the Federal agency.
(2) Benefits of Exclusion
    The benefits of excluding SWAs include a reduction in 
administrative costs associated with engaging in section 7 
consultations for critical habitat. Administrative costs include 
additional time spent in meetings and preparing letters, and in the 
case of biological assessments and informal and formal consultations, 
the development of those portions of these documents that specifically 
address the critical habitat designation. SWA and FWS staff can, more 
appropriately, use these limited funds toward continuing to manage and 
improve SWA lands for their stated purpose, wildlife conservation (and 
southwestern willow flycatcher conservation). In the future, SWAs will 
likely engage in low effort informal section 7 consultations 
periodically, and less frequently formal consultations, to address 
impacts of activities on the southwestern willow flycatcher (primarily 
those associated with habitat restoration, protection, and fire 
management). Potential project modifications are likely to be minimal, 
given the beneficial nature of the SWA activities and projects.
(3) Benefits of Exclusion Outweigh Benefits of Inclusion
    In summary, we believe that the benefits of excluding these SWAs 
from the designation of critical habitat for the southwestern willow 
flycatcher outweigh the benefits of including them in critical habitat. 
We find that including these SWAs would result in very minimal, if any 
additional benefits to the southwestern willow flycatcher, as explained 
above. Because these areas are being managed by SWA staff familiar with 
wildlife-related issues, there is no reason to believe that the 
designation would result in an increased education benefit to land 
managers. Including SWAs in the designation could require some 
additional administrative effort and cost during the section 7 
consultation process. Although the additional effort to consider and 
analyze the affects of various projects on critical habitat may not be 
substantial, however, it would require the SWA to use limited 
additional resources that may otherwise be used towards beneficial 
projects for wildlife (and the southwestern willow flycatcher).
    We also find that the exclusion of these SWAs will not lead to the 
extinction of the southwestern willow flycatcher, nor hinder its 
recovery because these lands are specifically managed for the 
protection of wildlife and there is an emphasis at each SWA to protect 
and enhance habitat specifically for the southwestern willow 
flycatcher.

Federal Wildlife Conservation Areas

Kern Management Unit, CA

Sprague Ranch
    Section 4(b)(2) of the Act requires us to consider other relevant 
impacts, in addition to economic impacts, of designating critical 
habitat. The Sprague Ranch included in the Kern Management Unit 
warrants exclusion from the final designation of critical habitat under 
section 4(b)(2) of the Act because we have determined that the benefits 
of excluding Sprague Ranch from southwestern willow flycatcher critical 
habitat designation will outweigh the benefits of including it in the 
final designation based on the long-term protections afforded for 
southwestern willow flycatcher habitat. The following represents our 
rationale for excluding the Sprague Ranch from the final designated 
critical habitat for the southwestern willow flycatcher in the Kern 
Management Unit.
    The Sprague Ranch is an approximately 1,003 ha (2,479 ac) parcel 
which includes approximately 395 ha (975 ac) of floodplain located 
along the south fork of the Kern River. The Sprague Ranch was purchased 
by the U.S. Army Corps of Engineers (Corps) as a result of biological 
opinions for the long-term operation of Lake Isabella Dam and Reservoir 
(Service File Nos. 1-1-96-F-27; 1-1-99-F-216; and 1-1-05-F-0067) 
specifically to provide habitat and conservation for the southwestern 
willow flycatcher. During the periods of time flycatcher habitat is not 
available as a result of short-term inundation from Isabella Dam 
operations, habitat at the Sprague Ranch is expected to provide habitat 
for the flycatcher. The dominant vegetation in the Kern Management Unit 
is mature willows (Salix sp.) and Fremont cottonwood. Other plant 
communities of the Kern Management Unit include open water, wet meadow, 
and riparian uplands.
    As a result of the expertise of the National Audubon Society 
(Audubon) and the California Department of Fish and Game (CDFG) in 
management of flycatcher habitat on adjacent and

[[Page 60944]]

nearby properties along the Kern River, management of the Sprague Ranch 
is a joint venture between these two parties and the Corps. The Sprague 
Ranch is located immediately north and adjacent to the Kern River 
Preserve (KRP), which is owned and operated by Audubon, and shares a 
common border with the KRP of over 4.8 km (3 mi). The CDFG manages the 
Canebrake Preserve located upstream of the critical habitat 
designation.
    The southwestern willow flycatcher occurs throughout the Kern 
Management Unit, which includes portions of the Sprague Ranch. The 
Sprague Ranch contains existing riparian forest that can support and 
maintain nesting territories and migrating and dispersing southwestern 
willow flycatcher. But other portions of the Ranch are believed to 
require restoration and management in order become nesting flycatcher 
habitat. Activities such as cowbird trapping, exotic vegetation 
control, and native tree plantings are other management activities 
expected to occur. The Ranch is currently being managed in accordance 
with the terms and conditions of the biological opinions (cited above) 
specifically for the benefit of the southwestern willow flycatcher.
(1) Benefits of Inclusion
    We believe that there is minimal benefit from designating critical 
habitat for the southwestern willow flycatcher within the Sprague Ranch 
because, as explained above, these lands are already managed for the 
conservation of flycatcher.
    As stated in the environmental assessment, the primary conservation 
value of the proposed critical habitat segments is to sustain existing 
populations. The threshold for reaching destruction or adverse 
modification on the Sprague Ranch property would likely require a 
reduction in the capability of the habitat to sustain existing 
populations. Given that these lands are managed specifically for the 
benefit of the flycatcher, it is highly unlikely that projects would be 
considered that would result in a depreciable diminishment or long-term 
reduction of the capability of the habitat to sustain existing 
populations. To the contrary, activities occurring on these lands will 
provide benefits to the flycatcher by restoring, improving, and 
protecting its habitat.
    As described above, the Sprague Ranch may have additional 
conservation value above sustaining existing populations, because it is 
being managed to not only maintain existing habitat, but also to 
improve, protect, and possibly expand upon the amount of nesting 
habitat that would provide for growth of existing populations. 
Expansion of existing populations in these areas would be an element of 
recovering the southwestern willow flycatcher. Accordingly, and as 
further discussed above in the ``General Principles of Section 7 
Consultations Used in the 4(b)(2) Balancing Process'' section, through 
section 7 consultations that may occur, some benefit may incur through 
the adverse modification standard and whether or not a proposed 
activity results in a reduction in the suitability of the habitat to 
support expansion of existing populations. However, because formal 
consultations will likely result in only discretionary conservation 
recommendations (i.e., adverse modification threshold is not likely to 
be reached), we believe there is an extremely low probability of 
mandatory elements (i.e., reasonable and prudent alternatives) arising 
from formal section 7 consultations that include consideration of 
designated southwestern willow flycatcher critical habitat. As 
mentioned above, this property was purchased specifically for the 
southwestern willow flycatcher, therefore, we do not believe it is 
likely that actions will be proposed that would be counter to the 
purpose of this habitat and result in adverse modification, using a 
conservation standard based on the Ninth Circuit Court's decision in 
Gifford Pinchot.
    We believe the conservation measures for the flycatcher that are 
occurring or will be used in the future on the Sprague Ranch (i.e., 
demographic surveys, cowbird trapping, non-native vegetation removal, 
livestock exclusion, hydrologic restoration, planting of native 
vegetation, monitoring, and reporting) provide as much, and possibly 
more benefit than would be achieved through section 7 consultations 
involving consideration of critical habitat. This is because management 
that is occurring or that is planning to occur will be the same 
activities which would be implemented in order to maintain or restore 
flycatcher habitat.
    As discussed in the ``Educational Benefits of Critical Habitat'' 
section above, we believe that there would be little additional 
informational benefit gained from including these portions of the 
Sprague Ranch within the designation because this area was included in 
the proposed rule as having essential flycatcher habitat. Further, the 
Kern River in this area was previously designated as critical habitat, 
numerous public meetings and hearings have occurred in Lake Isabella 
concerning the flycatcher and the designation of its critical habitat, 
and the population of flycatchers along the Kern River is one of the 
most studied throughout the subspecies range due to its proximity to 
the Kern River Reserve and an on-going research and monitoring project 
for the flycatcher. Consequently, we believe that the informational 
benefits that could be provided through a designation of critical 
habitat in this area are already provided because of the rationale 
mentioned above and the fact that this property was purchased 
specifically for the conservation of the southwestern willow 
flycatcher. Additionally, since this area is already being jointly 
managed by Federal, State, and private entities for the benefit of the 
flycatcher, its importance to flycatcher conservation is already well 
established.
(2) Benefits of Exclusion
    The southwestern willow flycatcher occurs on public and private 
lands throughout the Kern Management Unit. Proactive voluntary 
conservation efforts by private or non-Federal entities are necessary 
to prevent the extinction and promote the recovery of the southwestern 
willow flycatcher in the Kern Management Unit.
    We have determined that the southwestern willow flycatcher using 
habitat located within properties covered by management plans or 
conservation strategies that protect or enhance the conservation of the 
subspecies will benefit substantially from voluntary landowner 
management actions due to an enhancement and creation of riparian and 
wetland habitat and a reduction in risk of loss of riparian habitat. 
The conservation benefits of critical habitat are primarily regulatory 
or prohibitive in nature. Where consistent with the discretion provided 
by the Act, the Service believes it is necessary to implement policies 
that provide positive incentives to private landowners to voluntarily 
conserve natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1996). Thus, we believe it is essential 
for the recovery of the southwestern willow flycatcher to build on 
continued conservation activities such as these with proven partners, 
and to provide positive incentives for other private landowners who 
might be considering implementing voluntary conservation activities but 
have concerns about incurring incidental regulatory or economic 
impacts.
    The Sprague Ranch is jointly managed by the Corps, CDFG, and 
Audubon in accordance with the terms and conditions of the Biological 
Opinions

[[Page 60945]]

which require actions for the conservation of flycatchers, including: 
demographic surveys, cowbird trapping, non-native vegetation removal, 
livestock exclusion, hydrologic restoration, planting of native 
vegetation, noxious weed control activities, flood irrigating low lying 
areas, upgrading of fencing, upgrading irrigation systems, monitoring, 
and reporting. These measures will assist in restoration and 
conservation of southwestern willow flycatcher habitat. Two habitat 
assessments have been performed on the property which concluded that 
approximately 168 ha (414 ac) of land are currently available as 
potential breeding habitat through restoration and management, and 
another approximately 227 ha (561 ac) were identified as potentially 
restorable to support a mosaic of habitat that could be used by 
southwestern willow flycatchers during post-breeding dispersal and 
migration. By using the available water supply and distribution system, 
modifying or eliminating current grazing practices, removing invasive 
non-native plant species, and planting riparian vegetation, the Sprague 
Ranch has the potential for restoration of approximately 395 ha (975 
ac) into a mosaic of habitat similar to the KRP and the South Fork 
Wildlife Area (SFWA). In addition, the water supply and distribution 
system of the Sprague Ranch has a beneficial effect on the hydrology 
that supports the riparian habitats within the KRP and the SFWA.
    Therefore, while the Sprague Ranch possesses habitat for the 
flycatcher, future management of flycatcher habitat is needed in order 
to restore this property to its full potential for the bird. The 
implementation of these actions or others for the flycatcher may 
require further section 7 consultation between the Corps and the 
Service. As a result, there would be an additional use of time and 
money by the Corps and the Service, or possibly our non-Federal 
partners (Audubon and CDFG for the Corps) to develop sections of 
biological assessments and analyses in biological opinions specific to 
a critical habitat designation. These costs, added to already limited 
funds for the Corps for wildlife habitat restoration and maintenance, 
would be an additional time and cost burden above that which would be 
required for section 7 consultations without critical habitat. It could 
also cause delays to implementing beneficial actions for the 
flycatcher. If due to those limited budgets, the cost of developing 
these assessments are passed to our non-Federal partners, then this 
could be an even greater burden due to the more limited funding and 
personnel of Audubon and the State. The result could, in the most 
extreme cases, prevent or severely delay implementation of needed 
management actions. The use of time and effort on evaluation of 
projects on critical habitat could take away time, money, and effort by 
our non-Federal partners that could not only be used for implementing 
beneficial flycatcher management on the Sprague Ranch, but it could 
extend to other properties they own along the Kern River important to 
the flycatcher. Therefore, we believe there would be a benefit to 
exclusion of Sprague Ranch which could be of greater significance if 
passed on to our non-Federal partners if consultation was needed in 
order to implement beneficial projects for the flycatcher.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations we have determined that the 
benefits of excluding the Sprague Ranch from critical habitat in the 
Kern Management Unit outweigh the benefits of including it as critical 
habitat for the southwestern willow flycatcher.
    The Sprague Ranch was purchased specifically for the southwestern 
willow flycatcher and is jointly managed by the Corps, CDFG, and 
Audubon in accordance with the terms and conditions of the Biological 
Opinions. Therefore, the strategy of the managing partners is to 
implement conservation and management measures to achieve conservation 
goals for the southwestern willow flycatcher. There are little to no 
additional educational or regulatory benefits of including these lands 
as critical habitat. The Kern River is well known by the public and 
managing agencies for its value and importance to the southwestern 
willow flycatcher. Likewise, there will be little additional Federal 
regulatory benefit to the species because (a) there is a low likelihood 
that the Sprague Ranch will be negatively affected to any significant 
degree by Federal activities that were not consulted on in the existing 
Biological Opinions pursuant to section 7 consultation requirements, 
and (b) the Sprague Ranch is being managed in accordance with the terms 
and conditions of the Biological Opinions and we believe that based on 
ongoing management activities there would be no additional requirements 
pursuant to a consultation that addresses critical habitat. We believe 
there could be a small additional administrative cost as a result of 
designation of critical habitat to the Service, and a cost that could 
be more significant to the Corps and potentially non-Federal partners. 
If the Corps administrative costs are passed on to our non-Federal 
partners to conduct assessments and analyses, this could delay, or in 
worse case scenario prevent important management from being implemented 
on the Sprague Ranch or other properties managed for riparian values 
along the Kern River.
    We believe that exclusion of these lands will not result in the 
extinction of the subspecies because the flycatcher already occupies 
this segment of the Kern River, including the Sprague Ranch. Actions 
which might adversely affect the subspecies are expected to have a 
Federal nexus, and would thus undergo a section 7 consultation with the 
Service. The jeopardy standard of section 7 and routine implementation 
of habitat preservation through the section 7 process provide assurance 
that the species will not go extinct. In addition, the species is 
protected from take under section 9 of the Act. The exclusion leaves 
these protections unchanged from those that would exist if the excluded 
areas were designated as critical habitat.
    Critical habitat is being designated for the subspecies in other 
areas that will be accorded the protection from adverse modification by 
Federal actions using the conservation standard based on the Ninth 
Circuit decision in Gifford Pinchot. Additionally, the subspecies 
occurs on lands protected and managed either explicitly for the 
subspecies, or indirectly through more general objectives to protect 
natural habitat values. This provides protection from extinction while 
conservation measures are being implemented. The subspecies also occurs 
on lands managed to protect and enhance wetland values under the 
Wetlands Reserve Program of the NRCS.
    In conclusion, we find that the exclusion of critical habitat on 
the Sprague Ranch would most likely have a net positive conservation 
effect on the recovery and conservation of the southwestern willow 
flycatcher when compared to the positive conservation effects of a 
critical habitat designation. As described above, the overall benefits 
to these species of a critical habitat designation for these properties 
are relatively small. In contrast, we believe that this exclusion will 
enhance our existing partnership with the Corps, CDFG, and Audubon, and 
it will set a positive example and could provide positive incentives to 
other non-Federal landowners who may be considering implementing 
voluntary conservation activities on their lands. We conclude there is 
a higher likelihood of beneficial conservation activities occurring in 
these and other areas for the flycatcher

[[Page 60946]]

without designated critical habitat than there would be with designated 
critical habitat on the Sprague Ranch.
South Fork Kern River Wildlife Area
    Section 4(b)(2) of the Act requires us to consider other relevant 
impacts, in addition to economic impacts, of designating critical 
habitat. The South Fork Wildlife Area (SFWA) in the Kern Management 
Unit warrants exclusion from the final designation of critical habitat 
under Section 4(b)(2) of the Act because we have determined that the 
benefits of excluding the SFWA from southwestern willow flycatcher 
critical habitat designation will outweigh the benefits of including it 
in the final designation based on the special management considerations 
and protections afforded for southwestern willow flycatcher habitat. 
The SFWA is an approximately 514 ha (1,270 ac) parcel of mature willow-
cottonwood riparian forest located along the south fork of the Kern 
River, west of historic Patterson Lane, including a portion of upper 
Lake Isabella. The SFWA is jointly managed by the Corps and the U.S. 
Forest Service (Forest Service). Isabella Dam and southwestern willow 
flycatcher habitat in the SFWA is managed as a result of long-term 
biological opinions for Corps operation of Lake Isabella Dam and 
Reservoir (Service File Nos. 1-1-96-F-27; 1-1-96-F-150; 1-1-99-F-216; 
and 1-1-05-F-0067) and on-the-ground management by the Forest Service. 
These opinions resulted in the long-term management of Lake Isabella 
Dam that maintains the dynamic processes to establish flycatcher 
habitat over the long-term and resulted in the acquisition of the 
Sprague Ranch (immediately upstream of the SFWA) to compensate for 
short-term losses in habitat, and management of SFWA for southwestern 
willow flycatchers. The following represents our rationale for 
excluding the SFWA from the final designated critical habitat for the 
southwestern willow flycatcher in the Kern Management Unit.
    The management of Lake Isabella Dam is similar to other reservoirs 
(i.e., Roosevelt, Horseshoe, Mead) that develop nesting southwestern 
willow flycatcher habitat. As a result of fluctuating lake elevations, 
the broad floodplain of the upper portion of the lake bottom is 
periodically covered in water, which once the water recedes, provides 
conditions for the germination and development of large patches of 
riparian habitat for the flycatcher. Periodic inundation is 
subsequently needed in order to prevent the drying and loss of habitat 
so that habitat required by nesting flycatcher can regenerate and 
persist over the long-term.
    Lake Isabella Dam and Reservoir operations that periodically 
inundate the SFWA are managed by the Corps in accordance with the terms 
and conditions of the Biological Opinions which require actions for the 
conservation of flycatchers, including: Long-term studies of flycatcher 
habitat and demographics; implementation and monitoring of a cowbird 
trapping program; a nest moving protocol to prevent inundation of nests 
during high water events; measures to control water craft in 
coordination with the Forest Service; and the acquisition of 465 ha 
(1,150 ac) of land to compensate for incidental take resulting from the 
periodic inundation of the SFWA. To date, the Corps has acquired 415 ha 
(1,025 ac) of land to satisfy the conditions of the Biological 
Opinions. In the most recent amendment to the Biological Opinions, the 
Corps and the Service have committed to work together on acquiring the 
last 51 ha (125 ac) within five years of the date of the amendment 
(Service File No. 1-1-05-F-0067). Funding for the implementation of 
these measures is provided by the Corps in accordance with terms and 
conditions of the Biological Opinions.
    The SFWA is managed by the Forest Service within Lake Isabella 
(after the water recedes) and along the Kern River immediately 
upstream. Through informal consultation with the Forest Service, 
measures for the conservation of flycatchers have been implemented, 
including: restricting the speed of water craft to 8 km per hour (5 mi 
per hour) within 30.5 m (100 ft) of the SFWA; prohibition of overnight 
camping, motorized vehicles, and campfires in the South Fork Wildlife 
Area. The SFWA is fenced, and the fencing is maintained to enforce the 
exclusion of unauthorized uses. Grazing is also excluded from the SFWA.
(1) Benefits of Inclusion
    We believe that there is minimal benefit from designating critical 
habitat for the southwestern willow flycatcher within portions of the 
SFWA within the Kern Management Unit because, as explained above, these 
lands are already managed for the conservation of flycatcher.
    As stated in the environmental assessment, the primary conservation 
value of the proposed critical habitat segments is to sustain existing 
populations. The threshold for reaching destruction or adverse 
modification on the SFWA would likely require a reduction in the 
capability of the habitat to sustain existing populations. Because 
Isabella Dam operations provide the dynamics needed to sustain habitat 
over the long-term and the Forest manages the land for the benefit of 
wildlife and the flycatcher, it is highly unlikely that projects would 
be considered for this area that would result in a depreciable 
diminishment or long-term reduction of the capability of the habitat to 
sustain existing flycatcher populations. Similar to other lakes, one of 
the primary purposes of the conservation space of the lake bottom is to 
store water for delivery downstream. As a result of the importance of 
this space for temporary water storage, there is little to no reason to 
believe that within the lake bottom there would be any permanent 
development or alteration that would eliminate or significantly reduce 
the amount of open space where flycatcher habitat develops and 
persists. Concurrently, Forest Service management of cattle grazing 
activities and recreation through fencing and other restrictions has 
helped foster the development and maintenance of flycatcher habitat 
within the SFWA. As a result, dam operations and land management and 
long-term commitments through section 7 consultations have and will 
provide benefits to the flycatcher within the SFWA.
    As described above, the SFWA lands proposed for critical habitat 
may have additional conservation value above sustaining existing 
populations, because they are managing these lands to improve, protect, 
and possibly expand upon the amount of nesting habitat that would 
provide for growth of existing populations. Expansion of existing 
populations in these areas would be an element of recovering the 
southwestern willow flycatcher. Accordingly, and as further discussed 
above in the ``General Principles of Section 7 Consultations Used in 
the 4(b)(2) Balancing Process'' section, through section 7 
consultations that may occur, some benefit may incur through the 
adverse modification standard and whether or not the activity results 
in a reduction in the suitability of the habitat to support expansion 
of existing populations. However, because formal consultations will 
likely result in only discretionary conservation recommendations (i.e., 
adverse modification threshold is not likely to be reached), we believe 
there is an extremely low probability of mandatory elements (i.e., 
reasonable and prudent alternatives) arising from formal section 7 
consultations that include consideration of designated

[[Page 60947]]

southwestern willow flycatcher critical habitat.
    We believe the operation of Isabella Dam and current on-the-ground 
conservation measures being conducted for the flycatcher on the SWFA 
that include field studies, management of recreational uses, grazing 
exclusion, acquisition of upstream areas, fluctuating dam operations, 
and efforts to reduce predation and protection of nestlings from 
inundation provides as much as would be achieved through section 7 
consultations involving consideration of critical habitat, using a 
conservation standard based on the Ninth Circuit Court's decision in 
Gifford Pinchot.
    As discussed in the ``Educational Benefits of Critical Habitat'' 
section above, we believe that there would be little additional 
informational benefit gained from including these portions of the SFWA 
within the designation because this area is well known for its value to 
southwestern willow flycatcher by managing agencies and the public. 
Additionally, since this area is already being federally managed for 
the benefit of the flycatcher its importance to flycatcher conservation 
is already well established.
(2) Benefits of Exclusion
    The implementation of management actions for the southwestern 
willow flycatcher and its habitat within the SFWA may require further 
section 7 consultation between the Corps, the Forest Service, and the 
Service. As a result, there would be an additional use of time and 
money by each agency to develop sections of biological assessments and 
analyses in biological opinions to address a critical habitat 
designation. These costs would be an additional time and cost burden 
above that which would be required for section 7 consultations without 
critical habitat. It could cause delays to implementing beneficial 
management actions for the flycatcher. The use of time and effort on 
evaluation of projects on critical habitat could take away time, money, 
and effort by these agencies to implement beneficial flycatcher 
management on the SFWA or other areas where management is needed for 
the flycatcher such as the Sprague Ranch or other nearby Forest Service 
lands. Therefore, a benefit of excluding the SFWA from critical habitat 
includes some reduction in administrative costs associated with 
engaging in the critical habitat portion of section 7 consultations. 
Administrative costs include time spent in meetings, preparing letters 
and biological assessments, and in the case of formal consultations, 
the development of the critical habitat component of a biological 
opinion. The implementation of long-term management activities by Corps 
and Forest Service at SFWA has and will continue to help generate 
important status and trend information for flycatcher recovery within 
the Kern Management Unit.
    The exclusion of Lake Isabella from critical habitat may facilitate 
other cooperative conservation activities with other similarly situated 
dam operators or landowners. Throughout the comment period and during 
public hearings, we heard from many local residents who were very 
concerned with any possible restrictions to Lake Isabella lake levels 
as a result of a critical habitat designation. While Isabella is 
operated by the Corps and the land is managed by the Forest Service, 
the recreation associated with the lake was a significant concern for 
the community. Continued cooperative relations with Corps, Forest 
Service, and non-Federal stakeholders associated with recreation at 
Lake Isabella and local governments can be expected to influence other 
future partners and lead to greater conservation than might be achieved 
through multiple site-by-site, project-by-project, section 7 
consultations. The benefits of excluding lands within the SFWA from 
critical habitat designation include recognizing the value of 
conservation benefits associated with long-term management actions 
being implemented for the flycatcher and demonstrating to the Corps, 
Forest Service, Lake Isabella community, local governments, 
stakeholders, and landowners along the Kern River the benefits 
associated with implementing conservation activities.
    In contrast, failure to exclude the SFWA could be a disincentive 
for other entities contemplating partnerships with the Service, as it 
would be perceived as a way for the Service to impose additional 
regulatory burdens once conservation strategies have already been 
agreed to. As noted above, while long-term management of the SFWA 
management is conducted by the Corps and the Forest Service, Lake 
Isabella was of extreme importance and interest to local non-Federal 
stakeholders. The scoping meetings held at Lake Isabella, arguably the 
smallest community visited across six states, generated the largest 
attendance (hundreds of private citizens concerned over the possible 
designation of the area as critical habitat). Excluding this area from 
critical habitat would help foster a collaborative relationship with 
the Corps, Forest Service, stakeholders, landowners, and local 
governments associated with Lake Isabella and the Kern River. We 
believe this collaboration makes a difference in our ability to form 
partnerships with others. Concerns over perceived additional regulation 
imposed by critical habitat when long-term conservation strategies are 
being implemented harms collaborative relationships and can lead to 
distrust. Our experience has demonstrated that successful completion of 
conservation efforts such as HCPs, conservation easements, or the 
unique long-term section 7 consultation on Lake Isabella dam operations 
can result in the development of other conservation efforts and HCPs 
with other landowners.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, we have determined that the 
benefits of excluding the SFWA from critical habitat for the 
southwestern willow flycatcher in the Kern Management Unit outweigh the 
benefits of inclusion.
    The SFWA is currently operating under the terms and conditions of 
the Biological Opinions issued to the Corps and management agreed upon 
through informal consultation with the Forest Service. These long-term 
management commitments implement conservation measures and achieve 
important conservation goals through information obtained by field 
studies, management of recreational uses, grazing exclusion, 
acquisition and management of upstream acreage, and efforts to reduce 
predation and inundation of nests for the benefit of the southwestern 
willow flycatcher.
    The Service believes the additional educational and regulatory 
benefits of including the SFWA as critical habitat is relatively small 
to non-existent. The local community and managing agencies are well 
aware of the importance of Lake Isabella and the SFWA for southwestern 
willow flycatchers due to the notoriety consultation for Isabella Dam 
operation elicited in the community, concern by managing agencies, and 
awareness raised during the NEPA scoping process for this designation. 
The Service anticipates that the conservation strategies for SFWA will 
continue to be implemented in the future, and that the funding for 
these activities will be provided in accordance with the terms and 
conditions associated with the Biological Opinions under section 7 of 
the Act. We anticipate there will be little additional Federal 
regulatory benefit to the species because (a) there is a low likelihood 
that the SFWA will be negatively affected to any significant degree by 
Federal activities that were

[[Page 60948]]

not consulted on in the existing Biological Opinions pursuant to 
section 7 consultation requirements, and (b) we believe that based on 
past and ongoing Forest Service management activities there would be no 
additional requirements pursuant to a consultation that addresses 
critical habitat. We also believe that due to the purpose of the 
conservation space of Lake Isabella for water storage and delivery, 
there is no reason to expect that this area will be developed or 
altered in a way that would prevent the SFWA within Lake Isabella from 
being capable of supporting southwestern willow flycatcher habitat. 
While management of Isabella is accomplished through Federal agencies, 
the benefits of excluding lands within the SFWA from critical habitat 
designation include demonstrating to the concerned Lake Isabella 
community, local governments, stakeholders, and landowners along the 
Kern River the benefits associated with implementing conservation 
activities.
    We believe that exclusion of these lands will not result in the 
extinction of the southwestern willow flycatcher as the SFWA is 
occupied by the southwestern willow flycatcher. Actions which might 
adversely affect the species are expected to have a Federal nexus, and 
regardless of a critical habitat designation, would undergo a section 7 
consultation with the Service. The jeopardy standard of section 7 and 
routine implementation of habitat preservation through the section 7 
process provides assurance that the species will not go extinct. In 
addition, the species is protected from incidental take under section 9 
of the Act. The exclusion leaves these protections unchanged from those 
that would exist if the SFWA was designated as critical habitat.
    Critical habitat is being designated for the subspecies in other 
areas, including the Kern River adjacent to the SFWA that will be 
accorded protection from adverse modification by Federal actions using 
the conservation standard based on the Ninth Circuit decision in 
Gifford Pinchot. Additionally, the subspecies occurs on lands protected 
and managed either explicitly for the species, or indirectly through 
more general objectives to protect natural habitat values. This 
provides protection from extinction while conservation measures are 
being implemented. The subspecies also occurs on lands managed to 
protect and enhance wetland values under the Wetlands Reserve Program 
of the NRCS.
    In conclusion, we find that the benefits of excluding the SFWA 
outweigh the benefits of inclusion, and this exclusion will not result 
in extinction of the southwestern willow flycatcher. We believe the 
exclusion of critical habitat on the SFWA would most likely have a net 
positive conservation effect on the recovery and conservation of the 
southwestern willow flycatcher when compared to the positive 
conservation effects of a critical habitat designation. As described 
above, the overall benefits to the flycatcher of a critical habitat 
designation for these properties are relatively small. In contrast, we 
believe that this exclusion will enhance our existing partnership with 
the Corps, Forest Service, and local community, and due to the 
attention this generated within the local community, set a positive 
example that could provide positive incentives to other non-Federal 
landowners who may be considering implementing voluntary conservation 
activities on their lands. We conclude there is a higher likelihood of 
beneficial conservation activities occurring in these and other areas 
for the southwestern willow flycatcher without designated critical 
habitat than there would be with designated critical habitat on the 
SFWA.

Relationship of Critical Habitat to National Wildlife Refuge Lands-- 
Exclusions Under Section 4(b)(2) of the Act

    We have determined that areas essential to the conservation of the 
southwestern willow flycatcher include the following National Wildlife 
Refuges (NWR): Bill Williams NWR, Parker, AZ; Cibola NWR, Blythe, AZ; 
Imperial NWR, Yuma, AZ; Havasu NWR, Needles, CA; Alamosa/Monte Vista 
NWR, Alamosa, CO; Bosque del Apache and Sevilleta NWRs, Socorro, NM; 
and Pahranagat NWR, Alamo, NV. All of these refuges will be developing 
or in some cases (Sevilleta and Alamosa NWRs) have developed and 
completed Comprehensive Conservation Plans (CCPs) that provide the 
framework for protection and management of all trust resources, 
including federally listed species and sensitive natural habitats. 
These plans, and the management actions undertaken to implement them, 
will have to undergo (or have undergone) review and consultation under 
section 7 of the Act and evaluation for their consistency with the 
conservation needs of listed species. Those NWRs without approved CCPs 
currently have management plans and/or programs in place that provide 
conservation benefits for the southwestern willow flycatcher. Their 
annual work plans provide the specific tasks associated with 
accomplishing the broader Refuge objectives of wildlife habitat 
management. Some of these management plans have also been reviewed by 
the public under NEPA and consulted upon under section 7 of the Act. 
For example, the Lower Colorado River National Wildlife Refuges (Bill 
Williams, Havasu, Cibola, and Imperial NWRs) currently operate under a 
Comprehensive Management Plan (USFWS 1994) that has been evaluated 
under NEPA and section 7 of the Act. We believe that there is minimal 
benefit from designating critical habitat for the southwestern willow 
flycatcher within NWR lands because these lands are protected areas for 
wildlife, and are currently managed for the conservation of wildlife, 
including threatened and endangered species, specifically the 
southwestern willow flycatcher. Below we first provide a description of 
the special management being provided by the NWR lands within the 
proposed designation, followed by a 4(b)(2) analysis that weighs the 
benefits of excluding versus those of including these lands within the 
final designation.

Bill Williams Management Unit, AZ

Bill Williams NWR
    The Bill Williams NWR consists of 2,471 ha (6,105 ac) (USFWS 1994), 
and was originally established on January 22, 1941, concurrently with 
the Havasu NWR by Executive Order 8647. Some of the goals included in 
the lower Colorado River refuges (Havasu, Bill Williams, Cibola, and 
Imperial NWRs) Comprehensive Management Plan (1994-2014) (USFWS 1994) 
are to: ``* * * restore and maintain the natural diversity * * *''; ``* 
* * achieve threatened and endangered species recovery * * *''; ``* * * 
revegetate substantial amounts of habitat with native mixes of 
vegetation leading to biological diversity''; ``* * * enhance use of 
Colorado River water and protect existing water rights holdings * * 
*''; ``* * * ensure only compatible and appropriate activities occur * 
* * and * * * regulate all activities * * * that are potentially 
harmful to refuge resources''; and to ``* * * effect improvements to 
funding and staffing that will result in long lasting enhancements to 
habitat and wildlife resources * * * leading to achievement of the 
goals of this plan and the goals of the National Wildlife Refuge 
System.''
    The Bill Williams NWR Annual Habitat Work Plan for 2004-2005 
described the Executive Order establishing the area ``* * * as a refuge 
and breeding ground for migratory birds and other wildlife.'' This 
refuge includes the largest flood regenerated riparian forest on the 
Lower Colorado

[[Page 60949]]

River of approximately 931 ha (2300 ac) of cottonwood, willow, 
mesquite, and salt cedar woodlands and terrace shrublands. From 1994 to 
2003, 1 to 15 flycatcher territories were detected on the refuge, with 
the largest number of territories detected in 2002 (USGS 2004). Migrant 
willow flycatchers have also been detected (Koronkiewicz et al. 2004). 
Their habitat goals are to protect, maintain, and if possible, enhance 
habitats, particularly those for neotropical migrants, endangered 
species, and other species of concern. This is being done by monitoring 
the location of flycatchers and other sensitive species, and protecting 
habitat from: wildfire, impacts of recreation, and exotic weeds such as 
Fountain Grass and Arundo spp.
    The effort by the refuge to maintain and improve the abundance and 
quality of riparian vegetation provides a conservation benefit to the 
flycatcher. As a result of the refuge's effort and long-term commitment 
to provide a conservation benefit to the southwestern willow 
flycatcher, we believe these protections and assurances warrant 
exclusion from flycatcher critical habitat.

Hoover to Parker Management Unit, AZ/CA

Havasu NWR
    The Havasu NWR was established by Executive Order 8647 on January 
22, 1941, ``* * * as a refuge and breeding ground for migratory birds 
and other wildlife.'' It consists of 15,551 ha (38,427 ac) (USFWS 
1994). Some of the goals included in the lower Colorado River refuges 
(Havasu, Bill Williams, Cibola, and Imperial NWRs) Comprehensive 
Management Plan (1994-2014) (USFWS 1994) are to: ``* * * restore and 
maintain the natural diversity * * *''; ``* * * achieve threatened and 
endangered species recovery * * *''; ``* * * revegetate substantial 
amounts of habitat with native mixes of vegetation leading to 
biological diversity*rdquo;; ``* * * enhance use of Colorado River 
water and protect existing water rights holdings * * *''; ``* * * 
ensure only compatible and appropriate activities occur * * * and * * * 
regulate all activities * * * that are potentially harmful to refuge 
resources''; and to ``* * * effect improvements to funding and staffing 
that will result in long lasting enhancements to habitat and wildlife 
resources * * * leading to achievement of the goals of this plan and 
the goals of the National Wildlife Refuge System.'' In addition, 
flycatcher management on this refuge will work in conjunction with 
additional flycatcher management throughout the LCR MSCP (see section 
describing Relationship of Critical Habitat to Approved Habitat 
Conservation Plans--Exclusions Under Section 4(b)(2) of the Act).
    The Havasu NWR Annual Habitat Work Plan for 2004-2005 identifies 
specific areas where habitat for the southwestern willow flycatcher 
will be maintained, improved, protected, and managed. Overall, the 
refuge manages for a variety of habitat types that provide locations 
for waterfowl, wading birds, passerines, etc. Because southwestern 
willow flycatchers are a keystone woody riparian species, management 
and improvement of habitat for the flycatcher (and all riparian 
passerine species) is a specific goal of the refuge. Between 2 and 20 
flycatcher territories have been detected on the refuge between 1995 
and 2003 (USGS 2004), as well as migrating southwestern willow 
flycatchers (Koronkiewicz et al. 2004). A high of 20 territories were 
detected in 2002.
    Riparian habitat restoration and maintenance projects are underway 
and will continue in order to provide a conservation benefit for the 
flycatcher. For example, approximately 40 ha (100 ac) in the Beal Unit 
and 20 ha (50 ac) in the Pintail Unit are being restored and managed 
for woody riparian vegetation that can be used by migrant and possibly 
nesting flycatchers. During the 2004 fiscal year, a total of 8,765 
cottonwoods, 4,800 Goodding's willows, 4,065 Coyote willow, and 940 
mesquites were planted in the Beal Unit. In the Pintail Unit, during 
the 2004 fiscal year, 1,650 cottonwoods and 1,175 willows were planted. 
In the 1,619 ha (4,000 ac) Topock Unit, habitat exists and is being 
managed for nesting flycatchers and wading birds, and the 202 ha (500 
ac) Whiskey Slough Unit is also targeted for management for 
southwestern willow flycatchers.
    In addition to the riparian restoration efforts occurring on the 
refuge, additional management occurs in order to improve habitat 
quality and persistence. Specific water management to mimic the natural 
hydrology is needed for woody vegetation and to maintain conditions and 
prey for nesting flycatchers. Management of feral pigs that can harm 
and destroy vegetation is needed to protect habitat. Additionally, 
management of exotic woody and weed species such as salt cedar and 
Johnson grass occurs to reduce risks of fire in riparian areas.
    The effort by the refuge to maintain and improve the abundance, 
distribution, and quality of riparian vegetation provides a 
conservation benefit to the flycatcher. Additional water management is 
an essential component to the success of plantings and existing habitat 
conditions favored by the flycatcher. Protecting habitat by reducing 
the reducing the risk of fire and destruction by feral pigs also 
provides a conservation benefit. As a result of the refuge's effort and 
long-term commitment to provide a conservation benefit to the 
southwestern willow flycatcher, we believe these protections and 
assurances warrant exclusion from flycatcher critical habitat.

Parker to Southerly International Border Management Unit, AZ/CA

Cibola NWR
    The Cibola NWR consists of approximately 6,745 ha (16,667 ac) 
(USFWS 1994). Some of the goals included in the lower Colorado River 
refuges (Havasu, Bill Williams, Cibola, and Imperial NWRs) 
Comprehensive Management Plan (1994-2014) (USFWS 1994) are to: ``* * * 
restore and maintain the natural diversity * * * ''; ``* * * achieve 
threatened and endangered species recovery * * *''; ``* * * revegetate 
substantial amounts of habitat with native mixes of vegetation leading 
to biological diversity''; ``* * * enhance use of Colorado River water 
and protect existing water rights holdings * * * ''; ``* * * ensure 
only compatible and appropriate activities occur * * * and * * * 
regulate all activities * * * that are potentially harmful to refuge 
resources''; and to ``* * * effect improvements to funding and staffing 
that will result in long lasting enhancements to habitat and wildlife 
resources * * * leading to achievement of the goals of this plan and 
the goals of the National Wildlife Refuge System.'' In addition, 
flycatcher management on this refuge will work in conjunction with 
additional flycatcher management throughout the LCR MSCP (see section 
describing Relationship of Critical Habitat to Approved Habitat 
Conservation Plans--Exclusions Under Section 4(b)(2) of the Act).
    The Cibola NWR 2004-2005 Annual Habitat Work Plan identifies as its 
main objective, the restoration of wetland, riverine, riparian, moist 
soil and agricultural habitat in order to maintain the natural 
abundance and diversity of native species, habitats and communities 
which are found in the Lower Colorado River floodplain (with emphasis 
on trust resources, endangered and threatened species, and other 
species of concern). As a result, the migratory and nesting habitat of 
the

[[Page 60950]]

southwestern willow flycatcher, as well as habitat for other passerine 
species is specifically identified as the important habitat to 
maintain, preserve, and restore. A single southwestern willow 
flycatcher territory has been detected on the refuge (USGS 2004) as 
well as migrating willow flycatchers (Koronkiewicz et al. 2004).
    The Cibola NWR has specifically identified as a goal, maintaining 
existing native riparian woodland and restoring an average of 20 ha (50 
ac) annually through seeding and planting native mesquite, cottonwood, 
and willow trees, and associated understory plants. Three different 
Refuge Management Units that contain approximately 323 ha (800 ac), 6 
ha (15 ac), and 40 ha (100 ac) of habitat, are designated for 
restoration to native mesquite, cottonwood, and willows.
    Previous plantings and habitat maintenance has occurred, which has 
resulted in improved habitat conditions for the flycatcher. At one 7 ha 
(17.8 ac) field where about 7,100 one gallon cottonwood and willow 
trees were planted in 2003, the area has shown extensive use by birds, 
including detections of migrant willow flycatchers and yellow-billed 
cuckoos.
    Protection of existing sites through fire management and 
replacement of poor quality salt cedar to less flammable and higher 
quality native plant species is occurring as part of the refuge's 
restoration efforts. Reducing the amount of unsuitable salt cedar and 
replacing it with native mesquite, cottonwoods, and willows, provides 
improved habitat value for flycatchers and other passerines and reduces 
the risk of wildfire.
    The refuge-wide effort to maintain and improve the abundance, 
distribution, and quality of riparian vegetation provides a 
conservation benefit to the flycatcher. The protection of this habitat 
by reducing the risk of fire through management of flammable salt 
cedar, also provides a conservation benefit. As a result of Cibola's 
refuge-wide effort and long-term commitment to provide a conservation 
benefit to the southwestern willow flycatcher by improving the 
abundance, distribution, quality, and persistence of native riparian 
vegetation for nesting and migrating flycatchers, we believe these 
protections and assurances warrant exclusion from flycatcher critical 
habitat.
Imperial NWR
    The Imperial NWR consists of 10,428 ha (25,768 ac). Some of the 
goals included in the lower Colorado River refuges (Havasu, Bill 
Williams, Cibola, and Imperial NWRs) Comprehensive Management Plan 
(1994-2014) (USFWS 1994) are to: ``* * * restore and maintain the 
natural diversity * * *''; ``* * * achieve threatened and endangered 
species recovery * * *''; ``* * * revegetate substantial amounts of 
habitat with native mixes of vegetation leading to biological 
diversity''; ``* * * enhance use of Colorado River water and protect 
existing water rights holdings * * *''; ``* * * ensure only compatible 
and appropriate activities occur * * * and * * * regulate all 
activities * * * that are potentially harmful to refuge resources''; 
and to ``* * * effect improvements to funding and staffing that will 
result in long lasting enhancements to habitat and wildlife resources * 
* * leading to achievement of the goals of this plan and the goals of 
the National Wildlife Refuge System.'' In addition, flycatcher 
management on this refuge will work in conjunction with additional 
flycatcher management throughout the LCR MSCP (see section describing 
Relationship of Critical Habitat to Approved Habitat Conservation 
Plans--Exclusions Under Section 4(b)(2) of the Act).
    The Imperial NWR Annual Habitat Work Plan for 2004-2005 identifies 
specific areas where riparian habitat will be maintained, improved, 
protected, and managed. Overall, the refuge manages for a variety of 
habitat types that provide locations for waterfowl, wading birds, 
passerines, etc. Their Work Plan specifically identifies 15 Management 
Units (totaling about 648 ha/1600 ac) where habitat for riparian 
obligate passerines is a target. Not every hectare/acre of these Units 
is dedicated specifically to woody riparian habitat. Restoration and 
management of flycatcher habitat include maintenance of areas with 
woody riparian vegetation, and restoration and protection through 
methods such as planting, salt cedar control, and prescribed burns. The 
Backwater Riversedge Management Unit has an additional 2,270 ha (5,609 
ac) of salt cedar, willow, remnant cottonwoods, and scattered marshes 
for southwestern willow flycatchers. One to five flycatcher territories 
were detected for 3 years on the refuge between 1996 and 2003 (USGS 
2004), as well as migrating southwestern willow flycatchers 
(Koronkiewicz et al. 2004).
    The refuge-wide effort to maintain and improve the abundance, 
distribution, and quality of riparian vegetation provides a 
conservation benefit to the flycatcher. The protection of this habitat 
by reducing the risk of wildfire through management of flammable salt 
cedar, also provides a conservation benefit. As a result of Imperial's 
refuge-wide effort and long-term commitment to provide a conservation 
benefit to habitat for nesting and migrating southwestern willow 
flycatchers, we believe these protections and assurances warrant 
exclusion from flycatcher critical habitat.

Middle Rio Grande Management Unit, NM

Bosque del Apache NWR
    The Bosque del Apache NWR consists of 23,117 ha (57,121 ac), of 
which approximately 4,856 ha (12,000 ac) occur within the Rio Grande 
floodplain. Since 1986, the refuge has been actively restoring riparian 
forests and grasslands. In 1999, the refuge expanded its ``place of 
use'' increasing the potential for additional riparian habitat to be 
restored. Since 1993, migratory and nesting southwestern willow 
flycatchers have been annually detected at the refuge with 1 to 5 
territories detected (USGS 2004).
    The refuge currently manages eight sites for southwestern willow 
flycatcher habitat. Within the historic floodplain there is currently 
an estimated 32 ha (78 ac) of native-dominated flycatcher habitat, and 
within the active floodplain, 23 ha (58 ac) of native-dominated habitat 
is estimated to exist. More suitable habitat in non-native and native 
vegetation exists.
    The refuge is planning to manage seven areas specifically for 
southwestern willow flycatcher breeding habitat in the active 
floodplain and four areas in the historic floodplain. Combined, these 
11 areas total 271 ha (669 ac).
    The refuge currently uses a variety of restoration and management 
techniques to create, maintain, and protect southwestern willow 
flycatcher habitat. Flammable salt cedar is being selectively removed 
and replaced with native vegetation and grasslands in order to improve 
the quality and abundance of flycatcher habitat. The reduction of 
exotic vegetation, increase in native vegetation, and creation of 
grassland fire breaks reduces the occurrence and impact of wildfire. In 
order to achieve restoration success with native woody riparian 
vegetation, water is being applied to restoration sites in order to 
mimic the timing of natural hydrograph (the refuge has a license for 
12,417 acre feet of water per year). Also, within the active 
floodplain, in order to restore/improve channel floodplain connection, 
water distribution, channel movement, and sediment transport, banks are 
planned

[[Page 60951]]

for de-stabilization as are limited topographic changes to the 
floodplain are needed.
    The refuge-wide effort to maintain and improve the abundance, 
distribution, and quality of riparian vegetation provides a 
conservation benefit to the flycatcher. The protection of this habitat 
by reducing the risk of fire through management of flammable salt 
cedar, also provides a conservation benefit. As a result of Bosque del 
Apache's refuge-wide effort and long-term commitment to provide a 
conservation benefit to the southwestern willow flycatcher habitat for 
nesting and migrating flycatchers, we believe these protections and 
assurances warrant exclusion from flycatcher critical habitat.
Sevilleta NWR
    The Sevilleta NWR's CCP describes 10 goals that promote the 
diversity, protection, management, enhancement, and maintenance of 
wildlife habitat. A few of those goals are specific to the management 
of southwestern willow flycatcher habitat. A specific goal is to 
``provide for the enhancement, preservation, and protection of 
threatened and endangered species as they occur naturally or were 
historically present on the Sevilleta NWR so that viable, self-
sustaining populations can be restored to their natural habitats.'' 
Additional goals describe, restoring and maintaining ``* * * the 
natural diversity of plants and wildlife * * *,'' and protecting 
existing, and securing ``* * * additional water rights and/or in-stream 
flow rights as necessary to protect the integrity of the riparian and 
aquatic habitats on the refuge.'' A total of 4 to 10 flycatcher 
territories have been detected on the refuge between 1999 and 2003 
(USGS 2004).
    The CCP more specifically describes the refuge's objectives to meet 
the goal of enhancing riparian habitat on the Rio Grande. At Sevilleta 
NWR, one objective is to ``* * * preserve refuge habitat diversity and 
threatened and endangered species habitats by preserving and enhancing 
habitats to their natural condition.'' Another is to ``reverse 
declining trends in quality and quantity of riparian wetland habitats; 
restore, maintain, and enhance the species composition, aerial extent, 
and spatial distribution of riparian/wetland habitats.'' The CCP also 
describes that a key objective is to ``* * * preserve, enhance, and 
restore hydrological regimes in order to perpetuate a healthy river 
ecosystem.''
    The CCP describes the goal of providing, ``* * * 100 acres (40 ha) 
of cottonwood/willow habitat specifically for southwestern willow 
flycatchers.'' In addition to the main goals and objectives specific to 
river function and riparian habitat, the CCP describes strategies in 
order to reach this flycatcher objective such as controlling non-native 
vegetation, implementing management practices that ensure survival of 
and eliminate impacts to naturally occurring threatened and endangered 
species, and restoring native plants.
    The effort to maintain and improve the abundance, distribution, and 
quality of riparian vegetation provides a conservation benefit to the 
flycatcher. As a result of the Sevilleta NWR's effort and long-term 
commitment to provide a conservation benefit to the southwestern willow 
flycatcher by improving the abundance, distribution, quality, and 
persistence of native riparian vegetation for nesting and migrating 
flycatchers, we believe these protections and assurances warrant 
exclusion from flycatcher critical habitat.

San Luis Valley Management Unit, CO

Alamosa NWR
    The Alamosa NWR's CCP describes 13 goals that promote the 
diversity, protection, management, enhancement, and maintenance of 
wildlife habitat. One of those goals is specific to the management of 
habitat used by the southwestern willow flycatcher. This goal is to 
``enhance the Rio Grande corridor and its tributaries on refuge lands 
to provide habitat for river, riparian dependent, and other wetland 
species.'' A total of 19 to 29 southwestern willow flycatcher 
territories have been detected on the refuge between 1997 and 2003 
(USGS 2004). In addition, flycatcher management on this refuge will 
work in conjunction with additional flycatcher management throughout 
the San Luis Valley Management Unit (see section describing 
Relationship of Critical Habitat to Partnerships).
    The CCP more specifically describes the refuge's objectives to meet 
the goal of enhancing riparian habitat on the Rio Grande. At Alamosa 
NWR, the objective is to ``* * * dense multi-layered native riparian 
vegetation such as willows and cottonwoods for breeding and migrating 
riparian obligate species, notably the southwestern willow flycatcher * 
* *'' Additionally, an objective is to protect the aquatic resources 
and provide for a disturbance free breeding environment for migratory 
species. The refuge intends to perpetuate the natural aspect of the 
physical and biological characteristics of the Rio Grande floodplain. 
Additionally, the refuge intends to protect sufficient habitat for the 
southwestern willow flycatcher through easement and fee-title 
acquisition, habitat improvements on the refuge, and protections of 
habitat on private lands through Partners for Fish and Wildlife 
Programs.
    The refuge-wide effort to maintain and improve the abundance, 
distribution, and quality of riparian vegetation provides a 
conservation benefit to the flycatcher. As a result of Alamosa's 
refuge-wide effort and long-term commitment to provide a conservation 
benefit to the southwestern willow flycatcher by improving the 
abundance, distribution, quality, and persistence of native riparian 
vegetation for nesting and migrating southwestern willow flycatchers, 
we believe these protections and assurances warrant exclusion from 
southwestern willow flycatcher critical habitat.

Pahranagat Management Unit, NV

Pahranagat NWR
    The Pahranagat NWR was established for the conservation of 
wildlife, including migratory birds like the southwestern willow 
flycatcher. The Refuge's draft CCP specifies as one of its goals the 
enhancement of wildlife diversity and contribution to the recovery of 
endangered, threatened, and special status species through habitat 
improvements and restoration.
    In order to accomplish this goal for the southwestern willow 
flycatcher, the refuge is currently engaged in a variety of management 
actions. They are maintaining 41 ha (100 acs) of cottonwood/willow 
riparian habitat specifically for breeding southwestern willow 
flycatchers and other migratory birds. Additionally, over the last 
three years the refuge has planted over 6,000 willows and cottonwood 
trees on 81 ha (200 ac) to provide more breeding habitat for the 
flycatcher. The refuge continues to help coordinate with other agencies 
in their surveys and research of southwestern willow flycatchers and to 
seek funding to develop more acreage into cottonwood/willow through 
restoration efforts.
    As a result of the refuge's management, the population of breeding 
southwestern willow flycatchers has increased from 5 to 14 territories 
between 1997 and 2003 (USGS 2004). The refuge-wide effort to maintain 
and improve the abundance, distribution, and quality of riparian 
vegetation provides a conservation benefit to the flycatcher. As a 
result of the refuge's goals for conserving wildlife, and their 
commitment to improving the abundance, distribution, quality, and

[[Page 60952]]

persistence of native riparian vegetation for nesting and migrating 
southwestern willow flycatchers, we believe these protections and 
assurances warrant exclusion from southwestern willow flycatcher 
critical habitat.
(1) Benefits of Inclusion for NWR lands
    We believe that there is minimal benefit from designating critical 
habitat for the southwestern willow flycatcher on NWR lands because, as 
explained in detail above, these lands are already managed for the 
conservation of wildlife.
    As stated in the environmental assessment, the primary conservation 
value of the proposed critical habitat segments is to sustain existing 
populations. The threshold for reaching destruction or adverse 
modification on NWR lands would likely require a reduction in the 
capability of the habitat to sustain existing populations. It is likely 
that actions that would reduce the capability of the habitat to sustain 
a population would also jeopardize the continued existence of the 
species. Consequently, the outcome of the section 7 consultations on 
NWR lands may not be materially different with designation of critical 
habitat compared to the listing of the species alone. In addition, 
given that these lands are managed for the conservation of wildlife, in 
particular endangered and threatened species, and specifically riparian 
habitat for migratory and nesting southwestern willow flycatchers, it 
is highly unlikely that the NWR lands would consider undertaking any 
projects that would result in a long-term reduction of the capability 
of the habitat to sustain existing populations. To the contrary, 
activities occurring within NWR lands are specifically for the benefit 
of the flycatcher, by restoring, improving, and protecting its habitat.
    As described above, all of NWR lands proposed for critical habitat 
may have additional conservation value above sustaining existing 
populations, because they are managing these lands to improve, protect, 
and expand upon the amount of nesting habitat that would provide for 
growth of existing populations. Expansion of existing populations in 
these areas would be an element of recovering the southwestern willow 
flycatcher. Accordingly, through section 7 consultations that may 
occur, some benefit may incur through the adverse modification standard 
and whether or not the activity results in a reduction in the 
suitability of the habitat to support expansion of existing 
populations. However, because formal consultations will likely result 
in only discretionary conservation recommendations (i.e., adverse 
modification threshold is not likely to be reached), we believe there 
is an extremely low probability of mandatory elements (i.e., reasonable 
and prudent alternatives) arising from formal section 7 consultations 
that include consideration of designated southwestern willow flycatcher 
critical habitat.
    The draft environmental assessment found that minor changes through 
section 7 consultation may occur in the form of additional 
discretionary conservation recommendations to reduce impacts to the 
primary constituent elements. For activities that NWR's are anticipated 
to engage in, those are expected to primarily be projects focused on 
habitat restoration and fire management. One formal consultation for 
habitat restoration has occurred on NWR lands (Parahnagat NWR, NV) that 
resulted in incidental take of one flycatcher territory. Both 
restoration and fire management activities were anticipated in the 
draft environmental assessment to possibly have short-term adverse 
impacts to PCEs, but long-term beneficial effects from protections and 
improvement of habitat quality, quantity, and persistence. However, as 
discussed above, consultations on these activities would be similar to 
existing conditions, where consultations already address potential 
affects to the southwestern willow flycatcher because these river 
segments are occupied by nesting and migrating southwestern willow 
flycatchers. The outcome of the section 7 consultations on these NWRs 
may not be materially different with designation of critical habitat 
compared to the listing of the species alone due to the threshold for 
reaching destruction or adverse modification on proposed critical 
habitat. Moreover, we note that while additional conservation 
recommendations may result for projects of this nature, they would be 
discretionary on the part of the Federal agency.
(2) Benefits of Exclusion for NWR lands
    The benefits of excluding NWR lands include a reduction in 
administrative costs associated with engaging in section 7 
consultations for critical habitat Administrative costs include 
additional time spent in meetings and preparing letters, and in the 
case of biological assessments and informal and formal consultations, 
the development of those portions of these documents that specifically 
address the critical habitat designation. NWR staff can, more 
appropriately, use these funds toward continuing to manage and improve 
NWR lands for their stated purpose, wildlife conservation (and 
southwestern willow flycatcher conservation). In the future, these 
refuges will likely engage in low effort informal intra-Service section 
7 consultations annually, and less frequently formal consultations, to 
address impacts of activities on the southwestern willow flycatcher 
(primarily those associated with habitat restoration and fire 
management). Potential project modifications are likely to be minimal, 
given the beneficial nature of the NWR activities and projects.
(3) Benefits of Exclusion Outweigh Benefits of Inclusion
    In summary, we believe that the benefits of excluding NWR's from 
the designation of critical habitat for the southwestern willow 
flycatcher outweigh the benefits of including the NWR's in critical 
habitat. We find that including the NWR's would result in very minimal, 
if any additional benefits to the southwestern willow flycatcher, as 
explained above. However, including the NWRs in the designation would 
require some additional administrative effort and cost during the 
section 7 consultation process. Although the additional effort to 
consider and analyze the affects of various projects on critical 
habitat may not be substantial, it would require the NWR's to use 
additional resources that may be otherwise used towards beneficial 
projects for wildlife (and the southwestern willow flycatcher).
    We also find that the exclusion of these NWRs will not lead to the 
extinction of the southwestern willow flycatcher, nor hinder its 
recovery because there is the emphasis at each NWR to protect and 
enhance habitat specifically for the southwestern willow flycatcher.

Relationship of Critical Habitat to American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and 
the relevant provision of the Departmental Manual of the Department of 
the Interior (512 DM 2), we believe that fish, wildlife, and other 
natural resources on tribal lands are

[[Page 60953]]

better managed under tribal authorities, policies, and programs than 
through Federal regulation wherever possible and practicable. Based on 
this philosophy, we believe that, in many cases, designation of tribal 
lands as critical habitat provides very little additional benefit to 
threatened and endangered species. Conversely, such designation is 
often viewed by tribes as an unwanted intrusion into tribal self 
governance, thus compromising the government-to-government relationship 
essential to achieving our mutual goals of managing for healthy 
ecosystems upon which the viability of threatened and endangered 
species populations depend.
    We have determined that the following Tribes and Pueblos have lands 
essential to the conservation of the southwestern willow flycatcher: 
Chemehuevi, Colorado River, Fort Mojave, Quechan (Fort Yuma), Hualapai, 
Isleta, La Jolla, Pala, Rincon, San Carlos, San Illdefonso, San Juan, 
Santa Clara, Santa Ysabel, and Yavapai-Apache. In making our final 
decision with regard to tribal lands, we considered several factors 
including our relationship with the Tribe or Pueblo and whether a 
management plan has been developed for the conservation of the 
southwestern willow flycatcher on their lands.
    Tribal governments protect and manage their resources in the manner 
that is most beneficial to them. Each of the affected Tribes exercises 
legislative, administrative, and judicial control over activities 
within the boundaries of their respective lands. Additionally, they 
have natural resource programs and staff, and some have generated 
Southwestern Willow Flycatcher Management Plans (SWFMP). In addition, 
as trustee for land held in trust by the United States for Indian 
Tribes, the BIA provides technical assistance to the Tribes on 
management planning and oversees a variety of programs on Tribal lands. 
Flycatcher conservation activities have been ongoing on many Tribal 
lands included in the proposed critical habitat designation. On other 
Tribal lands, their natural resource management, while not specific to 
the flycatcher, has been consistent with management of habitat for the 
flycatcher. The development and implementation of these efforts 
formalized in these Management Plans will continue with or without 
critical habitat designation.
Tribal Conservation/Management Plans/Partnerships
    In this section, we first provide the specifics of the SWFMPs that 
were developed by the Tribes/Pueblos (Chemehuevi, Colorado River, Fort 
Mojave, Quechan--Fort Yuma, Hualapai, Isleta, La Jolla, Rincon, San 
Carlos, and Yavapai-Apache). These plans were all admitted to the 
supporting record during the open comment period for the proposed rule. 
After this introduction, we analyze the benefits of including these 
lands within the critical habitat designation and the benefits of 
excluding these areas. We have also developed partnerships specifically 
for the management of southwestern willow flycatcher habitat on the San 
Illdefonso, Santa Clara, and San Juan Pueblos in northern New Mexico. 
We provide a description of those partnerships and a benefits analysis 
for each of these Pueblos at the end of the tribal section below.
Tribal Conservation/Management Plans
    In this section, we first provide the specifics of the SWFMP that 
were developed by the Tribes/Pueblos. These plans were all admitted to 
the supporting record during the open comment period for the proposed 
rule. After this introduction, we analyze the benefits of including the 
Tribes' lands within the critical habitat designation and the benefits 
of excluding these areas.

Middle Colorado Management Unit, AZ

Hualapai Tribe
    The Hualapai Tribe sits alongside a segment of essential 
southwestern willow flycatcher habitat along the Colorado River on the 
south side of the channel in the Middle Colorado Management Unit above 
Lake Mead. The Hualapai Tribe had no known southwestern willow 
flycatcher territories in 2003, but has eight sites where territories 
have previously been detected. The Hualapai Tribe has finalized a SWFMP 
and the plan has been adopted by the Hualapai Tribal Council.
    The SWFMP's objectives are to: manage riparian vegetation to 
maximize continued presence of native plant species suitable for use by 
southwestern willow flycatchers; ensure that existing land uses (which 
presently include recreational activities) will not result in net loss 
or reduction in quality of southwestern willow flycatcher habitat; and 
continue their Department of Natural Resources partnership in the 
management of the lower Colorado River (see section describing 
Relationship of Critical Habitat to Approved Habitat Conservation 
Plans--Exclusions Under Section 4(b)(2) of the Act).
    This SWFMP specifically addresses and presents assurances for 
southwestern willow flycatcher conservation measures. There would be no 
net loss or permanent modification from management of suitable native 
riparian habitat to the bird. Any restoration activities that are 
directed at reducing nonnative tamarisk, controlling fire, construction 
of roads, or recreational management within occupied willow flycatcher 
habitat, will be coordinated with the Service to ensure that 
detrimental impacts are minimized. Helicopter flights will not approach 
closer than 91 m (300 feet) of occupied habitat to avoid any possible 
physical damage to birds or habitat from over-flights. Campsite 
management will continue to ensure that no detrimental impacts to 
overall willow flycatcher habitat quality. The Tribe will continue to 
ensure documentation of breeding and migratory use by willow 
flycatchers, pending availability funds. In this regard, the Hualapai 
Nation will continue to seek funding through Tribal sources, partners 
associated with the LCR MSCP, and outside grant sources. The Tribe will 
encourage recreational use awareness of the conservation needs of the 
willow flycatcher wherever possible. The Tribe will implement a 
cowbird-trapping program if parasitism becomes a problem in the future, 
dependent on available funds.
    As a result of the assurances, protections, and conservation 
benefit provided the southwestern willow flycatcher and its habitat on 
Hualapai Tribal lands described above, we are excluding this area from 
flycatcher critical habitat.

Hoover to Parker Management Unit, AZ/CA

Fort Mojave Tribe
    The Fort Mojave Tribe sits alongside a segment of essential 
southwestern willow flycatcher habitat along the Colorado River in the 
Hoover to Parker Management Unit above Lake Havasu. The Fort Mojave 
Tribe currently has no known southwestern willow flycatcher 
territories, but these lands are within the geographic area occupied by 
the species due to the proximity of known southwestern willow 
flycatcher territories upstream and downstream, dispersal behavior, 
movements, and migratory habitats. Southwestern willow flycatchers are 
currently expected to use Fort Mojave lands along the Lower Colorado 
River for foraging and shelter during migration. In addition, 
flycatcher management on Tribal Land will work in conjunction with 
additional flycatcher management

[[Page 60954]]

throughout the LCR MSCP (see section describing Relationship of 
Critical Habitat to Approved Habitat Conservation Plans--Exclusions 
Under Section 4(b)(2) of the Act).
    The Fort Mojave Tribe has completed a SWFMP. Within the budgetary 
constrains of the Fort Mojave Indian Tribe and the Service, the Tribe 
has committed to continue management to sustain the current value of 
saltcedar and willow and cottonwood stands that meet moist soil 
conditions necessary to maintain the species; to continue to utilize 
lands that do not have moist soil characteristics for territory and 
associated nesting purposes for agricultural and other cultural, 
economic and social needs; to carry out monitoring to determine species 
presence and vegetation status in cooperation with the Service; and to 
continue to provide wildfire response and law enforcement to protect 
habitats having moist soil conditions of value for feeding within a 
nesting area and similarly protect native cottonwood, willow, and 
mesquite habitats to benefit the southwestern willow flycatcher.
    As a result of the assurances, protections, and conservation 
benefit provided the southwestern willow flycatcher and its habitat on 
Fort Mojave Tribal lands described above, we are excluding this area 
from flycatcher critical habitat.
Chemehuevi Tribe
    The Chemehuevi Tribe sits alongside a segment of essential 
southwestern willow flycatcher habitat along the Colorado River on the 
west side of the channel in the Hoover to Parker Management Unit 
adjacent to the Colorado River and Lake Havasu. The Chemehuevi Tribe 
currently has no known southwestern willow flycatcher territories, but 
these lands are within the geographic area occupied by the species due 
to the proximity of known southwestern willow flycatcher territories 
upstream and downstream, dispersal behavior, movements, and migratory 
habitats. Southwestern willow flycatchers are currently expected to use 
Chemhuevi lands along the Lower Colorado River for foraging and shelter 
during migration. In addition, flycatcher management on Tribal Land 
will work in conjunction with additional flycatcher management 
throughout the LCR MSCP (see section describing Relationship of 
Critical Habitat to Approved Habitat Conservation Plans--Exclusions 
Under Section 4(b)(2) of the Act).
    The Chemehuevi Tribe has finalized a SWFMP, that within funding 
limits, commits the Tribe to continue to control wild fire, improve 
native plant presence through restoration projects, minimize impacts 
associated with recreational or other use along the river and lake 
shorelines, and collaborate with the Service to improve conditions for 
the flycatcher by discussing and implementing projects to reduce burro 
damage. The SWFMP identifies the management of riparian saltcedar and 
native willow, cottonwood, and mesquite to maximize native plant 
presence. Management will be done in cooperative work effort with the 
Service to identify restoration sites and provide early control 
response to wild fires that would result in no net loss or permanent 
modification that is detrimental to flycatcher or its habitat as 
specified by the Recovery Plan (USFWS 2002). Any permanent river or 
lakeshore land use changes, such as recreational or other developments, 
will take habitat needs of the flycatcher into account and will be done 
in mutual consultation with the Service so as to design plans that 
minimize detrimental impacts to habitat requirements. The SWFMP 
identifies continued cooperation between the Tribe and Service to 
ensure continued management of or improve to habitat conditions. 
Continued monitoring of habitat and flycatchers and long-term 
restoration of native plants (e.g. cottonwood, mesquite, and willow), 
within funding constraints, will result in no net habitat loss or 
permanent habitat modification to avoid detrimental impacts to the 
flycatcher as specified in the Recovery Plan.
    As a result of the assurances, protections, and conservation 
benefit provided the southwestern willow flycatcher and its habitat on 
Chemehuevi Tribal lands described above, we are excluding this area 
from flycatcher critical habitat.

Parker to Southerly International Border Management Unit, AZ/CA

Colorado Indian Tribes (CRIT)
    We determined that the CRIT have areas that are essential to the 
conservation of the southwestern willow flycatcher along the Colorado 
River. The CRIT currently has no known southwestern willow flycatcher 
territories, but these lands are within the geographic area occupied by 
the species due to the proximity of known southwestern willow 
flycatcher territories upstream and downstream, dispersal behavior, 
movements, and migratory habitats. Southwestern willow flycatchers are 
currently expected to use CRIT lands along the Lower Colorado River for 
foraging and shelter during migration. The CRIT have been active in 
riparian restoration within tribal boundaries, where territories may 
become established. In addition, flycatcher management on Tribal Land 
will work in conjunction with additional flycatcher management 
throughout the LCR MSCP (see section describing Relationship of 
Critical Habitat to Approved Habitat Conservation Plans--Exclusions 
Under Section 4(b)(2) of the Act).
    The Colorado River Indian Tribes have submitted a final SWFMP, 
which describes the protections and assurances for the flycatcher. The 
SWFMP identifies schedules for breeding habitat surveys and monitoring 
flycatcher nesting activity. The SWFMP also identifies the assessment, 
identification, and protection of flycatcher migration habitat. The 
SWFMP identifies protecting breeding habitat with the Ahakhav Tribal 
Preserve and in any areas established for flycatchers with the LCR 
MSCP. Seasonal closures of occupied habitat during the breeding season 
may be necessary and established by the CRIT. Protection of flycatcher 
habitat from fire is established in the SWFMP, as well as protections 
from other possible stressors such as overgrazing, recreation, and 
development.
    As a result of the assurances, protections, and conservation 
benefit provided the southwestern willow flycatcher and its habitat on 
CRIT lands described above, we are excluding this area from flycatcher 
critical habitat.
Quechan (Fort Yuma) Indian Tribe
    We determined that the Quechan Tribe has areas that are essential 
to the conservation of the southwestern willow flycatcher along the 
Colorado River near the City of Yuma. The Quechan Tribe currently has 
no known southwestern willow flycatcher territories, but these lands 
are within the geographic area occupied by the species due to the 
proximity of known southwestern willow flycatcher territories upstream 
and downstream, dispersal behavior, movements, and migratory habitats. 
Southwestern willow flycatchers are currently expected to use Quechan 
lands along the Lower Colorado River for foraging and shelter during 
migration. In addition, flycatcher management on Tribal Land will work 
in conjunction with additional flycatcher management throughout the LCR 
MSCP (see section describing Relationship of Critical Habitat to 
Approved Habitat Conservation Plans--Exclusions Under Section 4(b)(2) 
of the Act).
    The Quechan Tribe has completed a SWFMP. The objectives of the 
SWFMP

[[Page 60955]]

specifically address and present assurances for southwestern willow 
flycatcher habitat conservation measures. The Tribe will manage 
riparian saltcedar that is intermixed with cottonwood, willow, 
mesquite, and arrowweed to maximize potential value for use by 
flycatchers for nesting. Any permanent land use changes for recreation 
or other reasons will consider the biological needs of the flycatcher 
and support flycatcher conservation needs as long as consistent with 
Tribal cultural and economic needs. The Tribe will consult with the FWS 
to develop/design plans that minimize impacts to habitat requirements 
for the flycatcher. The Tribe will establish collaborative 
relationships with the FWS to benefit the flycatcher including 
monitoring for flycatcher presence and habitat condition, all within 
the constraints of available funds to the Tribe. These goals and 
objectives will result in no net habitat loss or permanent modification 
to habitat values as specified within the Recovery Plan (USFWS 2002).
    As a result of the assurances, protections, and conservation 
benefit provided the southwestern willow flycatcher and its habitat on 
Quechan Tribal lands described above, we are excluding this area from 
flycatcher critical habitat.

Upper Gila Management Unit, AZ

San Carlos Apache Tribe
    The San Carlos Apache Tribe has completed a SWFMP. The Tribe highly 
values its wildlife and natural resources which it is charged to 
preserve and protect under the Tribal Constitution. Consequently, the 
Tribe has long worked to manage the habitat of wildlife on its tribal 
lands, including the habitat of endangered and threatened species. We 
understand that it is the Tribe's position that a designation of 
critical habitat on its lands improperly infringes upon their tribal 
sovereignty and the right to self-government.
    The San Carlos Apache Tribes' SWFMP provides assurances and a 
conservation benefit to the southwestern willow flycatcher. 
Implementation of the SWFMP will result in protecting all known 
flycatcher habitat on San Carlos Tribal Land and assure no net habitat 
loss or permanent modification will result. All habitat restoration 
activities (whether it is to rehabilitate or restore native plants) 
will be conducted under reasonable coordination with the Service. All 
reasonable measures will be taken to ensure that recreational 
activities do not result in a net habitat loss or permanent 
modification. All reasonable measures will be taken to conduct 
livestock grazing activities under the guidelines established in the 
Recovery Plan (USFWS 2002). Within funding limitations and under 
confidentiality guidelines established by the Tribe, the Tribe will 
cooperate with the Service to monitor and survey habitat for breeding 
and migrating flycatchers, conduct research, and perform habitat 
restoration, cowbird trapping, or other beneficial flycatcher 
management activities.
    As a result of the assurances, protections, and conservation 
benefit provided to the southwestern willow flycatcher and its habitat 
on San Carlos Apache Tribal lands described above, we are excluding 
this area from flycatcher critical habitat.

Verde Management Unit, AZ

Yavapai-Apache Nation
    We determined that the Yavapai-Apache Nation has areas that are 
essential to the conservation of the southwestern willow flycatcher 
along the Verde River in AZ. The Yavapai-Apache Nation currently has no 
known southwestern willow flycatcher territories, but these lands are 
within the geographic area occupied by the species due to the proximity 
of known southwestern willow flycatcher territories upstream and 
downstream, dispersal behavior, movements, and migratory habitats. 
Southwestern willow flycatchers are currently expected to use Yavapai-
Apache lands along the Verde River for foraging and shelter during 
migration.
    The Yavapai-Apache Nation has completed a SWFMP. The objectives of 
the SWFMP specifically address and present assurances for southwestern 
willow flycatcher habitat conservation measures. The Nation will, 
through zoning, Tribal ordinances and code requirements, and measures 
identified in the Recovery Plan, take all practicable steps to protect 
known southwestern willow flycatcher habitat located in the riparian 
areas located along the Verde River. The Nation will take all 
reasonable measures to assure that no net habitat loss or permanent 
modification of flycatcher habitat will result from recreational and 
road construction activities, or habitat restoration activities, and 
will take all reasonable steps to coordinate with the Service so that 
flycatcher habitat is protected. Within funding limitations and under 
confidentiality guidelines established by the Tribe, the Tribe will 
cooperate with the Service to monitor and survey habitat for breeding 
and migrating flycatchers, conduct research, and perform habitat 
restoration, cowbird trapping, or other beneficial flycatcher 
management activities.
    As a result of the assurances, protections, and conservation 
benefit provided the southwestern willow flycatcher and its habitat on 
Yavapai-Apache Tribal lands described above, we are excluding this area 
from flycatcher critical habitat.

Middle Rio Grande Management Unit, NM

Pueblo of Isleta
    The Pueblo of Isleta has amended its riverine management plan to 
include the southwestern willow flycatcher. The main objective of the 
flycatcher portion of this plan is to protect, conserve, and promote 
the management of the southwestern willow flycatcher and its associated 
habitat within the Pueblo's boundaries.
    The Pueblo of Isleta's Management Plan focuses on identifying the 
distribution and abundance of breeding flycatchers, their reproductive 
success, and reducing stressors. Cattle grazing is not allowed in the 
riparian area. Fire management will be conducted to protect flycatcher 
habitat. Management of flycatcher habitat includes protecting occupied 
habitat, maintaining native vegetation, and preventing habitat 
fragmentation.
    As a result of the assurances, protections, and conservation 
benefit provided the southwestern willow flycatcher and its habitat on 
Pueblo lands described above, we are excluding this area from 
flycatcher critical habitat.

San Diego Management Unit, CA

La Jolla Band of Luise[ntilde]o Indians
    The San Luis Rey (approximately 5 km/8 mi) flows through the Lo 
Jolla Band of Indian Tribal Lands in northern San Diego County, CA. The 
Tribe has identified that river flow is controlled by Lake Henshaw Dam 
that can sometimes, due to drought, cause interruptions in flow and 
possibly limit the development of riparian habitat and success for 
species such as the southwestern willow flycatcher. This section of 
stream was proposed as critical habitat. The La Jolla Tribe currently 
has no known southwestern willow flycatcher territories, but these 
lands are within the geographic area occupied by the species due to the 
proximity of known southwestern willow flycatcher territories, upstream 
and downstream, dispersal behavior, movements, and migratory habitats. 
Southwestern willow flycatchers are currently expected to use La Jolla 
lands along the San Luis Rey for foraging and shelter during migration.

[[Page 60956]]

    The Tribe has described a collection of measures, protections, and 
efforts they are and will be undertaking to protect riparian habitat 
for the southwestern willow flycatcher. The Tribe maintains permanent 
staff to address environmental issues, of which a Master's level 
biologist is employed. The Tribe will work to maintain open space along 
the river, with a particular emphasis on the western 2 km/3.5 mi 
stretch of stream. The Tribe is working to establish this piece of 
river as a reserve for environmental and cultural purposes. Management 
of native vegetation and removal of exotic vegetation is occurring that 
could improve the quality and abundance of native species, and/or 
decrease the risk of wildfire in the riparian area. They are also 
actively reducing the impact of recreation in riparian areas by 
continuing to educate Tribal Members through outreach programs and 
newsletters. Tribal staff are also developing brochures to provide to 
campground visitors to encourage good stewardship and to educate them 
on how to reduce impacts to the land. Additionally they are working to 
discourage use of off-road vehicles in riparian areas through 
education, movement of roads, closures, and development of Tribal 
ordinances. The Tribe will explore future opportunities for research to 
determine how to best manage for flycatchers. For example, they 
indicated that it may be necessary to initiate a cowbird trapping 
program if appropriate.
    As a result of the assurances, protections, and conservation 
benefit provided the southwestern willow flycatcher and its habitat on 
La Jolla Tribal Lands through maintenance of open space, management, 
and protections, we are excluding this area from flycatcher critical 
habitat.
Rincon Tribe
    The San Luis Rey River (roughly 3 km/1.8 mi) flows through Rincon 
Tribal Lands in northern San Diego County, CA, just downstream from La 
Jolla Tribal Land. The entire section of stream was proposed as 
critical habitat. The Rincon Tribe currently has no known southwestern 
willow flycatcher territories, but these lands are within the 
geographic area occupied by the species due to the proximity of known 
southwestern willow flycatcher territories, upstream and downstream, 
dispersal behavior, movements, and migratory habitats. Southwestern 
willow flycatchers are currently expected to use Rincon lands along the 
San Luis Rey River for foraging and shelter during migration.
    The Tribe has completed a plan that addresses potential threats to 
flycatcher habitat through implementation of a variety of protective 
measures. The Tribe will monitor and remove introduced exotic plants 
that could reduce the quality and abundance of native species, and/or 
increase the risk of wildfire in the riparian. They will exclude 
activities in the floodplain which could remove or reduce the quality 
of riparian habitat such as mining and livestock grazing. The Tribe 
will exclude unauthorized recreational uses and off-road vehicle use. 
Signs, boundaries, and/or other measures will be taken to educate the 
public and prevent unauthorized recreational use.
    The Tribe will dedicate funding to this effort and report to the 
Service its annual progress. The Tribe will coordinate with the Service 
on whether the Plan requires updating. The Tribe hopes to incorporate 
these activities into a formalized HCP that is targeted for completion 
in 2006. In the event that a decision is made to not complete the HCP, 
this Plan will be revised and adopted for another 30 years.
    As a result of the assurances, protections, and conservation 
benefit provided the southwestern willow flycatcher and its habitat on 
Rincon Tribal Lands through implementation of their management plan, we 
are excluding this area from flycatcher critical habitat.
(1) Benefits of Inclusion for Tribal Lands
    Few additional benefits would be derived from including these 
Tribal lands in a flycatcher critical habitat designation beyond what 
will be achieved through the implementation of their management plans. 
The principal benefit of any designated critical habitat is that 
activities in and affecting such habitat require consultation under 
section 7 of the Act. Such consultation would ensure that adequate 
protection is provided to avoid destruction or adverse modification of 
critical habitat. However, we conclude that few regulatory benefits to 
the flycatcher would be gained from a designation of critical habitat 
on these Tribal lands because, as described above, these Tribes are 
already managing their lands consistent with the Recovery Plan. When we 
review projects pursuant to section 7 for the flycatcher we review them 
for their consistency with the Recovery Plan. Therefore, consultations 
would not be materially different without a designation of critical 
habitat since we would use a similar approach in this case for both the 
jeopardy and adverse modification analyses. Also, where there is 
consistency with the Recovery Plan, it would be highly unlikely that 
the consultation would result in a determination of adverse 
modification. Thus, as noted above, when the threshold for adverse 
modification is not reached, as noted above, additional conservation 
recommendations could result out of a consultation, but such measures 
would be discretionary on the part of the Federal agency. These Tribes 
have already agreed under the terms of their flycatcher management 
plans to protect flycatcher habitat, to ensure no net loss, to 
coordinate with the Service, and to conduct activities consistent with 
the Recovery Plan. Accordingly, we find the consultation process for a 
designation of critical habitat is unlikely to result in additional 
protections for the flycatcher on Tribal lands.
    Another possible benefit is that the designation of critical 
habitat can help to inform the Tribes/Pueblos regarding potential 
conservation value of an area, and may focus efforts by clearly 
delineating areas of high conservation value for the flycatcher. Any 
information about the flycatcher and its habitat that reaches a wide 
audience, including other parties engaged in conservation activities, 
would be considered valuable. These Tribes/Pueblos are currently 
working with the Service to address habitat and conservation needs for 
the flycatcher. Additionally, we anticipate that these Tribes/Pueblos 
will continue to actively participate in working groups, and provide 
for the timely exchange of management information. The educational 
benefits important for the long-term survival and conservation of the 
flycatcher are being realized. Educational benefits will continue on 
these lands if they are excluded from the designation, because the 
management/conservation plans already recognize the importance of those 
habitat areas to the flycatcher. Additionally, we included these lands 
in the proposed and final rules as areas essential to the conservation 
of the southwestern willow flycatcher so information about their 
essential nature has been published through this rulemaking process.
    Another possible benefit is the additional funding that may be 
generated for habitat restoration or improvement by having an area 
designated as critical habitat. In some instances, having an area 
designated as critical habitat may improve the ranking a project 
receives during evaluation for funding. Tribes/Pueblos often require 
additional sources of funding in order to conduct wildlife-related 
activities. Therefore, having an area designated as

[[Page 60957]]

critical habitat could improve the chances of Tribes receiving funding 
for flycatcher-related projects. However, the perceived restrictions of 
a critical habitat designation would likely have a more damaging effect 
to coordination efforts, possibly preventing actions that might 
maintain, improve, or restore habitat. Additionally, areas occupied by 
nesting, migrating, dispersing, or foraging flycatchers, as is the case 
here, also provide benefits when projects are evaluated for receipt of 
funding.
    For these reasons, then, we believe that designation of critical 
habitat would have few additional benefits beyond those that will 
result from continued consultation under the jeopardy standard.
(2) Benefits of Exclusion
    The benefits of excluding these Tribal Lands from designated 
critical habitat are more significant. They include: (1) The 
advancement of our Federal Indian Trust obligations and our deference 
to tribes to develop and implement tribal conservation and natural 
resource management plans for their lands and resources, which includes 
the flycatcher; (2) the maintenance of effective working relationships 
to promote the conservation of the flycatcher and its habitat; (3) the 
allowance for continued meaningful collaboration and cooperation; (4) 
the provision of conservation benefits to riparian ecosystems and the 
flycatcher and its habitat that might not otherwise occur; and (5) the 
reduction or elimination of administrative and/or project modification 
costs as analyzed in the economic analysis.
    During the development of the flycatcher critical habitat proposal 
(and coordination for other critical habitat proposals), and other 
efforts such as development of the Southwestern Willow Flycatcher 
Recovery Plan, we have met and/or communicated with various Tribes/
Pueblos to discuss how they might be affected by the regulations 
associated with flycatcher management, flycatcher recovery, and the 
designation of critical habitat. As such, we established relationships 
with Tribes/Pueblos specific to flycatcher conservation. As part of our 
relationship, we provided technical assistance to each of these Tribes/
Pueblos to develop measures to conserve the flycatcher and its habitat 
on their lands. These measures are contained within the management/
conservation plans that we have in our supporting record for this 
decision (see discussion above). These proactive actions were conducted 
in accordance with Secretarial Order 3206, ``American Indian Tribal 
Rights, Federal--Tribal Trust Responsibilities, and the Endangered 
Species Act'' (June 5, 1997); the President's memorandum of April 29, 
1994, ``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951); Executive Order 13175; and the relevant 
provision of the Departmental Manual of the Department of the Interior 
(512 DM 2). We believe that these Tribes/Pueblos should be the 
governmental entities to manage and promote the conservation of the 
flycatcher on their lands. During our communication with these Tribes/
Pueblos, we recognized and endorsed their fundamental right to provide 
for tribal resource management activities, including those relating to 
riparian ecosystems.
    The designation of critical habitat on these Tribal or Pueblo lands 
would be expected to adversely impact our working relationship with 
these Tribes. In fact, during our discussions with these Tribes and 
from comments received, many informed us that critical habitat would be 
viewed as an intrusion on their sovereign abilities to manage natural 
resources in accordance with their own policies, customs, and laws. To 
this end, we found that each Tribe would prefer to work with us on a 
government-to-government basis. For these reasons, we believe that our 
working relationships with these Tribes would be better maintained if 
they are excluded from the designation of critical for the flycatcher. 
We view this as a substantial benefit since we have developed a 
cooperative working relationship with the Tribes and Pueblos for the 
mutual benefit of the conservation of the southwestern willow 
flycatcher and other threatened and endangered species.
    We indicated in the proposed rule (October 12, 2004; 69 FR 60706) 
that our final decision regarding the designation of critical habitat 
on Tribal Lands, would consider our relationship with Tribes and/or 
Pueblos and whether they developed a flycatcher specific management 
plan. We identified that the Colorado River Indian Tribes and Hualapai 
Tribe had draft plans and the Santa Ana Pueblo had developed a Safe 
Harbor Agreement with us for flycatchers. Santa Ana Pueblo lands were 
not included in the proposal. We also discussed our continued 
cooperation with Tribes and Pueblos during the comment period on the 
development of Management Plans. During the comment period, we received 
input from many Tribes and BIA offices expressing the view that 
designating critical habitat for the flycatcher on Tribal land would 
adversely affect the Service's working relationship with all Tribes. 
Many noted the beneficial cooperative working relationships between the 
Service and Tribes have assisted in the conservation and recovery of 
listed species and other natural resources. They indicated that 
critical habitat designation on these Tribes or Pueblos would amount to 
additional Federal regulation of sovereign Nations' lands, and would be 
viewed as an unwarranted and unwanted intrusion into Tribal natural 
resource programs. We conclude that our working relationships with 
these Tribes on a government-to-government basis have been extremely 
beneficial in implementing natural resource programs of mutual 
interest, and that these productive relationships would be compromised 
by critical habitat designation of these Tribal lands.
    In addition to management/conservation actions described for the 
conservation of the flycatcher, we anticipate future management/
conservation plans to include conservation efforts for other listed 
species and their habitat. We believe that many Tribes and Pueblos are 
willing to work cooperatively with us to benefit other listed species, 
but only if they view the relationship as mutually beneficial. 
Consequently, the development of future voluntarily management actions 
for other listed species will likely be contingent upon whether these 
Tribal lands are designated as critical habitat for the flycatcher. 
Thus, a benefit of excluding these lands would be future conservation 
efforts that would benefit other listed species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, the benefits of including these Tribes and Pueblos in 
the critical habitat designation are limited to a potential benefit 
gained through the requirement to consult under section 7 and 
consideration of the need to avoid adverse modification of critical 
habitat and potential educational benefits. However, as discussed in 
detail above, we believe these benefits are provided for through other 
mechanisms. The benefits of excluding these areas from being designated 
as critical habitat for the flycatcher are more significant, and 
include encouraging the continued implementation of the tribal 
management/conservation measures such as monitoring, survey, 
restoration, protection, and fire-risk reduction activities that are 
planned for the future or are currently being implemented. These 
programs will allow the Tribes to manage their natural resources to

[[Page 60958]]

benefit riparian ecosystems for the flycatcher, without the perception 
of Federal Government intrusion. This philosophy is also consistent 
with our published policies on Native American natural resource 
management. The exclusion of these areas will likely also provide 
additional benefits to the flycatcher and other listed species that 
would not otherwise be available due to the Service's ability to 
encourage and maintain cooperative working relationships with other 
Tribes and Pueblos. We find that the benefits of excluding these areas 
from critical habitat designation outweigh the benefits of including 
these areas.
    As noted above, the Service may exclude areas from the critical 
habitat designation only if it is determined, ``based on the best 
scientific and commercial data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species concerned.'' Here, we have determined that exclusion of these 
Tribes and Pueblos from the critical habitat designation will not 
result in the extinction of the flycatcher. First, activities on these 
areas that may affect the flycatcher will still require consultation 
under section 7 of the Act. Section 7(a)(2) of the Act requires Federal 
agencies to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of listed species. 
Therefore, even without critical habitat designation on these lands, 
activities that occur on these lands cannot jeopardize the continued 
existence of the flycatcher. Second, each of the Tribes have committed 
to protecting and managing according to their management/conservation 
plans and natural resource management objectives. In short, the Tribes 
have committed to greater conservation measures on these areas than 
would be available through the designation of critical habitat. With 
these natural resource measures, we have concluded that this exclusion 
from critical habitat will not result in the extinction of the 
flycatcher, chiefly because the management/conservation plans are 
generally based on the management tenets of the Recovery Plan. 
Accordingly, we have determined that these Tribes and Pueblos should be 
excluded under subsection 4(b)(2) of the Act because the benefits of 
excluding these lands from critical habitat for the flycatcher outweigh 
the benefits of their inclusion and the exclusion of these lands from 
the designation will not result in the extinction of the species.

Upper Rio Grande Management Unit

San Ildefonso Pueblo
    We have worked with San Ildefonso Pueblo (Pueblo) to consolidate 
information on their past, present, and future voluntary measures, 
restoration projects, and management to conserve the southwestern 
willow flycatcher and its habitat on their lands. We have determined, 
pursuant to section 4(b)(2) of the Act, that we will exclude the lands 
of this Pueblo, in the Upper Rio Grande Management Unit, from the final 
designation of critical habitat. As described in our 4(b)(2) analysis 
below, we have reached this determination because of our effective 
working relationship with the Pueblo and the benefits of excluding 
their lands from the final critical habitat designation outweigh the 
benefits of designating their lands.
    San Ildefonso Pueblo is in Santa Fe County, approximately 37 km (23 
mi) north of the city of Santa Fe. It encompasses approximately 10,602 
ha (26,198 ac) in the Rio Grande valley, including approximately 434 ha 
(1,073 ac) of the Rio Grande floodplain. On the Pueblo, water is 
diverted from the Rio Grande for an irrigation system that supports 
Tribal agricultural practices. Multiple-use practices of the river and 
riparian habitat resources are an essential component of Tribal 
activities and culture, and as a result, the Pueblo has taken steps to 
manage all the components of the riparian habitat (bosque) to ensure 
that it is intact for future generations. The need for bosque 
restoration on the Pueblo includes the fact that it is an area of 
wildland urban interface and current fuel levels in the riparian area 
pose a fire threat. Over the years, the bosque area has been overtaken 
by non-native plant species that have created a hazardous potential for 
wildland fire within the urban interface. The removal of non-native 
vegetation with the planting of native vegetation and floodplain 
rehabilitation are being conducted by the Pueblo. Flycatcher surveys 
are conducted by the Bureau of Indian Affairs (BIA) before the 
implementation of projects and they have not detected any flycatchers 
in the project areas (Norman Jojola, BIA Northern Pueblos Agency, pers. 
comm., August 24, 2005). The Pueblo's long-term management objectives 
include efforts to reestablish and maintain sustainable native plant 
communities in the Rio Grande floodplain and improve habitat, including 
wetland restoration, for culturally important plant and wildlife 
species, including the southwestern willow flycatcher.
    Since 1995, we have been working with the Pueblo and the BIA on 
wildlife-related projects. We established and maintain a cooperative 
working relationship with the BIA and their consultants when they 
requested our involvement and review of environmental assessments for 
Pueblo projects that included evaluations of habitat for flycatchers. 
We reviewed the project proposals, environmental assessments, and 
resulting determinations, and all but one of the proposed projects were 
determined to have ``no effect'' or to have an insignificant and 
discountable effect. The one project that was a ``may effect'' is 
described below.
    The project that had the determination of ``may affect, not likely 
to adversely affect'' the flycatcher (Service Cons. 2-22-99-I-
187, 1999), involved the installation of exploratory wells in the 
bosque, and resulted in an informal consultation for the flycatcher and 
its habitat. Surveys in the project area did not detect any flycatchers 
and a 10 by 15 m (32 by 50 ft) patch of potential flycatcher habitat 
was not affected by the project. In 2001, we also provided technical 
advice to the BIA and the Pueblo for upcoming bosque restoration 
projects (Norman Jojola, BIA, August 24, 2005). It was determined that 
nesting habitat did not exist at the proposed project sites. Surveys 
conducted by BIA did not detect any flycatchers at the sites.
    A 2003-2005 project that we consulted on involves approximately 749 
acres along the east side of the Rio Grande within the bosque corridor 
of San Ildefonso Pueblo (Service 2003, 2004). The project will restore 
native riparian vegetation and the floodplain by removal of non-native 
plants and the enhancement of native vegetation and wetlands. The BIA 
and the Pueblo consulted with us to address concerns about the 
flycatcher and its habitat at this project site. Flycatcher surveys 
were conducted and no flycatchers were detected. It was determined that 
the flycatcher nesting habitat did not exist at the project site and 
the effect to migration habitat would be insignificant and 
discountable.
    The bosque is important to the traditional life of the people of 
the Pueblo of San Ildefonso. The Pueblo is managing the vegetation and 
water components of the bosque to ensure its integrity for the future. 
They were awarded a Pub. Law 93-638 contract in 2003 to implement the 
development of a reservation-wide Integrated Resource Management Plan. 
This process provides the opportunity for the Pueblo to address its 
resources as a whole and

[[Page 60959]]

provide a holistic management approach which would include threatened 
and endangered species and their habitat. As a sovereign entity they 
seek to continue to protect and manage their resources according to 
their traditional and cultural practices, with consideration given to 
the prevention of wildfires given that it is an area of wildland urban 
interface (San Ildefonso, August 22, 2005).
    The Pueblo request that their land be excluded from the designation 
of critical habitat in that they want the Service to recognize their 
sovereign status and their right to manage their own resources. They 
consider the designation of critical habitat on their land as a total 
disregard of the Service's trust responsibility to the Tribe and their 
sovereign status (BIA Northern Pueblos Agency, July 11, 2005). They 
recognize the importance of their land as a migration area for the 
flycatcher and they understand that due to their proximity to known 
territories that their lands were included in the proposal as essential 
habitat, which includes the potential for dispersal of flycatchers and 
future development of nesting habitat. However, their traditions and 
culture have a holistic approach to resource management and they want 
the Service to recognize this and exclude the Pueblo from the 
designation of critical habitat.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is that 
activities in and affecting such habitat require consultation under 
section 7 of the Act if a Federal action is involved. Such 
consultations ensure that adequate protection is provided to avoid 
destruction or adverse modification of critical habitat. The section 7 
conferencing and consultations involving projects on lands of the San 
Ildefonso Pueblo for the flycatcher have all been informal. Effects to 
the flycatcher from Pueblo projects have been insignificant and 
discountable with determinations of ``no effect'' or ``may affect, not 
likely to adversely affect'' the flycatcher and its habitat. These 
determinations resulted from the beneficial nature of the projects 
proposed to the flycatcher (e.g., restoration and fuels reduction 
projects). Given that lands of the San Ildefonso Pueblo are managed in 
a way that provide benefits to the flycatcher, it is highly unlikely 
that projects would be considered that would result in a depreciable 
diminishment or long-term reduction of the capability of the habitat to 
provide for areas of migration and dispersal. To the contrary, 
activities occurring on these lands will provide benefits to the 
flycatcher by restoring, improving, and protecting its habitat. Thus we 
conclude that few regulatory benefits to the flycatcher would be gained 
from a designation of critical habitat on the Pueblo lands because, as 
described above, and as evidence by the consultation history, the 
Pueblo is already managing their lands for the benefit of the 
flycatcher and its habitat. Furthermore, based on the consultation 
history and the beneficial nature of the projects undertaken by the 
Pueblo, it would be highly unlikely that the consultation would result 
in a determination of adverse modification. Thus, as described in the 
``General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process'' section above, when the threshold for adverse 
modification is not reached, additional conservation recommendations 
could result out of a consultation, but such measures would be 
discretionary on the part of the Federal agency.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. Any information about the 
flycatcher and its habitat that reaches a wide audience, including 
other parties engaged in conservation activities, would be considered 
valuable. However, the Pueblo is already working with the Service to 
understand the habitat needs of the species. Further, the Pueblo lands 
were included in the proposed designation, which itself has reached a 
wide audience, and has thus provided information to the broader public 
about the conservation value of this area. Thus, the educational 
benefits that might follow critical habitat designation, such as 
providing information to the BIA or the Pueblo on areas that are 
important for the long-term survival and conservation of the species, 
have already been provided by proposing the area as critical habitat. 
For these reasons, then, we believe that designation of critical 
habitat would have few, if any, additional benefits beyond those that 
will result from continued consultation for the presence of the 
species.
(2) Benefits of Exclusion
    The benefits of excluding San Ildefonso Pueblo from designated 
critical habitat are significant. The proposed critical habitat 
designation included approximately 434 ha (1,073 ac) of Rio Grande 
floodplain within the Pueblo boundaries. We believe that the 
significant benefits that would be realized by forgoing the designation 
of critical habitat on this area include: (1) The furtherance of our 
Federal Trust obligations and our deference to the Pueblo to develop 
and implement Tribal conservation and natural resource management plans 
for their lands and resources within the Rio Grande ecosystem, which 
includes the flycatcher and its habitat; (2) the continuance and 
strengthening of our effective working relationships with the Pueblo to 
promote the conservation of the flycatcher and its habitat; (3) the 
allowance for continued meaningful collaboration and cooperation in 
surveying as we work towards recovery of the species; and (4) the 
provision of conservation benefits to the Rio Grande ecosystem and the 
flycatcher and its habitat that might not otherwise occur.
    As discussed above, we met with San Ildefonso Pueblo to discuss how 
they might be affected by the designation of critical habitat. The 
meetings with the Pueblo were conducted in accordance with Secretarial 
Order 3206; the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59 
FR 22951); Executive Order 13175; and the relevant provision of the 
Departmental Manual of the Department of the Interior (512 DM 2). We 
believe that the Pueblos should be the governmental entities that 
manage and promote the conservation of the flycatcher on their lands 
and this was stated during meetings. We also recognized and endorsed 
their resource management activities, including those relating to the 
Rio Grande ecosystem. Much of our discussions centered on providing 
technical advice/assistance to the Pueblo to continue their natural 
resource management activities that provide benefits to the flycatcher.
    Our meetings with the Pueblo are a component of our effective 
working relationship with them. We established a working relationship 
in respect to the flycatcher with the earlier informal consultations 
discussed above. We are maintaining the relationship by means of 
informal meetings that offer information sharing and technical advice/
assistance about project effects to flycatchers and recommended 
conservation measures.
    We find that conservation benefits (e.g., flycatcher surveys and 
habitat restoration enhancement) are being provided to the flycatcher 
and its habitat through our cooperative working relationship with the 
San Ildefonso Pueblo. During our discussions with the Pueblo we were 
informed that critical

[[Page 60960]]

habitat would be viewed as an intrusion on their sovereign abilities to 
manage natural resources in accordance with their own policies, 
customs, and laws. To this end, we found that the Pueblo would prefer 
to work with us on a Government-to-Government basis. For these reasons, 
we believe that our working relationship with the Pueblo would be 
maintained if they are excluded from the designation of critical 
habitat for the flycatcher.
    The consultation history, conservation, restoration, and management 
information submitted to us by the Pueblo documents that meaningful 
collaborative and cooperative work for the flycatcher and its habitat 
will continue within their lands. These commitments demonstrate the 
willingness of the Pueblo to work cooperatively with us toward 
conservation efforts that will benefit the flycatcher. The Pueblo has 
committed to several ongoing and future management, restoration, 
enhancement, and survey activities and we believe that the results of 
these activities will promote long-term protection and conserve the 
flycatcher and its habitat within the Pueblo lands. The benefits of 
excluding this area from critical habitat will encourage the continued 
cooperation and development of data-sharing and management plans. If 
this area is designated as critical habitat, we believe it is unlikely 
that sharing of information would occur.
    Educational benefits will be provided to the Pueblo lands if they 
are excluded from the designation because their past and ongoing 
restoration projects, with management goals, provide for conservation 
benefits above any that would be provided by designating critical 
habitat. For example, the educational aspects are likely greater for 
this area if they are not included in the designation because the 
Pueblo will continue to work cooperatively with the Service to restore 
and enhance their Rio Grande floodplain with habitat that will 
contribute to the recovery of the species. Surveys that are conducted 
for the presence or absence of flycatchers at projects sites will 
record migration use of the area and the participation by tribal 
biologist in the survey process adds to educational benefits and 
conservation of the species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, the benefits of including the Pueblo in critical 
habitat are small, and are limited to minor educational benefits. The 
benefits of excluding these areas from critical habitat for the 
flycatcher are more significant, and include encouraging the continued 
development and implementation of special management measures such as 
surveys, enhancement, and restoration activities that are planned for 
the future or are currently being implemented. These activities and 
projects will allow the Pueblo to manage their natural resources to 
benefit the Upper Rio Grande Management Unit for the flycatcher, 
without the perception of Federal Government intrusion because of the 
designation of critical habitat on their land. This philosophy is also 
consistent with our published policies on Native American natural 
resource management. The exclusion of this area will likely also 
provide additional benefits to the species that would not otherwise be 
available to encourage and maintain cooperative working relationships. 
We find that the benefits of excluding this area from critical habitat 
designation outweigh the benefits of including this area.
    We believe that exclusion of San Ildefonso Pueblo land will not 
result in extinction of the species. Current records do not document 
any nesting habitat on the Pueblo but recognize it as a migration 
corridor and potential area for dispersal. The Pueblo has committed to 
protecting and managing according to their tribal and cultural 
management plans and are in the process of creating an IRMP that 
includes management for threatened and endangered species. In short, 
the Pueblo has committed to greater conservation measures on their land 
than would be available through the designation of critical habitat. 
With these natural resource measures, we have concluded that this 
exclusion from critical habitat will not result in the extinction of 
the flycatcher. Accordingly, we have determined that the Pueblo lands 
of San Ildefonso should be excluded under subsection 4(b)(2) of the Act 
because the benefits of exclusion outweigh the benefits of inclusion 
and will not cause the extinction of the species.
Santa Clara Pueblo
    During the open comment period, we worked with Santa Clara Pueblo 
(Pueblo) to consolidate information on their past, present, and future 
voluntary measures, restoration projects, and management to conserve 
the southwestern willow flycatcher and its habitat on their lands. We 
have determined that the lands of this Pueblo, in the Upper Rio Grande 
Management Unit, will not be designated as critical habitat. As 
described in our section 4(b)(2) analysis below, we have reached this 
determination because the benefits of excluding their lands from the 
final critical habitat designation outweigh the benefits of designating 
their lands.
    Santa Clara Pueblo lies within the proposed designated critical 
habitat for the flycatcher in the Upper Rio Grande Management Unit. The 
Pueblo is located on the west bank of the Rio Grande approximately 48 
km (30 mi) north of the City of Santa Fe in northern New Mexico. The 
Pueblo encompasses more than 21,449 ha (53,000 ac) of diverse 
vegetative communities, including approximately 714 ha (1,764 ac) of 
Rio Grande woodland/shrubs (bosque). Approximately 10 km (6 mi) of the 
Rio Grande corridor is a heavily ``checkerboarded'' area with private 
non-Indian in-holdings now belonging to the City of Espanola, the 
result of non-Indian encroachment that was sanctioned by the Federal 
government in the 1920s and 1930s.
    The Rio Grande is an integral part of the Pueblo's history, 
culture, and continued preservation as a homeland. They view all of 
their natural resources, including the Rio Grande bosque, as important 
to the survival of the Santa Clara people. Many of the various 
vegetative communities within the Pueblo and the innumerable wildlife 
species they support have significant traditional and spiritual value 
to the tribal people. Because of this and because the Pueblo maintains 
the sovereign right to manage all the resources within their 
boundaries, the Tribal Council of Santa Clara Pueblo made a commitment 
in 2000, that was extended in 2001, to develop an Integrated Resource 
Management Plan (IRMP) that addresses multi-use, enhancement, and 
management of their natural resources. Progress is being made in 
completing the IRMP but it is not yet complete. The Pueblo has 
submitted a copy of the Tribal Council Resolution as documentation of 
their commitment to ensure that as part of the IRMP process they 
``consider traditional and long-standing uses of tribal lands and 
utilize appropriate land management protocols while ensuring that 
culturally and biologically sensitive areas, plants, animals, and other 
resources will be provided the highest levels of protection.'' (Santa 
Clara Pueblo Tribal Council Resolution No. 2001-23; July 18, 2001). The 
IRMP, in its current draft form, was not submitted during the open 
comment period because it is undergoing review from the Santa Clara 
Pueblo community (Santa Clara Pueblo, July 12, 2005). They believe it 
would be inappropriate not to follow the community's internal review 
system, which experienced delays due to staff changes. Nonetheless, the 
Pueblo

[[Page 60961]]

has already sought and received over $600,000 in funds to complete the 
IRMP and has contributed approximately 4,500 staff hours within the 
Pueblo toward development of the IRMP.
    Approximately 714 ha (1,764 ac) of Rio Grande bosque on Santa Clara 
Pueblo has become very susceptible to wildfire; changes in hydrology 
have encouraged the growth of vegetation that results in heavy fuel 
loads. The Pueblo had to contend with catastrophic wildfires just 
within the past decade. The ``Tuesday Fire,'' in the urban interface, 
burned approximately 61 ha (150 ac) of bosque in 1997; in 2004, the 
``Black Mesa'' fire burned additional bosque acres. Other fires that 
occurred in the area were: the ``Oso Complex'' in June 1998, the 
``Cerro Grande'' in May 2000, and bosque fires in the adjoining San 
Juan Pueblo. This susceptibility to wildfire has prompted Santa Clara 
Pueblo to undertake management activities along the bosque to protect 
the health and safety of the Tribal people. In conjunction with the 
comprehensive IRMP process, the Pueblo has undertaken projects to 
reduce the fire risk in the area.
    The main Pueblo village, the City of Espanola, and nearby non-
Indian communities are located close to the river and therefore the 
bosque acres on Santa Clara Pueblo, which are proposed designated 
critical habitat for the flycatcher, are considered by the Bureau of 
Indian Affairs (BIA) and the Pueblo to be Wildland-Urban Interface 
(WUI) for purposes of implementation of the Federal government's 
National Fire Plan. A key priority of the National Fire Plan is to 
reduce hazardous fuel loads in WUI areas in order to reduce the 
imminent danger to human life and property. However, the Pueblo 
recognizes the need for fuels reduction and habitat restoration to 
occur in small increments so as not to harm wildlife in the transition 
and has committed to this process (Santa Clara Pueblo, July 12, 2005).
    The Pueblo has implemented fuel reduction and restoration in their 
bosque since 2001 and they have projects in various planning stages for 
the future. In 2001, fuel reduction and restoration took place on 64 ha 
(159 ac). After that, the Pueblo submitted a request to the BIA for 
additional funds to work on treatment and restoration of and additional 
121 ha (298 ac). In addition, the Pueblo entered into an agreement with 
New Mexico Association of Conservation Districts and the East Rio 
Arriba and Water Conservation District for a two-year hazardous fuels 
treatment project which is in progress on 54 ha (133 ac). Finally, the 
Pueblo received approval from the U.S. Forest Service for an inter-
tribal Collaborative Forest Restoration Proposal to treat and restore 
another 23 ha (58 ac). As is evidenced here, Santa Clara Pueblo, for 
the past five years, has systematically planned and received funding to 
do WUI bosque management and habitat restoration along their bosque.
    The Pueblo and its consultants and the BIA have worked in close 
communication with the Service to address any impacts to the flycatcher 
and its habitat in connection with these projects (Service 2003). There 
have been informal meetings with Service staff and Pueblo staff that 
have resulted in a good working relationship. Another demonstration of 
this cooperative working relationship and the Pueblo's efforts for 
conservation of the flycatcher is that, in 2005, three Tribal members 
participated in training, held at the Service's Albuquerque Field 
Office, for conducting protocol surveys for the flycatcher. The Pueblo 
has also identified funding to conduct flycatcher surveys within their 
entire bosque for Spring of 2006.
    The Pueblo has pointed out that their commitments to manage the 
bosque are in keeping with the goals and techniques and guidelines for 
fire management and habitat restoration outlined in the Recovery Plan 
for the flycatcher (Santa Clara Pueblo, July 12, 2005). Santa Clara's 
commitment to protect the health, well-being, safety, and economy of 
their people is not isolated from the commitment to protect and restore 
the ecosystem with its wildlife species and habitat. They view the 
world holistically and their management and commitments will result in 
long-term benefits to the ecosystem upon which a diverse array of 
plants and wildlife depend, including the endangered southwestern 
willow flycatcher.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is that 
activities in and affecting such habitat require consultation under 
section 7 of the Endangered Species Act if a Federal action is 
involved. Such consultations ensure that adequate protection is 
provided to avoid destruction or adverse modification of critical 
habitat. The section 7 conferencing and consultations involving Santa 
Clara Pueblo for the flycatcher have been informal. Effects to the 
flycatcher from Pueblo projects have been insignificant and 
discountable with determinations of ``no effect'' to the flycatcher and 
its habitat (Santa Clara Pueblo, August 26, 2005). These determinations 
resulted from the lack of presence of the flycatcher.
    Given that lands of the Santa Clara Pueblo are managed in a way 
that provide benefits to the flycatcher, it is highly unlikely that 
projects would be considered that would result in a depreciable 
diminishment or long-term reduction of the capability of the habitat to 
provide for areas of migration and dispersal. To the contrary, 
activities occurring on these lands will provide benefits to the 
flycatcher by restoring, improving, and protecting its habitat. Thus we 
conclude that few regulatory benefits to the flycatcher would be gained 
from a designation of critical habitat on the Pueblo lands because, as 
described above, and as evidence by the consultation history, the 
Pueblo is already managing their lands for the benefit of the 
flycatcher and its habitat. Furthermore, based on the consultation 
history and the beneficial nature of the projects undertaken by the 
Pueblo, it would be highly unlikely that the consultation would result 
in a determination of adverse modification. Thus, as described in the 
``General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process'' section above, when the threshold for adverse 
modification is not reached, additional conservation recommendations 
could result out of a consultation, but such measures would be 
discretionary on the part of the Federal agency.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. Any information about the 
flycatcher and its habitat that reaches a wide audience, including 
other parties engaged in conservation activities, would be considered 
valuable. However, the Pueblo is already working with the Service to 
understand the habitat needs of the species and some of their 
biologists have participated in flycatcher survey training classes. 
Further, the Pueblo lands were included in the proposed designation, 
which itself has reached a wide audience, and has thus provided 
information to the broader public about the conservation value of this 
area. Thus, the educational benefits that might follow critical habitat 
designation, such as providing information to the BIA or the Pueblo on 
areas that are important for the long-term survival and conservation of 
the species, have already been provided by

[[Page 60962]]

proposing the area as critical habitat. For these reasons, then, we 
believe that designation of critical habitat would have few, if any, 
additional benefits beyond those that will result from continued 
consultation for the presence of the species.
(2) Benefits of Exclusion
    The benefits of excluding Santa Clara Pueblo from designated 
critical habitat are significant. The proposed critical habitat 
designation included approximately 714 ha (1,764 ac) of Rio Grande 
woodland/shrubs (bosque) within the Pueblo boundaries. We believe that 
the significant benefits that would be realized by forgoing the 
designation of critical habitat on this area include: (1) The 
furtherance of our Federal Trust obligations and our deference to the 
Pueblo to develop and implement Tribal conservation and natural 
resource management plans for their lands and resources within the Rio 
Grande ecosystem, which includes the flycatcher and its habitat; (2) 
the continuance and strengthening of our effective working 
relationships with the Pueblo to promote the conservation of the 
flycatcher and its habitat, including future surveys; (3) the allowance 
for management and restoration in a WUI area that focuses on fire 
prevention, and human health and safety, and yet addresses conservation 
for the flycatcher; and (4) the provision of conservation benefits to 
the Rio Grande ecosystem and the flycatcher and its habitat that might 
not otherwise occur.
    As discussed above, we met with Santa Clara Pueblo to discuss how 
they might be affected by the designation of critical habitat. The 
meeting with the Pueblo was conducted in accordance with Secretarial 
Order 3206; the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59 
FR 22951); Executive Order 13175; and the relevant provision of the 
Departmental Manual of the Department of the Interior (512 DM 2). We 
believe that the Pueblos should be the governmental entities that 
manage and promote the conservation of the flycatcher on their lands. 
During our meetings with the Pueblo, we recognized and endorsed these 
resource management activities, including those relating to the Rio 
Grande ecosystem. Much of our discussions centered on providing 
technical advice/assistance to the Pueblo to develop, continue, or 
expand natural resource management such that the designation of 
critical habitat for the flycatcher would provide few if any benefits.
    We have an effective working relationship with Santa Clara Pueblo, 
which was established and has evolved from informal consultations. As 
part of this cooperative working relationship, we provided technical 
advice/assistance to the Pueblo, in respect to project activity, to 
evaluate habitat for primary constituent elements and to develop 
measures to conserve the flycatcher and its habitat on their lands. 
Another demonstrable example of the trust and relationship that the 
Service has with the Pueblo is the participation by some of their 
staff. In 2005, in Service sponsored training for flycatcher surveys.
    As part of maintaining a cooperative working relationship with the 
Pueblo, conservation benefits, including habitat restoration and 
enhancement have been possible. During our discussions with the Pueblo, 
and reiterated in their written comments, (Santa Clara Pueblo, July 12, 
2005), we were informed that critical habitat would be viewed as an 
intrusion on their sovereign abilities to manage natural resources in 
accordance with their own policies, customs, and laws. To this end, we 
found that the Pueblo would prefer to work with us on a Government-to-
Government basis. For these reasons, we believe that our working 
relationship with the Pueblo would be maintained if they are excluded 
from the designation of critical habitat for the flycatcher. We view 
this as a substantial benefit.
    As mentioned above, the Pueblo is an important land manager in 
respect to its land being a Wildland-Urban Interface. Its bosque needs 
to be managed and restored with the focus of fire prevention and human 
health and safety. The restoration and management information submitted 
by the Pueblo documents their commitment to having meaningful 
collaborative and cooperative work for the flycatcher and its habitat 
continue within their lands as they address the need to manage for 
human protection (Santa Clara Pueblo, July 12, 2005). These commitments 
demonstrate the willingness of the Pueblo to work cooperatively with us 
toward conservation efforts that will benefit the flycatcher. The 
Pueblo has committed to several ongoing or future management, 
restoration, enhancement, and survey activities and we believe that the 
results of these activities will promote long-term protection and 
conserve the flycatcher and its habitat within the Pueblo lands (Santa 
Clara Pueblo, July 12, 2005). The benefits of excluding this area from 
critical habitat will encourage the continued cooperation and 
development of data-sharing and management plans. If this area is 
designated as critical habitat, we believe it is unlikely that sharing 
of information would occur.
    Educational benefits will be provided to the Pueblo lands if they 
are excluded from the designation, because their past and ongoing 
restoration projects, with management goals, provide for conservation 
benefits above any that would be provided by designating critical 
habitat. For example, the educational aspects are likely greater for 
this area if they are not included in the designation because the 
Pueblo will continue to work cooperatively with the Service to restore 
and enhance their Rio Grande floodplain with habitat that will 
contribute to the recovery of the species. Surveys that are planned for 
2006 for the presence or absence of flycatchers in their bosque will 
add to recovery information and the participation by tribal biologist 
in the survey process adds to educational benefits and conservation of 
the species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, the benefits of including the Pueblo in critical 
habitat are small, and are limited to minor educational benefits. The 
benefits of excluding these areas from being designated as critical 
habitat for the flycatcher are more significant, and include 
encouraging the continued development and implementation of special 
management measures such as surveys, enhancement, and restoration 
activities that are planned for the future or are currently being 
implemented. These activities and projects will allow the Pueblo to 
manage their natural resources to benefit the Upper Rio Grande 
management Unit and the flycatcher, without the perception of Federal 
Government intrusion. This philosophy is also consistent with our 
published policies on Native American natural resource management. The 
exclusion of this area will likely also provide additional benefits to 
the species that would not otherwise be available to encourage and 
maintain cooperative working relationships. We find that the benefits 
of excluding this area from critical habitat designation outweigh the 
benefits of including this area.
    We believe that exclusion of the Pueblo land will not result in 
extinction of the species. The Pueblo has committed to protecting and 
managing according to their tribal and cultural management plans and 
natural resource management objectives. In short, the Pueblo has 
committed to greater conservation measures on their land than would be 
available through the

[[Page 60963]]

designation of critical habitat. With these natural resource measures, 
we have concluded that this exclusion from critical habitat will not 
result in the extinction of the flycatcher. Accordingly, we have 
determined that the Pueblo lands of Santa Clara should be excluded 
under subsection 4(b)(2) of the Act because the benefits of exclusion 
outweigh the benefits of inclusion and will not cause the extinction of 
the species.
    As discussed in the ``Relationship of Critical Habitat to Tribal 
Lands'' section of the Proposed Rule, in accordance with the 
Secretarial Order 3206, ``American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act'' (June 5, 
1997); the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR 
22951); Executive Order 13175; and the relevant provision of the 
Departmental Manual of the Department of the Interior (512 DM 2), we 
have found that fish, wildlife, and other natural resources on tribal 
lands are better managed under tribal authorities, policies, and 
programs than through Federal regulation wherever possible and 
practicable. Based on our experience, in many cases, designation of 
tribal lands as critical habitat provides very little additional 
benefit to threatened and endangered species. Conversely, such 
designation is often viewed by tribes as an unwanted intrusion into 
tribal self governance, thus compromising the government-to-government 
relationship essential to achieving our mutual goals of managing for 
healthy ecosystems upon which the viability of threatened and 
endangered species populations depend. In making our final decision 
with regard to tribal lands, we considered several factors including 
our relationship with the Tribe or Pueblo and whether conservation 
measures are in place for the southwestern willow flycatcher on their 
lands.
San Juan Pueblo (Ohkay Owingue)
    During the open comment period, we worked with San Juan Pueblo 
(Pueblo) to consolidate information on their past, present, and future 
voluntary measures, restoration projects, and management to conserve 
the southwestern willow flycatcher and its habitat on their lands. We 
have determined that the lands of this Pueblo, in the Upper Rio Grande 
Management Unit, will not be designated as critical habitat. As 
described below, we have reached this determination because the 
benefits of excluding their lands from the final critical habitat 
designation outweigh the benefits of designating their lands.
    San Juan Pueblo, is located just north of Espanola in Rio Arriba 
County, New Mexico, and adjoins the lands of Santa Clara Pueblo. The 
Pueblo includes the southern or downstream end of the Velarde reach of 
the Rio Grande, and comprises the largest contiguous area of generally 
intact bosque, as well as the largest riparian area under the control 
of a single landowner, within the Velarde reach. A total of about 17 km 
(10.3 mi) are located within the Pueblo, (USGS 1:24,000 map, 7.5 minute 
series, San Juan, NM), and over 445 ha (1100 ac) of riparian woodland, 
or bosque, are still extant within the Pueblo boundaries.
    In June of 1993, the flycatcher was documented on the west side of 
the Rio Grande north of the NM 74 Bridge as a biological assessment was 
being prepared for the proposed San Juan Bridge project. The project 
proposed to replace an existing bridge and two-lane road section with a 
newly located bridge and two-lane road with shoulders. Subsequent 
evaluations indicated that a viable population of nesting flycatchers 
was using the area.
    The presence of the nesting flycatcher prompted the Pueblo to 
restore the bosque habitat and associated wetlands for the flycatcher. 
Habitat within the Pueblo is much degraded relative to historic 
conditions for two main reasons: (1) River channelization that has 
caused floodplain desiccation, cessation of overbank flooding, and 
disruption of geomorphological processes; and (2) intensive invasion by 
non-native trees, primarily Russian olives. The increasing frequency 
and severity of fires in the Rio Grande bosque, accompanied by changes 
in vegetation and the water regime, underscores the urgency of 
restoration needs.
    The San Juan Pueblo immediately began restoration/conservation 
projects to benefit the flycatcher following the bridge project in 
1994. Two acres of native riparian vegetation were planted on the 
reclaimed old roadway; 0.1 ha (0.22 ac) of riparian vegetation were 
planted adjacent to the new bridge; 1 acre of riparian woodland was 
restored adjacent to the project; and, wetland restoration, which 
included open water and saturated soils, was developed at three sites 
encompassing 0.19 ha (0.46 ac), 0.14 ha (0.34 ac), and 0.06 ha (0.14 
ac). Since 1999 the Pueblo has initiated or completed a variety of 
restoration/conservation projects, including further wetland creation 
and expansion, flycatcher habitat enhancement with vegetation and open 
water, and removal of non-native vegetation with replacement of native 
vegetation. These projects are funded through various programs of the 
Environmental Protection Agency, Wildland Urban Interface/Collaborative 
Forest Restoration Program, Endangered Species Act Collaborative 
Program, and the State of New Mexico; they affect 301 ha (744 ac) of 
riparian habitat on the Pueblo with direct and indirect benefits to the 
flycatcher. The project implementations include conservation, 
monitoring, and management for the flycatcher into the future. These 
efforts contribute to the long term goals of recovery for the 
flycatcher. In addition to the habitat work, the Pueblo supports 
flycatcher surveys and nest monitoring on the Pueblo lands.
    The long-term goal of riparian management on San Juan Pueblo is to 
make significant additions of wetland areas for breeding flycatchers, 
as well as implement innovative restoration techniques, decrease fire 
hazards by restoring native vegetation, share information with other 
restoration practitioners, utilize restoration projects in the 
education of the tribal community and surrounding community, and 
provide a working and training environment for the people of the 
Pueblo. In 2004, the Pueblo sponsored a multi-agency/organization 
riparian restoration conference on their lands. Their restoration 
efforts and flycatcher conservation were highlighted at the conference. 
As such, the Service and its partners gained valuable information about 
restoring flycatcher habitat and management techniques that can be 
applied to other riparian areas.
    Based on their traditional beliefs and ties to the bosque area, the 
Pueblo continues to protect, conserve, and restore the riparian habitat 
and the species that utilize the habitat. As is demonstrated through 
their projects, the Pueblo has invested a significant amount of ongoing 
time and effort to address the needs and recovery of the flycatcher. In 
addition, based on the long term goals of restoring additional wetland 
and native habitat, the Pueblo has shown that it is managing its 
resources to meet its traditional and cultural needs, while addressing 
the needs of the flycatcher. Currently, the San Juan Pueblo 
Environmental Affairs department employs nine Tribal members who work 
on holistic habitat restoration and management, which includes 
threatened and endangered species and their habitat.
(1) Benefits of Inclusion
    There are few benefits of including San Juan Pueblo in the critical 
habitat designation above those that will be

[[Page 60964]]

achieved through the implementation of the Pueblo's voluntary 
conservation measures, restoration projects, and management. The 
principal benefit of any designated critical habitat is that activities 
affecting such habitat requires consultation under section 7 of the 
Endangered Species Act if a Federal action is involved. Such 
consultation would ensure that adequate protection is provided to avoid 
destruction or adverse modification of critical habitat. However, if 
adequate protection can be provided in another manner, such as those 
provided by the Pueblo, the benefits of including any area in critical 
habitat are insignificant.
    Since 1993, the section 7 consultations involving San Juan Pueblo 
for the flycatcher have been informal. Effects to the flycatcher from 
these projects have been insignificant and discountable because 
conservation measures have focused on restoration and management for 
the flycatcher and its habitat. As stated in the environmental 
assessment, the primary conservation value of the proposed critical 
habitat segments is to sustain existing populations. The threshold for 
reaching destruction or adverse modification on lands of the San Juan 
Pueblo would likely require a reduction in the capability of the 
habitat to sustain existing populations. Given that these lands are 
managed for the benefit of the flycatcher, it is highly unlikely that 
projects would be considered that would result in a depreciable 
diminishment or long-term reduction of the capability of the habitat to 
sustain existing populations. To the contrary, activities occurring on 
these lands will provide benefits to the flycatcher by restoring, 
improving, and protecting its habitat.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. Any information about the 
flycatcher and its habitat that reaches a wide audience, including 
other parties engaged in conservation activities, would be considered 
valuable. However, the Pueblo is already working with the Service to 
address the habitat needs of the species. Further, the Pueblo lands 
were included in the proposed designation, which itself has reached a 
wide audience, and has thus provided information to the broader public 
about the conservation value of this area. Thus, the educational 
benefits that might follow critical habitat designation, such as 
providing information to the BIA or Pueblos on areas that are important 
for the long-term survival and conservation of the species, have 
already been provided by proposing these areas as critical habitat. For 
these reasons, then, we believe that designation of critical habitat 
would have few, if any, additional benefits beyond those that will 
result from continued consultation for the presence of the species.
(2) Benefits of Exclusion
    The benefits of excluding the Pueblo from designated critical 
habitat are significant. The proposed critical habitat designation 
included 10.3 mi (16.5 km) of river and over 445 ha (1100 ac) of 
riparian woodland, or bosque, within the Pueblo boundaries. We believe 
that the significant benefits that would be realized by forgoing the 
designation of critical habitat on this area include: (1) The 
furtherance of our Federal Trust obligations and our deference to the 
Pueblo to develop and implement Tribal conservation and natural 
resource management plans for their lands and resources within the Rio 
Grande ecosystem, which includes the flycatcher and its habitat; (2) 
the continuance and strengthening of our effective working 
relationships with the Pueblo to promote the conservation of the 
flycatcher and its habitat; (3) the allowance for continued meaningful 
collaboration and cooperation in surveys and nest monitoring as we work 
towards recovery of the species; and (4) the provision of conservation 
benefits to the Rio Grande ecosystem and the flycatcher and its habitat 
that might not otherwise occur.
    Educational benefits will be provided to the Pueblo lands if they 
are excluded from the designation, because their past and ongoing 
restoration projects, with management goals, provide for conservation 
benefits above any that would provided by designating critical habitat. 
For example, the educational aspects are likely greater for this area 
if they are not included in the designation because the Pueblo will 
continue to work cooperatively toward the conservation of the 
flycatcher, which will include continuing, initiating, and completing 
flycatcher surveys/research and habitat restoration. As mentioned 
above, the Pueblo has already actively contributed to the education of 
multiple individuals about the conservations efforts and needs of the 
flycatcher through their riparian restoration conference.
    As discussed above, we met with San Juan Pueblo to discuss how they 
might be affected by the designation of critical habitat. We have an 
effective working relationship with the Pueblo, which was established 
and has evolved from the earlier informal consultations. As part of our 
cooperative working relationship, we provided technical advice/
assistance to the Pueblo to develop measures to conserve the flycatcher 
and its habitat on their lands. San Juan Pueblo's past, present, and 
on-going voluntary conservation measures in connection with their 
Environmental Affairs Department, Federal/State habitat restoration 
grants, and species conservation grants were summarized and submitted 
to the Service (San Juan Pueblo, July 18/August 18, 2005). These 
actions were conducted in accordance with Secretarial Order 3206; the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951); 
Executive Order 13175; and the relevant provision of the Departmental 
Manual of the Department of the Interior (512 DM 2). We believe that 
these Pueblos should be the governmental entities to manage and promote 
the conservation of the flycatcher on their lands. During our meetings 
with each of these Pueblos, we recognized and endorsed these resource 
management activities, including those relating to the Rio Grande 
ecosystem. Much of our discussions centered on providing technical 
advice/assistance to the Pueblo to develop, continue, or expand natural 
resource management such that the designation of critical habitat for 
the flycatcher would provide few if any benefits.
    We find that other conservation benefits are provided to the Upper 
Rio Grande Management Unit and the flycatcher and its habitat by 
excluding the Pueblo from the designation. For example, as part of 
maintaining a cooperative working relationship with the Pueblo, 
conservation benefits, including flycatcher surveys, nest and habitat 
monitoring, and habitat restoration and enhancement have been possible. 
During our discussions with the Pueblo, and reiterated in their written 
comments, (San Juan Pueblo, July 18/August 18, 2005), we were informed 
that critical habitat would be viewed as an intrusion on their 
sovereign abilities to manage natural resources in accordance with 
their own policies, customs, and laws. To this end, we found that the 
Pueblo would prefer to work with us on a Government-to-Government 
basis. For these reasons, we believe that our working relationship with 
the Pueblo would be maintained if they are excluded from the 
designation

[[Page 60965]]

of critical habitat for the flycatcher. We view this as a substantial 
benefit.
    Proactive voluntary conservation efforts will promote the recovery 
of the flycatcher. As mentioned above, the Pueblo is an important land 
manager in the Upper Rio Grande management Unit. The consultation 
history, surveys, and conservation, restoration and management 
information submitted by the Pueblo documents that meaningful 
collaborative and cooperative work for the flycatcher and its habitat 
will continue within their lands. These commitments demonstrate the 
willingness of the Pueblo to work cooperatively with us toward 
conservation efforts that will benefit the flycatcher. The Pueblo has 
committed to several ongoing or future management, restoration, 
enhancement, and survey activities that may not occur with critical 
habitat designation. Therefore, we believe that the results of these 
activities will promote long-term protection and conserve the 
flycatcher and its habitat within the Pueblo lands. The benefits of 
excluding this area from critical habitat will encourage the continued 
cooperation and development of data-sharing and management plans. If 
this area is designated as critical habitat, we believe it is unlikely 
that sharing of information would occur.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, the benefits of including the Pueblo in critical 
habitat are small, and are limited to insignificant educational 
benefits. The benefits of excluding these areas from designation as 
critical habitat for the flycatcher are significant, and include 
encouraging the continued development and implementation of special 
management measures such as monitoring, surveys, enhancement, and 
restoration activities that the Pueblo plans for the future or is 
currently implementing. These activities and projects will allow the 
Pueblo to manage their natural resources to benefit the Upper Rio 
Grande management Unit and the flycatcher, without the perception of 
Federal Government intrusion. This philosophy is also consistent with 
our published policies on Native American natural resource management. 
The exclusion of this area will likely also provide additional benefits 
to the species that would not otherwise be available to encourage and 
maintain cooperative working relationships. We find that the benefits 
of excluding this area from critical habitat designation outweigh the 
benefits of including this area.
    We have determined that exclusion of the Pueblo land will not 
result in extinction of the species. The Pueblo is committed to 
protecting and managing Pueblo lands and species found on those lands 
according to their tribal and cultural management plans and natural 
resource management objectives, which provide conservation benefits for 
the species and its habitat. In short, the Pueblo is committed to 
greater conservation measures on their land than would be available 
through the designation of critical habitat. Accordingly, we have 
determined that the Pueblo lands of San Juan should be excluded under 
subsection 4(b)(2) of the Act because the benefits of exclusion 
outweigh the benefits of inclusion and will not cause the extinction of 
the species and we are excluding the Pueblo lands of San Juan from this 
critical habitat designation.

Relationship of Critical Habitat to Partnerships and Conservation 
Plans/Easements on Private Lands--Exclusions Under Section 4(b)(2) of 
the Act

Verde Management Unit, AZ

Salt River Project Partnership at Horseshoe Lake
    As discussed in the ``Summary of Changes from the Proposed Rule'' 
section above, we have determined that proposed critical habitat in the 
conservation space of Horseshoe Lake on the Verde River in Maricopa 
County, AZ will not be designated as critical habitat in this final 
rule due to our partnership and the ongoing HCP negotiations with Salt 
River Project (SRP). Salt River Project operates Horseshoe Dam and the 
Tonto National Forest manages the ground. We have reached this 
determination because we believe the benefits of excluding this segment 
from the final critical habitat designation outweigh the benefits of 
designating the lake as critical habitat.
    Similar to Roosevelt Dam, flycatcher habitat in Horseshoe Lake is 
created as a result of the storage and release of water behind and from 
Horseshoe Dam, which exposes fine sediments across a broad/flat 
floodplain. These conditions maintained with Verde River inflow 
generates, through a vegetative successional process and timeframe, 
abundant riparian habitat for the flycatcher. Periodic flooding or 
inundation of the habitat can result in temporary losses or 
unavailability of habitat and incidental take of flycatchers due to 
operations. Over time though, water is needed to flow over the 
conservation space to recharge groundwater, prevent dessication, and 
re-establish vegetation. Therefore, in the long-term through this 
cyclical and successional process, dam operations are expected to help 
support the existence of flycatcher habitat within Horseshoe Lake. 
Flycatcher habitat and territories at Horseshoe Lake have improved over 
the last three years, growing from 6 territories in 2003, to 11 in 
2004, and now approximately 27 territories in 2005 (R. Ockenfels, AGFD, 
e-mail).
    Salt River Project and the Service have an ongoing partnership of 
working toward conserving federally-listed species that has existed for 
nearly two decades. As examples of our partnership that extends to a 
variety of threatened and endangered species, SRP has voluntarily 
worked with the Service toward bald eagle recovery since the 1980s. 
They have participated in the inter-agency Southwestern Bald Eagle 
Management Committee, and provided annual helicopter flights to assess 
annual eagle productivity, conduct winter counts, detect new breeding 
areas, and access remote sites to band eaglets. In some instances they 
have also volunteered helicopter time to rescue bald eagles in life-
threatening situations or take a rehabilitated eagle back to its nest 
area quickly. SRP has further donated funds to hire Arizona Bald Eagle 
Nestwatchers in order to protect bald eagles at nest sites. SRP has 
also produced a variety of bald eagle educational materials (brochures, 
posters, etc.) and atlases to track nest and territory locations. 
Additionally, SRP has supported California condor recovery by providing 
helicopter transportation of birds and biologists to remote locations. 
SRP has also worked with the Service's law enforcement and other local 
power companies toward improving reporting of bird electrocutions, 
identifying locations of mortality, and retrofitting transmission poles 
to protect birds.
    Salt River Project has also been active in developing HCPs for 
southwestern willow flycatchers. Together SRP and the Service developed 
a comprehensive plan that allows for the protection and persistence of 
southwestern willow flycatchers at Roosevelt Lake, and acquisition of 
properties to mitigate effects of water storage (see Roosevelt HCP 
portion of this Exclusion section). Bald eagles and yellow-billed 
cuckoos were also included in this HCP.
    At Horseshoe Lake, SRP has committed resources to manage the lake 
not only for water storage, but also to retain habitat for southwestern 
willow flycatchers. Unlike some other reservoirs, because of the 
ability to store water downstream in Bartlett Lake, SRP

[[Page 60966]]

has more flexibility with how water is stored and released. Since the 
discovery of southwestern willow flycatchers at Horseshoe Lake, SRP has 
engaged in flycatcher and habitat surveys and has worked with the 
Service to determine ways in which the reservoir can be managed to 
balance the needs of the flycatcher and its purpose for water storage. 
This has been an ongoing two-year effort that will be formalized in a 
HCP, resulting in improved management of the dam to ensure long-term 
southwestern willow flycatcher habitat persistence, combined with off-
site habitat acquisition. We published our notice of intent to conduct 
NEPA, prepare an Environmental Impact Statement, and hold scoping 
meetings related to the Horseshoe/Bartlett HCP in June 2003 (68 FR 
36829). Since scoping, the Service and SRP continue to develop and 
refine plans that solidify development, maintenance, and protection of 
flycatcher habitat at Horseshoe Lake and conservation measures for 
other species involved in the Plan. The Horseshoe/Bartlett HCP, once 
completed, will result in conservation for bald eagles, yellow-billed 
cuckoos, and federally-listed and non-listed native fish. Collectively, 
our partnership in all of these areas has resulted in benefits that 
have contributed to immediate and long-term benefits to the 
conservation and recovery of protected species.
(1) Benefits of Inclusion
    SRP has determined that any incidental take as a result of dam 
operations is appropriately authorized under section 10(a)(1)(B) of the 
Act (i.e., Habitat Conservation Plan). Therefore, the eventual 
finalization of a HCP and issuance of this permit will commit an 
applicant (i.e., SRP) to conduct southwestern willow flycatcher 
conservation activities, and minimize and/or mitigate to the maximum 
extent practicable for any incidental take. In order to issue this 
permit, the Service would have to conclude that the HCP would not 
jeopardize the southwestern willow flycatcher. Because southwestern 
willow flycatchers already exist at Horseshoe Lake, the scope of our 
analysis would include flycatcher habitat.
    There is a Federal nexus for Tonto National Forest activities at 
Horseshoe Lake, because once the lake recedes, the Forest Service 
manages the dry lake bottom. Therefore, if the Forest carried out, 
funded, or permitted any activities that affected critical habitat at 
Horseshoe Lake, it would require consultation under section 7 of the 
Act. Forest Service management of activities that can reduce quality of 
flycatcher habitat such as cattle grazing and recreation at Horseshoe 
Lake helped foster habitat development since the lake receded due to 
drought in the mid-1990s, and since southwestern willow flycatcher 
territories were discovered at Horseshoe in 2002, no Forest Service 
projects have been proposed that have adversely affected southwestern 
willow flycatchers or their habitat. Because of this lake's importance 
for water storage and because water periodically floods the entire 
area, there is no reason to anticipate that the lake bottom will be 
anything but open space. Due to the periodic water flow, it limits the 
extent this lake bottom can be managed for any other activities. 
Because southwestern willow flycatchers currently occupy Horseshoe 
Lake, section 7 consultation and analysis of effects to habitat already 
occurs, leaving few additional benefits to the designation of critical 
habitat.
    Designation of critical habitat also provides educational benefits, 
including informing project proponents (in this case SRP and the Forest 
Service) of areas that are important to the conservation of listed 
species and providing important information on those habitats and their 
primary constituent elements. Because SRP and the Forest Service are 
the water and land managers, they have conducted and contracted 
surveys, nest monitoring, and vegetation monitoring for the 
southwestern willow flycatcher at Horseshoe Lake. Therefore, the 
potential designation of critical habitat at Horseshoe Lake would not 
provide this educational benefit because both SRP and the Forest 
Service already know the birds are present and are studying its habitat 
and breeding locations. SRP and the Forest are also already aware that 
Horseshoe Lake has a high concentration of flycatchers, and are 
important to conservation goals on the Verde River Management Unit. In 
addition, this area was included in our proposed designation and is 
discussed in this final designation as an area essential to the 
conservation of the flycatcher.
(2) Benefits of Exclusion
    The benefits of excluding lands within Horseshoe Lake area from 
critical habitat designation include recognizing the value of 
conservation benefits associated with a partnership and a developing 
HCP; encouraging actions that benefit multiple species; encouraging 
local participation in development of new HCPs; and facilitating the 
cooperative activities provided by the Service to groups such as SRP. 
Additionally, our existing partnership and the integration of Federal 
land management will generate a consistent management approach at 
Horseshoe Lake.
    The partnership and cohesive management at Horseshoe Lake will 
maintain habitat for southwestern willow flycatchers for the long-term. 
This partnership will culminate in development, finalization, and 
implementation of an HCP that will provide long-term conservation 
benefits. In addition to maintaining habitat for the long-term at 
Horseshoe Lake, this partnership and subsequent HCP will include the 
development of status and distribution information needed to guide 
conservation efforts and assist in species conservation outside the HCP 
planning area, and the creation of innovative solutions to conserve 
species that can be applied wherever similar needs exist, irrespective 
of land ownership. The partnership with SRP also facilitates other 
cooperative activities with other similarly situated industry, 
communities, and landowners. Continued cooperative relations with SRP 
and their stakeholders (i.e., City of Phoenix) are expected to 
influence other future partners and lead to greater conservation than 
would be achieved through multiple section 7 consultations.
    Non-Federal landowners or dam operators such as SRP are motivated 
to work with the Service collaboratively to develop voluntary HCPs 
because of the regulatory certainty provided by an incidental take 
permit under section 10(a)(1)(B) of the Act with the No Surprises 
Assurances. This collaboration often provides greater conservation 
benefits than could be achieved through strictly regulatory approaches, 
such as critical habitat designation. The conservation benefits 
resulting from this collaborative approach are built upon a foundation 
of mutual trust and understanding. It takes considerable time and 
effort to establish this foundation of mutual trust and understanding 
which is one reason it often takes several years to develop a 
successful HCP. Already, the Horseshoe/Bartlett HCP development process 
has exceeded two years. Excluding this area from critical habitat would 
help promote and honor that trust by providing certainty for permittees 
that once appropriate conservation measures have been agreed to that 
additional consultation will not be necessary.
    In discussions with the Service, SRP and their stakeholders have 
indicated they view critical habitat designation at Horseshoe Lake as 
unwarranted, and undermines the regulatory certainty that

[[Page 60967]]

would be provided by their expected incidental take permit and the No 
Surprises assurances. There is a concern by SRP and stakeholders that 
designation of critical habitat at Horseshoe Lake has the potential to 
threaten the storage and delivery of water to the greater Phoenix 
metropolitan area (described in the Economic Analysis). Should this 
ever come to pass, the results could be significant, however we do not 
believe that scenario is reasonably foreseeable. Having applicant's 
understand the Service's commitment will encourage continued 
partnerships with these permittees that could result in additional 
conservation plans or additional lands enrolled in HCPs. By excluding 
areas where our partnerships have been established following years of 
collaborative efforts that has resulted, and will continue to result in 
habitat protection for the flycatcher, preserves these partnerships and 
promote more effective conservation actions in the future.
    A benefit of excluding Horseshoe Lake from critical habitat 
designation includes relieving additional regulatory burden and costs 
associated with the preparation of portions of section 7 documents 
related to critical habitat. While the cost of adding these additional 
sections to assessments and consultations to the Service and the Forest 
Service is relatively minor, there could be delays which can generate 
real costs to some project proponents. Since critical habitat is only 
proposed for occupied areas already subject to section 7 consultation 
and a jeopardy analysis, it is anticipated this reduction would be 
minimal.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, we find that the benefits of designating critical 
habitat for the southwestern willow flycatcher at Horseshoe Lake are 
small in comparison to the benefits of exclusion. In making this 
finding, we have weighed the benefits of including Horseshoe Lake as 
critical habitat, and compared them to the benefits of these lands 
without critical habitat, but with management based on our existing 
partnership (with a future HCP) and management by the Forest Service. 
Excluding Horseshoe Lake would reduce some additional administrative 
effort and cost during the consultation process pursuant to section 7 
of the Act. Excluding Horseshoe Lake would continue to help foster 
development of future partnerships and HCPs and strengthen our 
relationship with permittees and stakeholders. Because there is no 
Federal nexus for Horseshoe Dam operations, critical habitat, in and of 
itself, provides little benefit to Horseshoe Lake flycatcher habitat 
from Horseshoe Dam operations. Our 4(b)(8) determination in this final 
rule indicated that we did not believe dam operations, like Roosevelt 
Dam, would result in adverse modification. Horseshoe Dam operations, 
similar to Roosevelt Dam, will continue to foster the maintenance, 
development, and necessary recycling of habitat for the flycatcher in 
the long-term due to the dynamic nature of water storage and delivery. 
To date, Forest Service management has fostered the development, 
presence, and protection of flycatcher habitat. Because the lake bottom 
is intended for water storage, we believe there is virtually no risk of 
development or extensive land-use by the Forest Service that would be 
expected to result in adverse modification. Excluding Horseshoe Lake 
eliminates the concern of permittees and stakeholders of the possible 
risk to water storage and delivery to the greater Phoenix metropolitan 
area. This subsequently eliminates any uncertain risk of significant 
economic costs due to loss of water storage capabilities.
    We have, therefore, concluded that the current partnership and 
management established with SRP for flycatcher habitat, existing Forest 
Service management fostering flycatcher habitat, and conservation 
commitment to flycatcher habitat, outweigh those benefits that would 
result from the area being included in the designation. We have 
therefore excluded these lands from the final critical habitat 
designation pursuant to section 4(b)(2) of the Act.
    We also find that the exclusion of Horseshoe Lake will not lead to 
the extinction of the species, nor hinder its recovery. The periodic 
fluctuation in Horseshoe Dam operation, the maintenance of the dry lake 
bottom as open-space, and continued appropriate Forest Service 
management will ensure the long-term persistence and protection of 
flycatcher habitat at Horseshoe Lake.

San Luis Valley Management Unit, CO

San Luis Valley Partnership and Regional Habitat Conservation Plan
    As discussed in the ``Summary of Changes from the Proposed Rule'' 
section above, we have determined that all proposed critical habitat in 
the San Luis Management Unit, CO (Rio Grande and Conejos River), will 
not be designated as critical habitat in this final rule due to our 
past and future conservation partnerships within the San Luis Valley, 
as discussed below. We have reached this determination because we 
believe the benefits of excluding this unit from the final critical 
habitat designation outweigh the benefits of designating the unit as 
critical habitat.
    A partnership has been formed to develop a HCP in the San Luis 
Valley of Colorado. The State of Colorado received a $380,000 HCP 
Section 6 Planning Grant on behalf of the Rio Grande Water Conservation 
District in 2004 to develop the HCP for five counties, two cities, the 
State of Colorado, and 14 other smaller communities. In September 2005 
the State received another $120,000 Section 6 grant to draft NEPA 
documents and finalize the HCP. A preliminary draft of the San Luis 
Valley Regional HCP has been submitted to the Service for review. The 
HCP as proposed would cover nearly 809,300 ha (2 million ac) and 241 km 
(150 mi) of habitat for the southwestern willow flycatcher, bald eagle, 
and yellow-billed cuckoo. The acreage covered by the HCP encompasses 
the entire Colorado portion of the San Luis Valley Management Unit, as 
described in the Southwestern Willow Flycatcher Final Recovery Plan, 
and extends well beyond the two stream segments in the Rio Grande and 
Conejos Rivers that we proposed as critical habitat.
    The San Luis Valley has a strong tradition of locally supporting 
issues that provide for long-term conservation of natural resources. 
For instance, entities within the Valley fought a strong effort on two 
occasions by governmental entities from larger cities (Colorado Springs 
and Aurora, CO) to the north to withdraw water from the Valley's 
underground aquifer and have it pumped to the larger cities. A 
subsequent result of this effort was the expansion of the Service's 
National Wildlife refuge lands in the Valley (now referred to as the 
Baca Refuge under the administration of the Alamosa-Monte Vista Refuge) 
and expansion of the adjacent Great Sand Dunes National Park and 
Preserve, actions supported by the local community. These efforts have 
facilitated strong, meaningful, and enduring conservation partnerships 
with the Service.
    The Valley has other strong conservation efforts that are locally 
driven: such as the Rio Grande Headwaters Restoration Project, Alamosa 
River Restoration Project, Colorado Wetlands Initiative--San Luis 
Valley Focus Area Group, Rio Grande Natural Area, and Saguache Creek 
Corridor Project. All these efforts, described in further detail below 
to demonstrate the history of conservation

[[Page 60968]]

efforts in the San Luis Valley, are within the HCP planning area and 
will provide conservation benefits to the southwestern willow 
flycatcher, bald eagle, and yellow-billed cuckoo, as well as other 
wildlife within riparian and wetland communities.
    The Rio Grande Headwaters Restoration Project objective is to 
implement a master restoration plan for approximately 64 km (40 mi) of 
the upper Rio Grande. This project presents a plan to enhance the 
adequacy of the Rio Grande to fulfill historical function such as 
maintenance of riparian habitat and channel capacity, as well as 
meeting Rio Grande Compact commitments. The Alamosa River Restoration 
Project has $5 million in funds to restore and enhance the Alamosa 
River. This project's efforts include stream bank stabilization, 
boulder placement, vegetation plantings, and fencing of the riparian 
area to restore riparian function, The Colorado Wetlands Initiative--
San Luis Valley Focus Area Group is a coalition of conservation 
organizations, private landowners, and State and Federal agencies that 
have contributed to several conservation projects that help protect 
southwestern willow flycatcher habitat. The Rio Grande Water 
Conservancy District is providing strong political support for 
establishment of the Rio Grande Natural Area, currently before 
Congress. The 33 mile stretch of the Rio Grande from the Alamosa 
National Wildlife Refuge to the New Mexico border will continue to 
managed by the Bureau of Land Management and private landowners as a 
Natural Area. If enacted, the Natural Area would establish an advisory 
council that would develop a plan and provide a framework for the 
conservation of riparian habitat. The Saguache Creek Corridor Project 
has been awarded a $3.7 million grant by the Colorado Cattleman's 
Agricultural Land Trust to assist landowners in the perpetual 
protection of conservation easements. These easements would permanently 
protect the agricultural, wildlife, and scenic values of this riparian 
corridor that contains significant patches of willow.
(1) Benefits of Inclusion
    The draft environmental assessment found that minor changes through 
section 7 consultations, due to a critical habitat designation, may 
occur in the form of additional discretionary conservation 
recommendations to reduce impacts to the primary constituent elements. 
Thus, if the areas proposed in the San Luis Valley were designated as 
critical habitat, there may be some benefit through consultation under 
the adverse modification standard for federally sponsored actions. But, 
we believe this benefit is minimal since these locations are currently 
occupied by breeding flycatchers, dispersing young-of-the year 
flycatchers, migrating, foraging, and non-breeding flycatchers; thus, 
effects to flycatcher habitat are already considered in consultations 
under section 7 of the Act. In addition, the past history of 
conservation efforts, as well as efforts and funding to date in the 
development of the preliminary HCP, demonstrate the commitments of the 
San Luis Valley to provide for the conservation of the flycatcher and 
the growth and persistence of its habitat. For these reasons and 
because formal consultations in these proposed areas of critical 
habitat, as explained elsewhere in this rule, will likely result in 
only discretionary conservation recommendations due to existing 
appropriate management, we believe there is an extremely low 
probability of mandatory elements (i.e., reasonable and prudent 
alternatives) arising from formal section 7 consultations that include 
consideration of designated critical habitat for the southwestern 
willow flycatcher.
    With regard to the preliminary HCP, in order for the Service to 
issue this permit regardless of whether critical habitat is designated, 
we would have to conclude that the HCP would not jeopardize the 
southwestern willow flycatcher. However, because southwestern willow 
flycatchers already exist in these proposed critical habitat areas in 
the San Luis Valley, as noted above, the scope of our analysis pursuant 
to section 7 would also include effects to flycatcher habitat; 
therefore, we believe the additional designation of critical habitat 
would provide little benefit when we conduct our inter-Service 
consultation on the anticipated issuance of this HCP.
    We have also determined through our review of the preliminary San 
Luis Valley Regional HCP that it provides for the development and 
accumulation of important biological information that would otherwise 
be unavailable and that will benefit the flycatcher and many other 
species. Specifically, we find that it will educate many people 
regarding the role of geology and topography in meeting the needs of 
wildlife in these stream habitats, and understanding the ecological 
processes that develop, maintain, or degrade these habitats. This HCP 
also provides conservation benefits that address and benefit multiple 
species and environmental concerns across broad landscapes, regardless 
of occupancy by southwestern willow flycatcher and other covered 
species. The HCP is anticipated to provide conservation beyond what 
could be achieved through a parcel-by-parcel avoidance of take, or 
through multiple section 7 consultations due to a diversity of actions 
undertaken through the HCP, including proactive restoration and 
remediation of existing problem areas. The HCP will serve as a 
foundation for landscape conservation planning on adjacent lands and 
allow longer-range planning, all of which would benefit the 
southwestern willow flycatcher, bald eagle, yellow-billed cuckoo and 
other riparian associated wildlife. For the reasons discussed above and 
because formal consultation on the issuance of the HCP would likely 
result in only discretionary conservation recommendations due to 
beneficial nature of the HCP, we believe there is an extremely low 
probability of mandatory elements (i.e., reasonable and prudent 
alternatives) arising in this case. Therefore, as noted above, we 
believe the designation of critical habitat would provide little 
benefit as a result of our section 7 analysis on the anticipated 
issuance of this HCP.
    There may also be non-regulatory and educational benefits to 
conservation of the flycatcher, including informing the public of areas 
important for conservation of the species, and focusing attention on 
and awareness of those areas. In Sierra Club v. Fish and Wildlife 
Service, 245 F.3d 434 (5th Cir. 2001), the Fifth Circuit Court of 
Appeals stated that the identification of habitat essential to the 
conservation of the species can provide informational benefits to the 
public, State and local governments, scientific organizations, and 
Federal agencies. The court also noted that heightened public awareness 
of the plight of listed species and their habitats may facilitate 
conservation efforts. However, we believe that there would be little 
educational and informational benefit gained from including proposed 
critical habitat in the Rio Grande and Conejos Rivers of the San Luis 
Valley within the designation, because they were included in the 
proposed rule as essential habitat, are discussed in this final rule, 
and have been the focus of conservation related activities for a number 
of years. Consequently, we believe that the informational benefits are 
already provided even though these areas are not designated as critical 
habitat.
(2) Benefits of Exclusion
    The benefits of excluding lands within the proposed critical 
habitat area of the Rio Grande and Conejos Rivers, that are encompassed 
by the San Luis Valley HCP, from critical habitat

[[Page 60969]]

designation include recognizing the value of conservation benefits 
associated with HCP actions; encouraging actions that benefit multiple 
species; encouraging local participation in development of new HCPs; 
and facilitating the cooperative activities provided by the Service to 
landowners, communities, and counties in return for their adoption and 
support of the HCP. Additionally, the existing partnerships and the 
integration of Federal land management with non-Federal land management 
will enhance a consistent management approach on a landscape level.
    If issued, the San Luis Valley HCP will help promote flycatcher 
recovery through the development and implementation of the HCP, as 
noted above, and by providing for other important conservation 
benefits, including the development of important biological information 
needed to guide conservation efforts and assist in species conservation 
within and outside the HCP planning area. In general, HCPs also aid in 
the creation of innovative solutions to conserve species that can be 
applied wherever similar needs exist, irrespective of land ownership.
    If issued, the San Luis Valley HCP can also facilitate other 
cooperative activities with other similarly situated landowners. 
Continued cooperative relations with San Luis Valley citizens are 
expected to influence other future partners and lead to greater 
conservation than would be achieved through multiple section 7 
consultations. We anticipate participating in a scientific advisory 
team that oversees the HCP, and allows for the sharing of information 
and development of relationships with a number of other entities, 
including Tribes.
    Failure to exclude these two stream segments in the San Luis Valley 
could be a disincentive for other entities contemplating partnerships, 
as it would be perceived as a way for the Service to impose additional 
regulatory burdens once conservation strategies have already been 
agreed to or are underway, as is the case here with the development of 
the San Luis Valley HCP.
    Nonfederal landowners are motivated to work with the Service 
collaboratively to develop HCPs because of the regulatory certainty 
provided by an incidental take permit under section 10(a)(1)(B) of the 
Act with the No Surprises Assurances. This collaboration often provides 
greater conservation benefits on nonfederal lands than could be 
achieved through strictly regulatory approaches, such as critical 
habitat designation. The conservation benefits resulting from this 
collaborative approach are built upon a foundation of mutual trust and 
understanding. It takes considerable time and effort to establish this 
foundation of mutual trust and understanding which is one reason it 
often takes several years to develop a successful HCP. Excluding these 
stream segments from critical habitat would help promote and honor that 
trust and thereby our partnership by providing greater certainty for 
the HCP applicant.
    In discussions with the Service, HCP permittees and applicants have 
indicated they view critical habitat designation as an unwarranted and 
unwelcome intrusion on their property, and an erosion of the regulatory 
certainty that would be provided by their incidental take permit and 
the No Surprises Assurances. Having applicant's understand the 
Service's commitment will encourage continued partnerships that could 
result in additional conservation plans or additional lands enrolled in 
HCP's and, in this case, demonstrate the Service's commitment to 
continue to work in cooperation with these entities for the mutual 
benefit of the flycatcher.
    Our collaborative relationships with an HCP applicant clearly make 
a difference in our partnership with the numerous landowners of the San 
Luis Valley and influence our ability to form partnerships with others. 
Concerns over added regulation potentially imposed by critical habitat 
harms this collaborative relationship by leading to distrust. Our 
experience has demonstrated that successful completion of one HCP has 
resulted in the development of other conservation efforts and HCPs with 
other landowners. We believe this HCP will result in implementation of 
conservation actions that we would be unable to accomplish otherwise 
and by excluding this area we preserve our partnership and promote more 
effective conservation actions in the future.
    Additional benefits from excluding these two stream segments from 
critical habitat designation includes relieving landowners, 
communities, and counties from any additional regulatory burden and 
costs associated with the preparation of section 7 documents related to 
critical habitat. While the costs of these additional documents to the 
Service is relatively minor, there could be delays which generate very 
real costs to private landowners in the form of opportunity costs as 
well as direct costs. In addition, stigma costs are associated with the 
regulatory designation of critical habitat. There would be reduced 
costs and staffing requirements as consultations would be more 
extensive with a critical habitat designation thereby reducing costs 
associated with producing Biological Assessments and Biological 
Opinions. Since critical habitat is only proposed for occupied areas, 
already subject to a jeopardy analysis, it is anticipated this 
reduction would be minimal. If issued, the HCP will provide substantial 
protection to the ecosystem as a whole, which we believe will 
contribute to the conservation of the flycatcher and other covered 
species. This preliminary HCP covers a large area that is outside of 
our proposed stream segments, including areas not currently occupied by 
the flycatcher. Including these areas as part of the HCP can contribute 
to southwestern willow flycatcher recovery by including riparian 
habitats suitable for future occupancy by southwestern willow 
flycatcher.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, we believe that the benefits of excluding these stream 
segments based upon our past and current partnership, including the 
current efforts towards development and issuance of the preliminary San 
Luis Valley HCP, from the designation of southwestern willow flycatcher 
critical habitat outweighs the benefits of their inclusion. We find 
that including these two stream segments, would result in very minimal, 
if any additional, benefits to the southwestern willow flycatcher, as 
explained above. However, including them would require additional 
administrative effort and cost during the consultation process pursuant 
to section 7 of the Act. Although the additional effort to consider and 
analyze the affects of various projects on critical habitat may not be 
substantial, it would require the citizens of the San Luis Valley and 
the Service to use additional resources that may otherwise be used 
towards beneficial projects for wildlife throughout the San Luis 
Valley.
    We also find that the exclusion of these lands will not lead to the 
extinction of the species, nor hinder its recovery because the 
management emphasis of the San Luis Valley in general and specifically 
through the preliminary HCP and the various partners within the San 
Luis Valley is to protect and enhance riparian habitat, which the 
southwestern willow flycatcher depends on. This emphasis on conserving 
riparian habitat will ensure the long-term conservation of the 
southwestern willow flycatcher and other riparian species and 
contribute to flycatcher recovery by conserving

[[Page 60970]]

riparian habitat that is not currently occupied.

Owens Management Unit, CA

Los Angeles Department of Water and Power Conservation Strategy
    As discussed in the ``Summary of Changes from the Proposed Rule'' 
section above, we have determined that the Owens Management Unit, CA 
(OMU) in the Basin and Mojave Recovery Unit will not be designated as 
critical habitat in this final rule. We have reached this determination 
because we believe the benefits of excluding the Owens River from the 
final critical habitat designation outweigh the benefits of designating 
the Owens River as critical habitat.
    The OMU, which was proposed as critical habitat, includes a 111 km 
(69 mi) long reach of the Owens River and a 1.4 km (0.9 mi) long reach 
of Rock Creek in Inyo and Mono Counties, CA. The Owens River segment is 
bounded on the upstream end by a point that is 0.8 km (0.5 mi) east of 
the Long Valley Dam, and on the downstream end by a point that is 6.4 
km (4 mi) north of Tinemaha Reservoir. The Rock Creek segment consists 
of the downstream-most portion of the creek in Birchim Canyon before it 
intersects the Owens River. All of the land within the OMU is owned and 
managed by the Los Angeles Department of Water and Power.
    On July 12, 2005, the Service and the Los Angeles Department of 
Water and Power signed a memorandum of understanding (MOU) which 
included a southwestern willow flycatcher conservation strategy 
designed to proactively manage flycatchers in the OMU. The conservation 
strategy addresses three elements, livestock grazing, recreational 
activities, and wild land fires that have the potential to adversely 
affect the southwestern willow flycatcher in the OMU. The conservation 
strategy provides specific measures that: (1) are designed to create 
suitable breeding habitat for the southwestern willow flycatcher, and 
(2) avoid and minimize potential adverse effects such as the 
degradation or loss of habitat that may be associated with grazing 
activities, recreational activities, and wild land fires. The document 
also states the Los Angeles Department of Water and Power will 
implement the aforementioned measures with the goal of promoting the 
establishment of 50 southwestern willow flycatcher territories in the 
OMU; this number of territories was identified in the Southwestern 
Willow Flycatcher Recovery Plan (USFWS 2002), and reflects the number 
of territories the Service believes is necessary to recover this 
species in that area. The finalized MOU and conservation strategy 
signed by the Los Angeles Department of Water and Power were received 
by the Service during the public comment period which ended July 18, 
2005.
    The MOU provides a commitment by the Los Angeles Department of 
Water and Power to implement the conservation strategy for a minimum of 
10 years, and also contains a clause stating that the MOU will become 
null and void if all or any part of the OMU is designated as critical 
habitat for the southwestern willow flycatcher. At the end of the 10-
year period, the Service and LADWP will conduct a joint evaluation to 
determine if there is a need to renew the conservation strategy for an 
additional 10-year period. If it is deemed necessary, the renewal of 
the conservation strategy will provide assurances that the measures to 
conserve the habitat of the southwestern willow flycatcher will 
continue. In the event that the conservation strategy is renewed, the 
Service and LADWP will collectively determine if new measures need to 
be implemented to promote the establishment and persistence of 
additional habitat for the southwestern willow flycatcher.
(1) Benefits of Inclusion
    As of the date of this final rule, the Service has not conducted 
any formal or informal consultations that involve the southwestern 
willow flycatcher in the Owens Valley area since this species was 
listed as endangered in 1995. We also note that staff from the Los 
Angeles Department of Water and Power have stated that, with regard to 
the OMU, they have not received or required any Federal permit, 
license, authorization, or funding to complete projects in this area, 
and they do not anticipate there will be a project that will create a 
Federal nexus within the foreseeable future. The lack of previous 
section 7 consultations during the past 10 years, and the expectation 
that there will be no future project within the OMU with a Federal 
nexus leads us to believe that critical habitat designation will create 
relatively few benefits for the southwestern willow flycatcher in this 
area.
    Designation of critical habitat also provides educational benefits, 
including informing private landowners of areas that are important to 
the conservation of listed species and providing important information 
on those habitats and their primary constituent elements. Because the 
Los Angeles Department of Water and Power is the sole owner of the land 
within the OMU, and they have either conducted, or contracted surveys 
for the southwestern willow flycatcher, the agency is aware the species 
occurs on their property. Therefore, the potential designation of 
critical habitat in the OMU would not provide this educational benefit 
because the Los Angeles Department of Water and Power already knows the 
species is present on their property. Los Angeles Department of Water 
and Power staff is also already aware that their property has a 
relatively high concentration of southwestern willow flycatchers in 
relation to other areas outside of the Owens Valley area, and this 
species has specific habitat requirements that require proactive 
management. Additionally, these lands are identified in our proposed 
and final rule as areas essential to the conservation of the 
southwestern willow flycatcher.
(2) Benefits of Exclusion
    The development of a MOU between the Service and another entity is 
an activity that both parties must voluntarily agree to; as such, both 
entities negotiate the terms and conditions of the document. In the 
case of the MOU involving the OMU, the Los Angeles Department of Water 
and Power agreed to implement the conservation strategy to benefit the 
southwestern willow flycatcher, provided that critical habitat in the 
Owens Valley is not designated.
    The Service has reviewed the measures in the conservation strategy, 
and we believe the implementation of these measures will create a 
tangible and quantifiable benefit within the 19,830 ha (49,000 ac) area 
that constitutes the OMU. For example, the grazing prescriptions will 
enhance the survival of riparian shrubs and trees during their first 
years of growth and minimize adverse effects to young age classes of 
riparian willow and cottonwood trees, thereby allowing the riparian 
community to develop dense thickets of trees and shrubs that are likely 
to be used by the southwestern willow flycatcher. The regulation of 
recreational activities conducted by the public within the OMU will act 
to protect and/or restore riparian areas by minimizing erosion, 
reducing the number of trails that exist or could develop, and 
improving bank stability. Unintentional fires in riparian areas will be 
given high priority for fire suppression. If fires affect significant 
portions of the Owens River, Los Angeles Department of Water and Power 
staff will pursue management actions that facilitate a more rapid 
recovery of the affected riparian habitats. For

[[Page 60971]]

example, flows in the Owens River, authorized grazing activities, and 
recreational use may be adjusted to facilitate the recovery of burned 
riparian habitats.
    The conservation strategy also provides a commitment by the Los 
Angeles Department of Water and Power and the Service to review the 
conservation strategy and management activities to determine what 
mutually agreeable protective measures could be further implemented/
added to the existing conservation strategy. If such additional 
protective measures are needed, the Los Angeles Department of Water and 
Power will identify these measures in annual reports that will be sent 
to the Service, and implement the new measures as soon as possible. As 
stated above, the commitment to conduct the aforementioned activities 
is based on Los Angeles Department of Water and Power's desire to work 
with the Service and reduce the need to designate critical habitat in 
Owens Valley.
    We also note the development of the MOU and conservation strategy 
for the southwestern willow flycatcher in the OMU has been a 
collaborative effort that has promoted the development of a positive 
relationship between the Service and the Los Angeles Department of 
Water and Power. The Service believes the collaborative relationship 
between the two agencies will be especially useful in the future 
because Los Angeles Department of Water and Power staff have indicated 
they will likely work with the Service on additional partnership 
efforts to conserve fish and wildlife resources within the next year or 
two. Such documents are more easily completed when the Service and an 
applicant have a collaborative relationship, and would benefit a 
variety of listed species in the Owens Valley area.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We find that the benefits of designating critical habitat within 
the OMU are relatively small in comparison to the benefits of 
exclusion. In making this finding, we have weighed the benefits of 
including these lands as critical habitat without the MOU and 
conservation strategy against the exclusion of these lands from 
critical habitat and the implementation of the MOU and conservation 
strategy. We have concluded that the benefits of the MOU and 
conservation strategy far outweigh those that would result from the 
designation. We have therefore excluded these lands from the final 
critical habitat designation pursuant to section 4(b)(2) of the Act.
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions that might adversely affect the southwestern willow flycatcher, 
regardless of whether a Federal nexus is present, must undergo a 
consultation with the Service under the requirements of section 7 of 
the Act or receive a permit from us under section 10. The southwestern 
willow flycatcher is protected from take under section 9. The 
exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of active 
conservation measures underway for the species, which provide greater 
conservation benefits than would result from a designation. Consistent 
with the recommendations in the Recovery Plan (USFWS 2002), LADWP will 
implement measures and activities with the goal of promoting the 
establishment of 50 southwestern willow flycatcher territories in the 
Owens Management Unit. There is accordingly no reason to believe that 
this exclusion would result in extinction of the species.

Middle Rio Grande Management Unit, NM

Rio Grande Valley State Park (City of Albuquerque)
    Within the Middle Rio Grande Management Unit lies the Rio Grande 
Valley State Park (Park), an area proposed as critical habitat for the 
flycatcher. The Park consists of the entire wooded riparian forest and 
associated floodway of the Rio Grande within Bernalillo County, NM, 
with minor exceptions (e.g., Pueblo lands, private lands, land within 
the Village of Corrales, and bridge rights-of-way). The Park is 
approximately 1,756 ha (4,340 ac), of which 1,060 ha (2,620 ac) are 
riparian forest (bosque) and 696 ha (1,720 ac) are floodway of the Rio 
Grande. Its outer boundaries are service roads that run along the land-
side of several main riverside drains. The City of Albuquerque (City) 
has managed the Park since 1983 under legal authority granted by the 
State of New Mexico.
    The City is designated by State law to manage the Park ``in such a 
manner as to protect and enhance the scenic and natural values of the 
Rio Grande,'' NMSA Sec.  16-4-14 (D). It has done so since 1983 
pursuant to a series of conservation-based management plans through the 
City's Open Space Division. In 1987 the City wrote a Management Plan 
emphasizing bosque management to conserve, preserve, protect, enhance 
and diversify the riparian ecosystem. Even though the Management Plan 
was developed before the listing of the flycatcher, the plan includes 
actions needed to provide conservation measures to the flycatcher. A 
1993 Bosque Action Plan, written by the City of Albuquerque Parks and 
General Services Department and adopted by the City Council, includes 
preservation and conservation of vegetation and wildlife communities 
including the flycatcher and the habitat upon which it depends. Over 
the past decade the City's plans and management initiatives have 
focused increasingly on habitat restoration and management for 
endangered species, including the flycatcher. In 1999 a number of 
parties came together to develop a constructive solution that would 
resolve conflicts and benefit the flycatcher and Rio Grande silvery 
minnow. The City is one of these parties which signed a Memorandum of 
Understanding in April 2002 as the Middle Rio Grande ESA Collaborative 
Program (Program). The Program was created by Senator Domenici of New 
Mexico in 2000 and has since been funded through the Energy and Water 
Development Appropriations Subcommittee. The Program's goal is to 
contribute to the survival and recovery of the flycatcher and Rio 
Grande silvery minnow in the Middle Rio Grande basin. Most recently, 
the City's 2005 Environmental Enhancement Plan (EEP) includes numerous 
new revegetation and off-channel water improvements intended 
specifically to enhance flycatcher habitat. It focuses on establishing 
and maintaining a mosaic of habitat types and vegetation/plant 
communities within the Park. The City's commitment to managing 
established plant communities will ensure long-term sustainability of 
habitats preferred by and beneficial to the flycatcher. The EEP and 
current management of the Park represent a culmination of previous 
plans and ongoing research and management efforts.
    The Park is contained within a highly urbanized environment and the 
EEP also focuses on the serious threat to public health and safety 
posed by bosque wildfire. Consistent with its mandate to manage the 
Park to protect and enhance the scenic and natural environment, the 
City manages the Park to prevent catastrophic wildfire. The threat to 
the public was made clear by the devastating bosque fires of 2003 in 
the Park. Major fires consumed over 162 ha (400 ac) of bosque, or 
approximately

[[Page 60972]]

\1/6\ of the riparian forest in Bernalillo County. These fires 
destroyed or threatened homes and lives and also resulted in serious 
damage to wildlife habitat.
    The U.S. Army Corps of Engineers (Corps) was initially requested to 
assist with restoration of these burn areas and other work needed to 
improve access and prevent future fires. In January of 2004, the Corps 
was authorized to assist local efforts of this type. Pursuant to the 
authority of Public Law 108-137, Operations and Maintenance, Section 
116, which states: ``the Secretary of the Army, acting through the 
Chief of Engineers, is authorized to undertake appropriate planning, 
design, and construction measures for wildfire prevention and 
restoration in the Middle Rio Grande bosque in and around the City of 
Albuquerque. Work shall be directed toward those portions of the bosque 
which have been damaged by wildfire or are in imminent danger of damage 
from wildfire due to heavy fuel loads and impediments to emergency 
vehicle access.''
    High fuel loads that have accumulated over the past 50 years and 
growth of non-native species have added to the danger of fire in the 
bosque. Over the last five to ten years, this threat has grown due to 
drought conditions throughout the west causing the build-up of dead 
material to become extremely dry. Because of the proximity of 
structures to the bosque, the threat to human health and property is of 
imminent concern. In August 2004, we consulted on the Bosque Wildfire 
Project, Bernalillo and Sandoval Counties, New Mexico (Bosque Wildfire 
Project) with the Army Corps of Engineers (U.S. Army Corps of Engineers 
2004; USFWS 2004a). The Bosque Wildlfire Project was designed to reduce 
the fuel loading in the bosque, as well as improving access for fire 
fighter safety, in case a fire were to break out. The project began in 
September 2004 and should be complete by March 2006. We found that the 
overall project and revegetation activities would begin to restore the 
bosque and improve habitat over the long-term for the flycatcher. 
Therefore, potential project modifications are likely to be minimal, 
given the beneficial nature of the current activities and projects. We 
note that protecting human life and property is the highest priority in 
the wildland urban interface. In addition, threats of wide-scale 
habitat loss due to fire are real and immediate on many private and 
public lands. As such, we will continue to encourage efforts such as 
this project to reduce the risk of wildfire, while conducting habitat 
restoration activities.
    The City's response to these fires was to utilize State and Federal 
resources to accelerate broad-scale fuels reduction within the Park. 
The City's fire suppression program, developed in concert with State 
and Federal agencies, is part of the 2005 EEP and is largely based on 
thinning of the thick accumulations of dead and down vegetation; and 
replacement of non-native species with cottonwoods, willow, and other 
native species. Over 526 ha (1,300 ac) were treated in a six-month 
period; 890 ha (2,200 ac) (nearly 85%) of the riparian forest had been 
treated or previously burned by the beginning of May 2005. The only 
untreated areas remaining are those scheduled for habitat restoration 
projects in the fall of 2005, or selected research sites, which will 
have fuels reduction at a later date. The outcome of these public 
safety actions has been to greatly alter the former hazardous 
conditions within the Park in order to favor re-establishment of native 
vegetation communities.
    The loss of bosque due to fire and the vegetation management to 
reduce the threat of future fire destruction has created the 
opportunity to recreate a healthy native bosque. The circumstances have 
allowed the Park to analyze the bosque ecosystem and plan for a mosaic 
of plant community types that will benefit the wildlife, including the 
flycatcher. Plant communities are proposed that would significantly 
improve the existing habitats in the Park to those more beneficial to 
the flycatcher. Acreages of restored under-canopy species, thickets of 
native shrubs, and plantings at edges of standing or slow-moving water 
are identified. Suitable vegetation structure is but one side of an 
equation for potential flycatcher habitat; proximity to water is also a 
vital consideration. Planned features include created or enhanced 
wetland or outfall channels, moist soil depressions, and overbank 
flooding areas. Several Park zones are considered ``special management 
areas'' due to their high habitat values or unique existing 
characteristics and will be managed for the flycatcher. All of these 
feature types are proposed as part of the EEP and will work towards 
sustained conservation for the flycatcher.
(1) Benefits of Inclusion
    We believe that there is minimal benefit from designating critical 
habitat for the southwestern willow flycatcher within the Park because, 
as explained above, these lands are already managed for the 
conservation of flycatcher.
    As stated in the environmental assessment, the primary conservation 
value of the proposed critical habitat segments is to sustain existing 
populations. The threshold for reaching destruction or adverse 
modification on Park lands would likely require a reduction in the 
capability of the habitat to sustain existing populations. Currently, 
the only territories known are immediately downstream of the Park, so 
the only populations expected to use this area are migrant or 
dispersing southwestern willow flycatchers. As noted above, a 
consultation with the Corps for restoration and fire prevention 
activities within the Park was finalized in 2004 at which time we 
concurred that the project ``may affect, but is not likely to adversely 
affect'' the flycatcher. The Service recognized the beneficial effects 
to flycatcher habitat from the Corps' proposed activities to reduce the 
risk of catastrophic wildfire and to reestablish native vegetation. 
Because southwestern willow flycatchers use the Park as habitat for 
migration and dispersal, the scope of our analysis in this consultation 
already included consideration of the effects to flycatcher habitat and 
determined that the project provides benefits to the flycatcher through 
reducing the risk of wildfire that can destroy its habitat and through 
the restoration of native riparian vegetation.
    Given the consultation history and the fact that these lands are 
managed in a way that provide a conservation benefit for the 
flycatcher, it is highly unlikely that projects would be considered 
that would result in a depreciable diminishment or long-term reduction 
of the capability of the habitat to sustain existing populations. To 
the contrary, activities occurring on these lands will provide benefits 
to the flycatcher by restoring, improving, and protecting its habitat.
    We believe the conservation measures for the flycatcher that are 
occurring or will be used in the future in the Park (i.e., riparian 
restoration and fire prevention measures) provide as much, and possibly 
more benefit than would be achieved through section 7 consultations 
involving consideration of critical habitat using a conservation 
standard based on the Ninth Circuit Court's decision in Gifford 
Pinchot. This is because management that is occurring or future 
activities will be the same activities which would be implemented in 
order to maintain or restore flycatcher habitat.
    We believe that there would be little additional informational 
benefit gained

[[Page 60973]]

from including the Park within the designation because the final rule 
identifies all areas that are essential to the conservation of the 
flycatcher, regardless of whether all of these areas are included in 
the regulatory designation. Consequently, we believe that the 
informational benefits are already provided for areas that are being 
excluded from the designation of critical habitat.
(2) Benefits of Exclusion
    The proposed critical habitat designation would be an 
administrative and economic burden to the ongoing ecological 
stewardship of the Park by the City, and the multi-agency cooperative 
projects now planned. The costs of section 7 consultations for the 
Corps and non-Federal project proponents would increase due to the 
administrative costs associated with allocating staff time to the 
consultation process, costs associated with delay of thinning and 
revegetation activities until consultations are completed, and direct 
monetary expenditures associated with potential project delays. As 
such, the benefits of excluding the Park from the designation include a 
reduction in administrative costs associated with engaging in 
consultations pursuant to section 7 of the Act.
    Designation could thwart ongoing conservation efforts by the City 
and by others, adding additional regulatory burdens. The Corps also has 
an ongoing revitalization project that will create a 32 km (20 mi) 
aquatic park/wetland along the Middle Rio Grande (Tingley Beach) (USFWS 
2004). There has been some concern that critical habitat designation 
for the flycatcher may hinder the efforts of these programs. Effects to 
actions planned by these programs to date has been similar to those 
experienced by other saltcedar removal and vegetation management 
projects, primarily including avoiding removal of vegetation during 
flycatcher breeding season (USFWS 2005a). Costs and any potential 
delays for reinitiation of consultation will be minimized by excluding 
this area from designated critical habitat.
    The City's collective management plans for the Park represent a 
complete and comprehensive program, which will provide a conservation 
benefit to the flycatcher. The City's management of the Park is 
consistent with the recovery plan for the flycatcher; the collective 
plans implement or propose to implement many of the conservation 
measures set forth in the flycatcher recovery plan. The City's various 
management plans provide assurances that the management will be 
implemented. Indeed, as noted, the City is mandated by State law to 
manage the Park. Finally, the collective plans provide assurances that 
management of the Park will be effective in providing benefits to the 
southwestern willow flycatcher through continued monitoring and 
reporting, among other things, and the City's management of the Park is 
of a perpetual nature.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, we believe that the benefits of excluding the Park from 
critical habitat for the flycatcher outweigh the benefits of its 
inclusion in critical habitat. Including this area may result in some 
benefit through additional consultations with those whose activities 
may affect critical habitat. However, overall this benefit is minimal 
because the Park is currently being managed in a manner that provides a 
conservation benefit to the flycatcher. On the other hand, exclusion 
will greatly benefit the expeditious completion of scheduled bosque 
restoration activities for the fall of 2005 and will encourage the 
ongoing management for the sustainability of flycatcher habitat. It 
will recognize the benefits to conservation of the flycatcher in the 
management plans and the multi-agency collaborative efforts that are 
based on the premise that it is better to work in the spirit of 
cooperation to develop solutions to shared problems regarding resource 
management and meeting the needs of our endangered species. It will 
also recognize the need to manage the bosque, a wildland-urban 
interface, for health and human safety.
    We also find that the exclusion of these lands will not lead to the 
extinction of the species, nor hinder its recovery because Park 
projects follow the guidelines set by the Recovery Plan for the 
flycatcher thereby providing a benefit to the flycatcher and its 
habitat. In addition, proposed projects will still require consultation 
pursuant to section 7 as a result of the species presence under the 
jeopardy standard and, as discussed above, the mandate of the Park is 
to manage this area for the protection and enhancement of the scenic 
and natural environment and prevent catastrophic wildfire.

Kern Management Unit, CA

Hafenfeld Ranch Conservation Easement
    Section 4(b)(2) of the Act requires us to consider other relevant 
impacts, in addition to economic impacts, of designating critical 
habitat. One approximately 37 ha (93 ac) parcel (Hafenfeld Parcel) 
located on lands owned by the Hafenfeld Ranch in the proposed Kern 
Management Unit warrants exclusion from the final designation of 
critical habitat under section 4(b)(2) of the Act because we have 
determined that the benefits of excluding the Hafenfeld Parcel from the 
critical habitat designation will outweigh the benefits of including it 
in the final designation based on the special management considerations 
and protections afforded for southwestern willow flycatcher habitat 
through a conservation easement and Conservation Plan developed by the 
Natural Resources Conservation Service (NRCS). The following represents 
our rationale for excluding the Hafenfeld Parcel from the final 
designated critical habitat for the southwestern willow flycatcher in 
the Kern Management Unit.
    The dominant vegetation in the Kern Management Unit is mature 
willows (Salix gooddingii, S. lasiandra, and S. laevigata) and Fremont 
cottonwood (Populus fremontii). Other plant communities of the Kern 
Management Unit include open water, wet meadow, and riparian uplands. 
Approximately 9.3 ha (23 ac) of mature riparian forest habitat is found 
on the Hafenfeld Parcel, mainly located along the braided channels of 
the Kern River that meander through the parcel. Portions of the 
Hafenfeld Parcel are seasonally flooded, forming fragmented wetland 
communities throughout the area. The remainder of the parcel consists 
of wet meadow and riparian upland habitats, consistent with the 
character of habitats located throughout the larger Kern Management 
Unit. The Hafenfeld Parcel completes a continuous corridor of willow-
cottonwood riparian habitat along the south fork of the Kern River that 
connects the east and west segments of the Audubon Society's Kern River 
Preserve, which is known to be occupied by the southwestern willow 
flycatcher. The southwestern willow flycatcher has been documented on 
the Kern Management Unit, which includes the Hafenfeld Parcel. The 
Hafenfeld Parcel is currently protected under an Easement and 
Conservation Plan developed by the NRCS.
    We proposed as critical habitat, but have now excluded from the 
final designation, as described below, portions of the Hafenfeld 
property within the Kern Management Unit.
(1) Benefits of Inclusion
    We believe that there is minimal benefit from designating critical 
habitat for the southwestern willow flycatcher within portions of the 
Hafenfeld property because, as explained above,

[[Page 60974]]

these lands are already managed for the conservation of flycatcher.
    As stated in the environmental assessment, the primary conservation 
value of the proposed critical habitat segments is to sustain existing 
populations. The threshold for reaching destruction or adverse 
modification on the Hafenfeld property would likely require a reduction 
in the capability of the habitat to sustain existing populations. Given 
that these lands are managed for the benefit of the flycatcher it is 
highly unlikely that projects would be considered for this area that 
would result in depreciable diminishment or a long-term reduction of 
the capability of the habitat to sustain existing populations. To the 
contrary, activities occurring on these lands have provided benefits to 
the flycatcher by restoring, improving, and protecting its habitat.
    As described above, the Hafenfeld property proposed for critical 
habitat may have additional conservation value above sustaining 
existing populations, because they are managing these lands to improve, 
protect, and possibly expand upon the amount of nesting habitat that 
would provide for growth of existing populations. Expansion of existing 
populations in these areas would be an element of recovering the 
southwestern willow flycatcher. Accordingly, and as further discussed 
above in the ``General Principles of Section 7 Consultations Used in 
the 4(b)(2) Balancing Process'' section, through section 7 
consultations that may occur, some benefit may incur through the 
adverse modification standard and whether or not the activity results 
in a reduction in the suitability of the habitat to support expansion 
of existing populations. However, because formal consultations will 
likely result in only discretionary conservation recommendations (i.e., 
adverse modification threshold is not likely to be reached), we believe 
there is an extremely low probability of mandatory elements (i.e., 
reasonable and prudent alternatives) arising from formal section 7 
consultations that include consideration of designated southwestern 
willow flycatcher critical habitat.
    We believe the conservation measures for the flycatcher on the 
Hafenfeld property that include the activities described in this 
section that include willow planting and management of surface flows to 
achieve the optimal flooding regime for the enhancement of important 
riparian and wetland habitat provide as much benefit than would be 
achieved through section 7 consultations involving consideration of 
critical habitat. This is because they are already implementing actions 
that restore and maintain flycatcher habitat.
    As discussed in the ``Educational Benefits of Critical Habitat'' 
section above, we believe that there would be little additional 
informational benefit gained from including the Hafenfeld property 
within the designation because this area was included in the proposed 
rule as having essential flycatcher habitat. Consequently, we believe 
that the informational benefits are already provided even though this 
area is not designated as critical habitat. Additionally, in light of 
the existing Easement and Conservation Plan executed between the 
Hafenfeld Ranch and the NRCS, we believe that an education benefit has 
largely been achieved.
(2) Benefits of Exclusion
    The southwestern willow flycatcher occurs on public and private 
lands throughout the Kern Management Unit. Proactive voluntary 
conservation efforts by private or non-Federal entities are necessary 
to prevent the extinction and promote the recovery of the southwestern 
willow flycatcher in the Kern Management Unit.
    The Hafenfeld Parcel is managed in such a way as to promote the 
conservation of the southwestern willow flycatcher through provisions 
of the Conservation Plan developed by the NRCS. Management activities 
include: (1) Limiting public access to the site, (2) winter-only 
grazing practices (outside of the flycatcher nesting season), (3) 
protection of the site from development or encroachment, (4) 
maintenance of the site as permanent open space that has been left 
predominantly in its natural vegetative state, and (5) the spreading of 
flood waters which promotes the moisture regime and wetland and 
riparian vegetation determined to be essential for the conservation of 
the southwestern willow flycatcher. Other prohibitions of the easement 
which would benefit the conservation of the southwestern willow 
flycatcher include: (1) Haying, mowing or seed harvesting; (2) altering 
the grassland, woodland, wildlife habitat, or other natural features; 
(3) dumping refuse, wastes, sewage, or other debris; (4) harvesting 
wood products; (5) draining, dredging, channeling, filling, leveling, 
pumping, diking, or impounding water features or altering the existing 
surface water drainage or flows naturally occurring within the easement 
area; and, (6) building or placing structures on the easement. Funding 
for the implementation of the Conservation Plan is apportioned between 
the United States and the Hafenfeld Ranch by provisions of the 
Conservation Easement.
    We have determined that the southwestern willow flycatcher within 
properties covered by management plans or conservation strategies that 
protect or enhance the conservation of the species will benefit 
substantially from voluntary landowner management actions due to an 
enhancement and creation of riparian and wetland habitat and a 
reduction in risk of loss of riparian habitat. The conservation 
benefits of critical habitat are primarily regulatory or prohibitive in 
nature. Where consistent with the discretion provided by the Act, the 
Service believes it is necessary to implement policies that provide 
positive incentives to private landowners to voluntarily conserve 
natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1996; Bean 2002). Thus, we believe it is 
essential for the recovery of the southwestern willow flycatcher to 
build on continued conservation activities such as these with a proven 
partner, and to provide positive incentives for other private 
landowners who might be considering implementing voluntary conservation 
activities but have concerns about incurring incidental regulatory or 
economic impacts.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, we have determined that the 
benefits of excluding the Hafenfeld Parcel from critical habitat in the 
Kern Management Unit outweigh the benefits of including it as critical 
habitat for the southwestern willow flycatcher.
    The Hafenfeld Parcel is currently operating under a Conservation 
Plan to implement conservation measures and achieve important 
conservation goals through the conservation measures described above, 
as well as willow planting and management of surface flows to achieve 
the optimal flooding regime for the enhancement of important riparian 
and wetland habitat for the southwestern willow flycatcher.
    The Service believes the additional regulatory and educational 
benefits of including these lands as critical habitat are relatively 
small. The Service anticipates that the conservation strategies will 
continue to be implemented in the future, and that the funding for 
these activities will be apportioned in accordance with the provisions 
of the Conservation Plan. The designation of critical habitat can serve 
to educate the general public as well as conservation organizations 
regarding the potential conservation

[[Page 60975]]

value of an area, but this goal is already being accomplished through 
the identification of this area in the Conservation Plan described 
above. Likewise, there will be little additional Federal regulatory 
benefit to the species because (a) there is a low likelihood that the 
Hafenfeld Parcel will be negatively affected to any significant degree 
by Federal activities requiring section 7 consultation, and (b) we 
believe that based on ongoing management activities there would be no 
additional requirements pursuant to a consultation that addresses 
critical habitat.
    Excluding these privately owned lands with conservation strategies 
from critical habitat may, by way of example, provide positive social, 
legal, and economic incentives to other non-Federal landowners who own 
lands that could contribute to listed species recovery if voluntary 
conservation measures on these lands are implemented.
    In conclusion, we find that the exclusion of critical habitat on 
the Hafenfeld Parcel would most likely have a net positive conservation 
effect on the recovery and conservation of the southwestern willow 
flycatcher when compared to the positive conservation effects of a 
critical habitat designation. As described above, the overall benefits 
to these subspecies of a critical habitat designation for these 
properties are relatively small. In contrast, we believe that this 
exclusion will enhance our existing partnership with these landowners, 
and it will set a positive example and provide positive incentives to 
other non-Federal landowners who may be considering implementing 
voluntary conservation activities on their lands. We conclude there is 
a higher likelihood of beneficial conservation activities occurring in 
these and other areas for the southwestern willow flycatcher without 
designated critical habitat than there would be with designated 
critical habitat on these properties.
    We believe that exclusion of these lands will not result in the 
extinction of the southwestern willow flycatcher as these areas are 
considered occupied habitat. Actions which might adversely affect the 
species are expected to have a Federal nexus, and would thus undergo a 
section 7 consultation with the Service. The jeopardy standard of 
section 7 of the Act and routine implementation of habitat preservation 
through the section 7 process provide assurance that the species will 
not go extinct. In addition, the subspecies is protected from take 
under section 9 of the Act. The exclusion leaves these protections 
unchanged from those that would exist if the excluded areas were 
designated as critical habitat.
    Critical habitat is being designated for the subspecies in other 
areas that will be accorded the protection from adverse modification by 
Federal actions using the conservation standard based on the Ninth 
Circuit decision in Gifford Pinchot. Additionally, the flycatcher 
occurs on lands protected and managed either explicitly for the 
subspecies, or indirectly through more general objectives to protect 
natural values, this provides protection from extinction while 
conservation measures are being implemented. The subspecies also occurs 
on lands managed to protect and enhance wetland values under the 
Wetlands Reserve Program of the NRCS.

Upper Gila Management Unit

U-Bar Ranch
    Pacific Western Land Company (PWLC), a Phelps Dodge subsidiary, 
owns the U-Bar Ranch (Ranch) near Cliff, in Grant County New Mexico, in 
the Upper Gila Management Area. As discussed in the proposed rule, 
flycatchers have been detected nesting along stream segments in the 
Upper Gila Management Unit since 1993. In 1999, a high of 262 
territories at 8 sites were detected; the Ranch had 209 of these 
territories. In 2003, 191 territories at 8 sites were detected on the 
Gila River stream segments proposed as critical habitat and the Ranch 
had 123 of these territories. Many of the territories on the Ranch were 
found outside of the flood-prone area, off-channel in habitat along 
irrigation ditches. This privately owned Ranch is an important site for 
the conservation and recovery of the flycatcher in Upper Gila 
Management Area.
    Through the efforts of PWLC and its long-time lessee, Mr. David 
Ogilvie, Phelps Dodge has demonstrated a commitment to management 
practices on the Ranch that have conserved and benefited the flycatcher 
population in that area over the past decade. In addition, Phelps Dodge 
has privately funded scientific research at and in the vicinity of the 
Ranch in order to develop data that has contributed to the 
understanding of habitat selection, distribution, prey base, and 
threats to the flycatcher. Considering the past and ongoing efforts of 
management and research to benefit the flycatcher, done in coordination 
and cooperation with the Service, we find the benefits of excluding 
areas of the U-Bar Ranch outweigh the benefits of including it in 
critical habitat.
    The U-Bar Ranch utilizes a management plan on its pastures within 
the Gila Valley that are north of the Highway 180 West Bridge and south 
of the boundary of the Gila National Forest. Eight pastures that 
incorporate approximately 1,372 ha (3,390 ac) are managed with a plan 
that is adapted annually for operation of livestock and farming 
enterprises. The management consists of a multifaceted and highly 
flexible rest-rotation system utilizing both native forage and 
irrigated fields. The Ranch's numerous pastures allow a relatively 
dynamic rotation system that is modified based upon current conditions. 
Grazing use of river bottom pastures is monitored by daily visual 
inspections. Use of these pastures is limited to ensure that forage 
utilization levels are moderate and over-use does not occur. In 
addition, the riparian areas are monitored regularly, and riparian 
vegetation is allowed to propagate along the river as well as in 
irrigation ditches.
    Some specific management practices, varying in different pastures, 
which relate to the flycatcher and its habitat are: (1) Grazing is 
limited to November through April to avoid negative impacts during 
migration and nesting season; (2) animal units are adjusted to protect 
and maintain the riparian vegetation needed by the flycatcher; (3) the 
irrigation ditches are maintained, along with the vegetation, to 
benefit the flycatcher; (4) restoration efforts follow flood events 
that destroy habitat; and (5) herbicide and pesticides are only used in 
rare circumstances and are not used near occupied territories during 
breeding season. These flexible and adaptive management practices have 
resulted in the expansion, protection, and successful continuance of a 
large flycatcher population.
    In 1995, active restoration followed the flooding destruction of 
the Bennett Farm fields in the 162 ha (400 ac) River Pasture. The 
Bennett Restoration Project is a series of artificially created, 
flooded marshy areas located between irrigated and dry-land pastures 
and the river. The Bennett Restoration Project is a mosaic of 
vegetation in successional stages with dense patches and lines of young 
willows and cottonwoods occurring in manmade oxbows. The oxbows occur 
outside of the active flood channel behind a levee. Water is 
continuously present and the project has become a marshy habitat in 
which flycatcher nesting was noted in 1997 (Dave Ogilvie, pers. comm., 
2005). The site now supports one of the higher numbers of territories 
on the U-Bar Ranch and in the Upper Gila Management Area. The 2004 
survey review resulted in recording 35 territories for the Bennett site 
(N. Baczek, USFWS, pers. com.).

[[Page 60976]]

    The second-most successful nesting site on the U-Bar Ranch is in 
the Lower River Pasture. A significant feature of this riparian area is 
the amount of water it receives from adjacent irrigated fields. The 
Ranch has rehydrated ditches and no longer follows past land-use 
practices, which involved active clearing of woody vegetation from 
ditch banks. The Ranch has developed tree growth and a network of 
wooded strips in connection with the ditch-banks to attract breeding 
flycatchers.
    Besides land management practices, Phelps Dodge and the U-Bar Ranch 
have supported flycatcher surveys and research in the Gila valley since 
1994. Surveyors are trained and permitted in coordination with the 
Service and survey results are submitted to the Service in annual 
reports. Flycatcher research on the Ranch has included: nest monitoring 
(sites, substrate, and success), diet, microhabitat use, climatic 
influences on breeding, cowbird parasitism, and distribution and 
characteristics of territories. Permits for studies are coordinated 
with the Service and reports are submitted to us for review and 
comments. The research provides information to apply to grazing and 
land management (David Ogilvie, May 30, 2005). A current study involves 
eliminating grazing in the Lower River Pasture, but continuing it in 
the Out Pasture and Bennett during flycatcher breeding season to 
evaluate the effect of grazing on nest success and population trends.
(1) Benefits of Inclusion
    There are few benefits in including the U-Bar Ranch in the critical 
habitat designation above those that will be achieved through the 
implementation of their voluntary management and restoration projects. 
As discussed above, the principal benefit of any designated critical 
habitat is that activities affecting habitat require consultation under 
section 7 of the Endangered Species Act if a Federal action is 
involved. Such consultation would ensure that adequate protection is 
provided to avoid destruction or adverse modification of critical 
habitat. Since the U-Bar Ranch is privately owned, unless there is a 
Federal nexus in connection with their activities, the designation of 
critical habitat will not result in a consultation.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. Any information about the 
flycatcher and its habitat that reaches a wide audience, including 
other parties engaged in conservation activities, would be considered 
valuable. However, the U-Bar Ranch is already working with the Service 
to address the conservation and recovery of the species. Further, the 
Ranch was included in the proposed designation, which itself has 
reached a wide audience, and has thus provided information to the 
broader public about the conservation value of this area. Thus, the 
educational benefits that might follow critical habitat designation 
have already been provided by proposing the area as critical habitat. 
For these reasons, then, we believe that designation of critical 
habitat would have few, if any, additional benefits beyond those that 
will result from continued consultation for the presence of the 
species.
(2) Benefits of Exclusion
    We believe that significant benefits would be realized by excluding 
the U-Bar Ranch that include: (1) The continuance and strengthening of 
our effective cooperative relationship with the Ranch to promote the 
conservation of the flycatcher and its habitat; (2) the allowance for 
continued meaningful collaboration and cooperation in surveys, nest 
monitoring, and research as we work towards recovery of the species; 
and (3) the provision of conservation benefits to the Gila River 
ecosystem and the flycatcher and its habitat that might not otherwise 
occur.
    As mentioned above, the U-Bar Ranch is an important land manager in 
the Upper Gila Management Unit. The surveys, conservation, restoration 
and management information submitted by the Ranch document that 
meaningful collaborative and cooperative work for the flycatcher and 
its habitat will continue on their land. The Ranch has committed to 
several ongoing or future management, restoration, enhancement, and 
survey activities that may not occur if we were to designate critical 
habitat on the Ranch. We believe that the results of these activities 
promote long-term protection and conserve the flycatcher and its 
habitat on the Ranch land. The benefits of excluding this area from 
critical habitat will encourage the continued conservation, land 
management, and coordination with the Service. If this area is 
designated as critical habitat, we may jeopardize future conservation, 
research, and information sharing for the recovery of the flycatcher.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, the benefits of including the U-Bar Ranch in critical 
habitat are small, and are limited to insignificant educational 
benefits since these lands are privately owned and the trigger for 
section 7 consultation is lacking. The benefits of excluding this area 
from designation as critical habitat for the flycatcher are 
significant, and include encouraging the continuation of adaptive 
management measures such as monitoring, surveys, research, enhancement, 
and restoration activities that the Ranch currently implements and 
plans for the future. The exclusion of this area will likely also 
provide additional benefits to the species by encouraging and 
maintaining a cooperative working relationship with the Ranch. We find 
that the benefits of excluding this area from critical habitat 
designation outweigh the benefits of including this area.
    We have determined that exclusion of areas of the Ranch will not 
result in extinction of the species. The Ranch is committed to greater 
conservation measures on their land than would be available through the 
designation of critical habitat. Accordingly, we have determined that 
areas of the U-Bar Ranch should be excluded under subsection 4(b)(2) of 
the Act because the benefits of exclusion outweigh the benefits of 
inclusion and will not cause the extinction of the species.

 Table 4.--Total Size of Final Critical Habitat for the Southwestern Willow Flycatcher, Including Areas Excluded
                                     and Exempted From the Final Designation
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Total area identified in proposal as containing essential features.........................      143486 (354562)
Areas exempted under section 4(a)(3) of the Act: Camp Pendleton and Fallbrook Naval Weapons          1793 (4430)
 Station...................................................................................
Exclusion of areas under section 4(b)(2) of the Act: HCP plan areas including Western              27494 (67940)
 Riverside County, CA, Multiple Species Habitat Conservation Plan; San Diego County, CA,
 Multiple Species Conservation Plan; City of Carlsbad, CA, Habitat Management Program;
 Lower Colorado River, CA/AZ Multiple Species Conservation Plan; Roosevelt, AZ Habitat
 Conservation Plan.........................................................................

[[Page 60977]]

 
Exclusion of Tribes and Pueblos under section 4(b)(2) of the Act that have completed               10480 (25897)
 Southwestern Willow Flycatcher Management Plans and/or have developed flycatcher habitat
 specific partnerships with the Service: Hualapai, Chemehuevi, Colorado River, Fort Mojave,
 Quechan (Fort Yuma), Yavapai-Apache, and San Carlos Tribes in AZ, La Jolla, and Rincon
 Tribes in CA; Isleta, San Illdefonso, Santa Clara, and San Juan Pueblos in NM.............
Exclusion of National Wildlife Refuges under section 4(b)(2) of the Act with completed CCPs        18788 (46427)
 or developed management programs/strategies for the southwestern willow flycatcher
 habitat: Pahranagat, NV; Havasu, Cibola, Imperial, and Bill Williams in AZ, Alamosa, CO;
 Bosque del Apache and Sevilleta, NM.......................................................
Exclusion of State and Federal Wildlife Areas under section 4(b)(2) of the Act with plans/          5199 (12847)
 programs for the management and protection of southwestern willow flycatcher habitat:
 Overton and Key Pittman Wildlife Area, NV; Alamo Wildlife Area, AZ; Kern River Wildlife
 Area and Sprague Ranch, CA................................................................
Exclusions of partnerships, management plans/programs or easements under section 4(b)(2) of        30836 (76198)
 the Act that provide protections specific to southwestern willow flycatcher habitat: Los
 Angeles Department of Water and Power-Owens River Southwestern Willow Flycatcher
 Conservation Strategy; San Luis Valley, CO, Partnership; Hafenfeld Ranch--Kern River, CA;
 Salt River Project Partnership--Horseshoe Lake, AZ; U-Bar Ranch--Gila River, NM; Rio
 Grande Valley State Park (City of Albuquerque), NM........................................
    Total Final Critical Habitat...........................................................       48896 (120824)
----------------------------------------------------------------------------------------------------------------

Section 7 Consultation

    The regulatory effects of a critical habitat designation under the 
Act are triggered through the provisions of section 7, which applies 
only to activities conducted, authorized, or funded by a Federal agency 
(Federal actions). Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR 402. 
Individuals, organizations, States, local governments, and other non-
Federal entities are affected by the designation of critical habitat 
only if their actions occur on Federal lands, require a Federal permit, 
license, or other authorization, or involve Federal funding.
    Section 7(a)(2) of the Act requires Federal agencies, including us, 
to insure that their actions are not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. This requirement is met 
through section 7 consultation under the Act. Our regulations define 
``jeopardize the continued existence of'' as to engage in an action 
that reasonably would be expected, directly or indirectly, to reduce 
appreciably the likelihood of both the survival and recovery of a 
listed species in the wild by reducing the reproduction, numbers, or 
distribution of that species (50 CFR 402.02). ``Destruction or adverse 
modification of designated critical habitat'' for this species would 
include habitat alterations that appreciably diminish the value of 
critical habitat by significantly affecting any of those physical or 
biological features that were the basis for determining the habitat to 
be critical. We are currently reviewing the regulatory definition of 
adverse modification in relation to the conservation of the species.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. Conference reports provide conservation 
recommendations to assist Federal agencies in eliminating conflicts 
that may be caused by their proposed actions. The conservation measures 
in a conference report are advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
Federal action agency would ensure that the permitted actions do not 
destroy or adversely modify critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide ``reasonable and prudent alternatives'' to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Service's 
Regional Director believes would avoid the likelihood of jeopardizing 
the continued existence of listed species or resulting in the 
destruction or adverse modification of critical habitat. Reasonable and 
prudent alternatives can vary from slight project modifications to 
extensive redesign or relocation of the project. Costs associated with 
implementing a reasonable and prudent alternative are similarly 
variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions under certain 
circumstances, including instances where critical habitat is 
subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat, or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect southwestern willow flycatcher 
or its critical habitat will require consultation under section 7. 
Activities on private, State, or county lands, or lands under local 
jurisdictions requiring a permit from a Federal agency, such as Federal 
Highway Administration or Federal Emergency Management Act funding, or 
a permit from the Corps under section 404 of the Clean Water Act, will 
continue to be subject to the section 7 consultation process. Federal 
actions not affecting listed species or critical habitat, and actions 
on non-Federal lands that are not federally funded, authorized, or 
permitted, do not require section 7 consultations.
    Section 4(b)(8) of the Act requires us to evaluate briefly and 
describe, in any proposed or final regulation that designates critical 
habitat, those activities involving a Federal action that

[[Page 60978]]

may adversely modify such habitat or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat include those that alter the primary constituent elements to an 
extent that the value of critical habitat for both the survival and 
recovery of southwestern willow flycatcher is appreciably reduced. We 
note that such activities may also jeopardize the continued existence 
of the species. Activities that, when carried out, funded, or 
authorized by a Federal agency that may affect the southwestern willow 
flycatcher and which may require consultation under section 7 of the 
Act to determine if they adversely modify critical habitat include, but 
are not limited to: Removing, thinning, or destroying riparian 
vegetation without a riparian restoration plan to cause habitat to 
become of equal or better quality in abundance and extent. Activities 
that remove, thin, or destroy riparian vegetation, by mechanical, 
chemical (herbicides or burning), or biological (grazing, biocontrol 
agents) means reduce constituent elements for southwestern willow 
flycatcher sheltering, feeding, breeding, and migrating. Each of the 
specific areas designated in this rule as critical habitat for the 
southwestern willow flycatcher have been determined to contain 
sufficient PCEs to provide for one or more of the life history 
functions for the flycatcher. In some cases, the PCEs exist as a result 
of ongoing Federal actions. As a result, ongoing Federal actions at the 
time of designation will be included in the baseline in any 
consultation pursuant to section 7 of the Act conducted subsequent to 
this designation.
    (1) Activities that appreciably diminish value or quality or 
habitat or primary constituent elements through direct or indirect 
effects (e.g., degradation of watershed and soil characteristics, 
diminishing surface and subsurface flow, altering flow regimes, 
introduction of exotic plants, animals, or insects, or fragmentation of 
habitat);
    (2) Alteration of current surface water diversion or impoundment, 
groundwater pumping, dam operation, or any other activity which changes 
the frequency, magnitude, duration, timing or abundance of surface flow 
(Poff et al. 1997), and/or quantity/quality of subsurface water flow in 
a manner which permanently reduces available riparian habitats by 
reducing food availability, or the general suitability, quality, 
structure, abundance, longevity, vigor, micro-habitat components, and 
distribution of riparian habitat for nesting or migrating. This would 
not apply to the normal rise and fall of storage pools behind dams, as 
discussed below.
    (3) Permanent destruction/alteration of the species habitat by 
discharge of fill material, draining, ditching, tiling, pond 
construction, levee construction and stream channelization (i.e., due 
to roads, construction of bridges, impoundments, discharge pipes, 
stormwater detention basins, dikes, levees, etc.).
    (4) Management of livestock in a manner that reduces the volume and 
composition of riparian vegetation, physically disturbs nests, alters 
floodplain dynamics such that regeneration of riparian habitat is 
impaired or precluded, facilitates excessive brood parasitism by brown-
headed cowbirds, alters watershed and soil characteristics, alters 
stream morphology, and facilitates abundance and extent of exotic 
species.
    The designation of critical habitat does not imply that lands 
outside of critical habitat do not play an important role in the 
conservation of the flycatcher. Federal activities outside of critical 
habitat are still subject to review under section 7 if they may affect 
the flycatcher. The prohibitions of section 9 also continue to apply 
both inside and outside of designated critical habitat.
    In general, activities that do not remove or appreciably degrade 
the primary constituent elements of habitat for southwestern willow 
flycatchers are not likely to destroy or adversely modify critical 
habitat. For example, certain dam operations, like Roosevelt Dam in 
central AZ, allow water to significantly increase and decrease in the 
conservation space depending on availability and demand. This 
fluctuation results in the exposure of fine/moist soils in the flat/
broad floodplain of the exposed ground and has led to the development 
of hundreds of acres of flycatcher habitat. The same operating regime 
that creates the habitat will also inundate and cause loss of habitat. 
At this particular location, habitat is expected to persist on the 
perimeter and over time will increase and decrease (USFWS 2003). It is 
this very process of the ebb and flow of the conservation pool that 
ensures persistence of habitat over time, although that habitat will 
vary spatially and temporally, as does flycatcher habitat in natural 
settings. As a result, the dry conservation space would not be 
adversely modified when inundated. Riparian restoration can also cause 
a temporary loss of habitat through the actual removal of existing 
riparian vegetation. However, if this action is combined with positive 
site-specific evaluation (through an analysis of on the ground features 
such as groundwater elevation, etc.) and an implementation/restoration 
plan (USFWS 2002) that together are expected to cause habitat to become 
of the same quality or better for the flycatcher, it would be expected 
that those types of restoration activities would not destroy or 
adversely modify critical habitat. Each proposed action will be 
examined pursuant to section 7 of the Act in relation to its site-
specific impacts.
    All lands designated as critical habitat are within the geographic 
area occupied by the subspecies and are essential for the conservation 
of southwestern willow flycatcher. Within the 15 Management Units we 
are designating as critical habitat, only stream segments from the 
Santa Ana Management Unit (Santa Ana River, Bear Creek, Mill Creek, Oak 
Glen Creek, and Waterman Creek), San Diego Management Unit (Santa 
Margarita River, Temecula Creek, Agua Hedionda Creek, Santa Ysabel 
River, and Temescal Creek), Mohave Management Unit (Deep Creek, Holcomb 
Creek, and Mohave River), Virgin Management Unit (Virgin River in NV 
and UT), and Lower Colorado Management Unit (East Fork of the Little 
Colorado River and the Little Colorado River) were not known to be 
specific areas within the geographic area occupied by the species at 
the time of listing. Due to the wide geographic area this bird inhabits 
due to it being a neo-tropical migrant, in all likelihood, these areas 
were inhabited by southwestern willow flycatchers for nesting, 
dispersing, or migrating, but had not been detected or re-confirmed 
(some areas were historically occupied) until after the species became 
listed in 1995. Much of the increase in the distribution and abundance 
of southwestern willow flycatcher territories since listing has largely 
been a result of increase survey effort (Durst et al. 2005). We have 
provided our rationale for why these specific areas have features 
essential for the southwestern willow flycatcher. We consider all of 
the units designated as critical habitat, as well as those that have 
been excluded, to be essential to the conservation of the southwestern 
willow flycatcher and to contain features essential to the conservation 
of the subspecies. All Management Units are within the geographical 
range by the species, all are occupied by the species (based on 
observations made within the last 10 years), and are likely to be used 
by breeding, non-breeding, territorial, dispersing, or migrating 
southwestern willow flycatchers. Federal agencies already consult with 
us on actions that may affect southwestern willow

[[Page 60979]]

flycatcher to ensure that their actions do not jeopardize the continued 
existence of the species. Thus, we do not anticipate substantial 
additional regulatory protection will result from critical habitat 
designation.
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat, 
contact the Field Supervisor of the appropriate Service Office (see 
list below). In NM and AZ requests for copies of the regulations on 
listed wildlife and plants and inquiries about prohibitions and permits 
may be addressed to the U.S. Fish and Wildlife Service, Branch of 
Endangered Species, Post Office Box 1306, Albuquerque, NM 87103-1306 
(telephone 505/248-6920; facsimile 505/248-6922).

------------------------------------------------------------------------
          Area/State                    Address             Phone No.
------------------------------------------------------------------------
Southern CA...................  6010 Hidden Valley          760/431-9440
                                 Road, Carlsbad, CA
                                 92011.
Central Coastal CA............  2493 Portola Road,          805/644-1766
                                 Suite B, Ventura, CA
                                 93003.
Central California............  2800 Cottage Way,           916/414-6600
                                 Sacramento, CA 95821.
Nevada........................  4701 North Torrey           702/515-5230
                                 Pines Way, Las Vegas,
                                 NV 89130.
Utah..........................  2369 West Orton             801/975-3330
                                 Circle, West Valley
                                 City, UT 84119.
Arizona.......................  2321 W. Royal Palm          602/242-0210
                                 Road Ste. 103,
                                 Phoenix, AZ 85021.
New Mexico....................  2105 Osuna Rd. NE,          505/761-4718
                                 Albuquerque, NM 87113.
------------------------------------------------------------------------

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species concerned. We 
conducted an economic analysis to estimate potential economic effects 
of the proposed southwestern willow flycatcher critical habitat 
designation (USFWS 2005a). The draft analysis was made available for 
public review on April 28, 2005 (70 FR 21988). We accepted comments on 
the draft analysis until May 31, 2005, and once again between July 7 
and July 18, 2005 (70 FR 39227).
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the conservation of the 
southwestern willow flycatcher, including the designation of critical 
habitat. This information is intended to assist the Secretary in making 
decisions about whether the benefits of excluding particular areas from 
the designation outweigh the benefits of including those areas in the 
designation. This economic analysis considers the economic efficiency 
effects that may result from the designation, including habitat 
protections that may be co-extensive with the listing of the species. 
It also addresses distribution of impacts, including an assessment of 
the potential effects on small entities and the energy industry. This 
information can be used by the Secretary to assess whether the effects 
of the designation might unduly burden a particular group or economic 
sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline. The total 
conservation costs from reported efficiency effects associated with the 
designation of critical habitat in this rule are approximately $9 
million from 2004 to 2025. This total includes losses in land value (by 
far the primary cost source), as well as project modification, 
administrative, CEQA, delay, and uncertainty costs.
    A copy of the final economic analysis and description of the 
exclusion process with supporting documents are included in our 
administrative record and may be obtained by contacting the Arizona 
Ecological Services Fish and Wildlife Service office (see ADDRESSES 
section) or retrieved at http://www.fws.gov/arizonaes/.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
However, based on our economic analysis, it is not anticipated that 
this designation of critical habitat for the southwestern willow 
flycatcher will result in an annual effect on the economy of $100 
million or more or affect the economy in a material way. Due to the 
timeline for publication in the Federal Register, the Office of 
Management and Budget (OMB) has not formally reviewed the proposed rule 
or accompanying economic analysis.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, then the agency will need to consider 
alternative regulatory approaches. Since the determination of critical 
habitat is a statutory requirement pursuant to the Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then 
evaluate alternative regulatory approaches, where feasible, when 
promulgating a designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweighs the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the SBREFA), whenever an agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available

[[Page 60980]]

for public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. Based upon our draft economic 
analysis we certified in our July 7, 2005 (70 FR 39227), Federal 
Register notice that this designation would not result in a significant 
effect as defined under SBREFA.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if this designation of critical habitat for the 
southwestern willow flycatcher would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities (e.g., water management 
and supply, livestock grazing, land development, recreation). We 
considered each industry or category individually to determine if 
certification is appropriate. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
the designation of critical habitat. Designation of critical habitat 
only affects activities conducted, funded, permitted or authorized by 
Federal agencies; non-Federal activities are not affected by the 
designation. Federal agencies must consult with us if their activities 
may affect designated critical habitat. Consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into the existing consultation process.
    In our economic analysis we evaluated the potential economic 
effects on small business entities and small governments resulting from 
conservation actions related to the listing of this species and 
proposed designation of its critical habitat. We evaluated small 
business entities in four categories: dam operations and water supply 
activities, and by extension, crop agriculture, ranching activities, 
residential development, and businesses affected by changes to 
recreational use. The following summary of the information contained in 
Appendix A of the final economic analysis provides the basis for our 
determination.
Dam Operations and Water Supply Activities
    Under scenario two analyzed in the draft economic analysis, water 
operators are assumed to be required to change their management regimes 
to avoid adverse effects to southwestern willow flycatcher habitat, 
resulting in a loss of water for beneficial use (i.e. reservoir pools 
will be limited to current levels in order to avoid inundation of 
southwestern willow flycatcher habitat). Facilities assessed under this 
scenario include Lake Hodges, Cuyamaca Reservoir, Vail Dam, Pleasant 
Valley Reservoir (i.e. Owens River), Isabella Dam, Hoover Dam, Parker 
Dam, Alamo Dam, Roosevelt Dam, and Horseshoe Dam. No small businesses 
would be directly affected under this scenario because dams are not 
operated by small businesses. Additionally, as described elsewhere in 
this rule, these reservoirs have been excluded from the designation 
pursuant to section 4(b)(2) of the Act. Therefore no impacts to these 
water operators will result from a critical habitat designation.
    Some water users may be more directly affected by changes in water 
supply that could occur as a result of southwestern willow flycatcher 
conservation activities, specifically, agricultural users dependent on 
the drought reserves provided by these systems. Appendix A of the draft 
economic analysis provides a profile of the agricultural users that are 
at greatest risk from direct losses in water supply under this 
scenario. The four water systems that provide water to agricultural 
users include Lake Isabella (including the North Kern Water Storage 
District, the Buena Vista Storage District, and the City of Bakersfield 
Water Resources Department); Roosevelt and Horseshoe (the Salt River 
Project operates six reservoirs and dams on the Salt and Verde Rivers); 
Coolidge Dam (San Carlos Irrigation Project); and Lower Colorado River 
(water from the Colorado River is diverted to six States and is used 
for every purpose, including agricultural uses). As described elsewhere 
in this rule, these reservoirs have been excluded from the designation 
pursuant to section 4(b)(2) of the Act. Therefore no direct impacts to 
these water users, as described above and in Appendix A of the economic 
analysis, will result from a critical habitat designation.
    Water users in the Safford Valley on the Gila River, Arizona, 
expressed concerns that groundwater and/or surface water withdrawals 
could need to be curtailed to accommodate flycatcher concerns. Water 
withdrawals have not been impacted under past operations, even during 
the period when critical habitat for the flycatcher was previously 
designated. As stated in the ``Section 7'' section above, ongoing 
Federal actions at the time of designation will be included in the 
baseline in any consultation pursuant to section 7 of the Act conducted 
subsequent to this designation. Therefore, we do not anticipate a 
significant economic impact to water users on the Gila River.
Ranching Activities
    The economic analysis assumes that, in the future, grazing efforts 
on areas included in the proposed designation will be reduced, or, in 
the high-end estimate, be eliminated due to flycatcher concerns. Based 
on this analysis, the high impact scenario for allotments in the 
proposed critical habitat is a reduction of 89,400 AUMs (animal unit 
months) over 20 years. Of the total AUMs lost, 1,200 are federally 
permitted and 88,000 are private. Converting AUM reductions to cattle 
reductions reveals that the 37 affected counties may lose a total of 
3,385 head of beef cattle, or 0.6 percent of the total number of beef 
cattle in the affected region. Even for counties for which percentage 
losses appear relatively large, absolute losses per average size ranch 
are one to three cows over a twenty year period.
Residential Development
    Impacts to development activities within the proposed designation 
include land value loss, other project modifications, California 
Environmental Quality Act costs, and project delay costs in the Mojave 
and Santa Ana

[[Page 60981]]

Management Units in California. The economic analysis determines that 
less than 1 percent of land developers will be affected, and 0.02 
percent of annual revenues of small land developers in this area may be 
lost.
Recreation Activities
    Impacts to recreation activities include limitations on vehicle 
use, fires, and cigarette smoking in two areas near Roosevelt Lake on 
the Tonto National Forest, and fewer trips to the area for hunting and 
fishing for a total annual impact of approximately 0.25 percent of 
annual small business revenues in Gila County. As described elsewhere 
in this rule, Roosevelt Lake has been excluded from the designation 
pursuant to section 4(b)(2) of the Act. Therefore, no direct impacts to 
recreation activities at Roosevelt Lake will result from a critical 
habitat designation.
    Based on this data we have determined that the designation of 
critical habitat will not affect a substantial number of small 
businesses involved in or affected by water management and supply 
activities, livestock grazing, land development, and recreation. 
Further, we have determined that the designation will not result in a 
significant effect to the annual sales of those small businesses 
impacted by this designation. As such, we are certifying that the final 
designation of critical habitat will not result in a significant 
economic impact on a substantial number of small entities. Please refer 
to Appendix A of our economic analysis for this designation for a more 
detailed discussion of potential economic impacts to small business 
entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This rule is considered a 
significant regulatory action under E.O. 12866 due to it potentially 
raising novel legal and policy issues, but it is not expected to 
significantly affect energy supplies, distribution, or use. Appendix B 
of the economic analysis provides a detailed discussion and analysis of 
this determination. Specifically, two criteria were determined to be 
relevant to this analysis: (1) Reductions in electricity production in 
excess of 1 billion kilowatt-hours per year or in excess of 500 
megawatts of installed capacity, and (2) increases in the cost of 
energy production in excess of 1 percent. The draft analysis finds that 
no net reduction in electricity production is anticipated, and thus we 
do not anticipate that the suggested OMB threshold of 1 billion 
kilowatt hours will be exceeded. In addition, total financial impacts 
related to southwestern willow flycatcher conservation activities ($2.7 
million annually) represent 0.02 percent of the estimated annual 
baseline cost of regional energy production, and this is well below the 
1 percent threshold suggested by OMB. Therefore, this action is not a 
significant action, and no Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. (At the 
time of enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. Non-Federal entities that receive Federal 
funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) The economic analysis discusses potential impacts of critical 
habitat designation for the southwestern willow flycatcher on water 
management activities, administrative costs, livestock grazing, mining, 
residential and commercial development activities, Tribes, 
transportation activities, recreation activities, and fire management 
activities. The analysis estimates that annual costs of the rule could 
range from $32.7 to $38.00 million annually using the most likely costs 
scenario. Impacts are largely anticipated to affect water operators and 
Federal and State agencies, with some effects on livestock grazing 
operations, land development activities, and recreation activities. 
Impacts on small governments are not anticipated, or they are 
anticipated to be passed through to consumers. For example, costs to 
water operations would be expected to be passed on to consumers in the 
form of price changes. Consequently, for the reasons discussed above, 
we do not believe that the designation of critical habitat for the 
southwestern willow flycatcher will significantly or uniquely affect 
small government entities. As such, a Small Government Agency Plan is 
not required.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant federalism effects. A federalism assessment is not 
required. In keeping with Department of the Interior policies, we 
requested information from and coordinated development of this proposed 
critical habitat designation with appropriate

[[Page 60982]]

State resource agencies in all affected states.
    The designation of critical habitat in areas currently occupied by 
southwestern willow flycatcher imposes few restrictions beyond those 
currently in place and, therefore, has little incremental impact on 
State and local governments and their activities. The designation of 
critical habitat may have some benefit to the State and local resource 
agencies in that the areas essential to the conservation of this 
species are more clearly defined, and the primary constituent elements 
of the habitat necessary to the conservation of this species are 
specifically identified. While this definition and identification does 
not alter where and what federally sponsored activities may occur, it 
may assist local governments in long-range planning (rather than 
waiting for case-by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of the Endangered Species 
Act. The rule uses standard property descriptions and identifies the 
primary constituent elements within the proposed areas to assist the 
public in understanding the habitat needs of the southwestern willow 
flycatcher.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the southwestern willow flycatcher in 
a takings implications assessment. The takings implications assessment 
concludes that this designation of critical habitat for the 
southwestern willow flycatcher does not pose significant takings 
implications.

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

    This rule does not contain new or revised information collection 
for which OMB approval is required under the Paperwork Reduction Act. 
This rule will not impose recordkeeping or reporting requirements on 
State or local governments, individuals, businesses, or organizations. 
An agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This assertion was upheld in the courts 
of the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
Ore. 1995), cert. denied 116 S. Ct. 698 (1996).] However, when the 
range of the species includes States within the Tenth Circuit, such as 
that of the southwestern willow flycatcher, pursuant to the Tenth 
Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and 
Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will undertake a 
NEPA analysis for critical habitat designation. We have conducted a 
NEPA evaluation and notified the public of the draft document's 
availability on April 28, 2005 (70 FR 21988). The final document can be 
retrieved off the Internet at http://www/fws.gov/arizonaes/.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we have coordinated with 
federally-recognized Tribes on a Government-to-Government basis. We 
have excluded specific Tribal lands from critical habitat pursuant to 
section 4(b)(2) of the Act.

Relationship to Mexico

    We are not aware of any existing national regulatory mechanism in 
Mexico that would protect the southwestern willow flycatcher or its 
habitat. Although new legislation for wildlife is pending in Mexico, 
and Mexico has laws that could provide protection for rare species, 
there are enforcement challenges. Even if specific protections were 
available and enforceable in Mexico, the portion of the southwestern 
willow flycatcher's range in Mexico alone, in isolation, would not be 
adequate to ensure the long-term conservation of the species.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Arizona Ecological 
Services Fish and Wildlife Office (see ADDRESSES section), or retrieve 
this information from the Internet at http://www.fws.gov/arizonaes.

Author

    The primary author of this notice is the U.S. Fish and Wildlife 
Service (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

0
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.


0
2. In Sec.  17.95(b), revise the critical habitat for ``Southwestern 
Willow Flycatcher (Empidonax traillii extimus)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *

Southwestern Willow Flycatcher (Empidonax traillii extimus)

    (1) Critical habitat units are depicted for Apache, Cochise, Gila, 
Graham, Greenlee, Maricopa, Mohave, Pinal, Pima, and Yavapai counties 
in Arizona, Kern, Santa Barbara, San Bernardino, and San Diego counties 
in southern California, Clark County in southern Nevada, Grant, 
Hidalgo, Mora, Rio Arriba, Soccoro, Taos, and Valencia counties in New 
Mexico, and Washington County in southwestern Utah on the maps and as 
described below.
    (2) The primary constituent elements of critical habitat for 
southwestern willow flycatcher are:
    (i) Riparian habitat in a dynamic successional riverine environment 
(for nesting, foraging, migration, dispersal, and shelter) that 
comprises:
    (A) Trees and shrubs that include Gooddings willow (Salix 
gooddingii), coyote willow (Salix exigua), Geyers willow (Salix 
geyerana), arroyo willow (Salix lasiolepis), red willow (Salix 
laevigata), yewleaf willow (Salix taxifolia), pacific willow (Salix

[[Page 60983]]

lasiandra), boxelder (Acer negundo), tamarisk (Tamarix ramosissima), 
Russian olive (Eleagnus angustifolia), buttonbush (Cephalanthus 
occidentalis), cottonwood (Populus fremontii), stinging nettle (Urtica 
dioica), alder (Alnus rhombifolia, Alnus oblongifolia, Alnus 
tenuifolia), velvet ash (Fraxinus velutina), poison hemlock (Conium 
maculatum), blackberry (Rubus ursinus), seep willow (Baccharis 
salicifolia, Baccharis glutinosa), oak (Quercus agrifolia, Quercus 
chrysolepis), rose (Rosa californica, Rosa arizonica, Rosa multiflora), 
sycamore (Platinus wrightii), false indigo (Amorpha californica), 
Pacific poison ivy (Toxicodendron diversilobum), grape (Vitus 
arizonica), Virginia creeper (Parthenocissus quinquefolia), Siberian 
elm (Ulmus pumila), and walnut (Juglans hindsii);
    (B) Dense riparian vegetation with thickets of trees and shrubs 
ranging in height from 2 to 30 meters (m) (6 to 98 feet (ft). Lower-
stature thickets (2 to 4 m or 6 to 13 ft tall) are found at higher 
elevation riparian forests, and tall-stature thickets are found at 
middle- and lower-elevation riparian forests;
    (C) Areas of dense riparian foliage at least from the ground level 
up to approximately 4 m (13 ft) above ground or dense foliage only at 
the shrub level, or as a low, dense tree canopy;
    (D) Sites for nesting that contain a dense tree and/or shrub canopy 
(the amount of cover provided by tree and shrub branches measured from 
the ground) (i.e., a tree or shrub canopy with densities ranging from 
50 percent to 100 percent); or
    (E) Dense patches of riparian forests that are interspersed with 
small openings of open water or marsh, or shorter/sparser vegetation 
that creates a mosaic that is not uniformly dense. Patch size may be as 
small as 0.1 ha (0.25 ac) or as large as 70 ha (175 ac); and
    (ii) A variety of insect prey populations found within or adjacent 
to riparian floodplains or moist environments, including: flying ants, 
wasps, and bees (Hymenoptera); dragonflies (Odonata); flies (Diptera); 
true bugs (Hemiptera); beetles (Coleoptera); butterflies/moths and 
caterpillars (Lepidoptera); and spittlebugs (Homoptera).
    (3) Maps and legal descriptions for southwestern willow flycatcher 
critical habitat follow:
    (4) Bill Williams Management Unit.
    (i)

----------------------------------------------------------------------------------------------------------------
        Management unit               River          Start lat       Start lon        End lat         End lon
----------------------------------------------------------------------------------------------------------------
Bill Williams.................  Big Sandy River.       34.705270     -113.598290       34.479650     -113.618700
----------------------------------------------------------------------------------------------------------------


BILLING CODE 4310-55-P

[[Page 60984]]

    (ii) Bill Williams Management Unit Map follows:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.000
    

[[Page 60985]]


    (5) Kern Management Unit.
    (i)

----------------------------------------------------------------------------------------------------------------
        Management unit               River          Start lat       Start lon        End lat         End lon
----------------------------------------------------------------------------------------------------------------
Kern..........................  South Fork Kern        35.717690     -118.180890       35.668890     -118.339040
                                 River.
----------------------------------------------------------------------------------------------------------------


[[Page 60986]]

    (ii) Kern Management Unit Map follows:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.001
    

[[Page 60987]]


    (6) Little Colorado Management Unit.
    (i)

----------------------------------------------------------------------------------------------------------------
        Management unit               River          Start lat       Start lon        End lat         End lon
----------------------------------------------------------------------------------------------------------------
Little Colorado...............  Little Colorado        34.086800     -109.397000       34.003660     -109.456870
                                 River.
                                Little Colorado        34.003660     -109.456870       33.931370     -109.487290
                                 River East Fork.
                                Little Colorado        34.003660     -109.456870       33.958300     -109.516210
                                 River West Fork.
----------------------------------------------------------------------------------------------------------------


[[Page 60988]]

    (ii) Little Colorado Management Unit Map follows:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.002
    

[[Page 60989]]


    (7) Middle Gila/San Pedro Management Unit.
    (i)







----------------------------------------------------------------------------------------------------------------
        Management unit               River          Start lat       Start lon        End lat         End lon
----------------------------------------------------------------------------------------------------------------
Middle Gila/San Pedro.........  Gila River......       33.082830     -110.709340       32.981320     -110.778790
                                San Pedro River.       33.099950     -111.246310       32.252490     -110.335190
----------------------------------------------------------------------------------------------------------------


[[Page 60990]]

    (ii) Middle Gila/San Pedro Management Unit Map follows:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.003
    

[[Page 60991]]


    (8) Middle Rio Grande Management Unit.
    (i)







--------------------------------------------------------------------------------------------------------------------------------------------------------
                Management unit                                   River                      Start lat       Start lon        End lat         End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Middle Rio Grande..............................  Rio Grande--South segment--1...........       34.870940     -106.720440       34.294030     -106.843240
                                                 Rio Grande--South segment--2...........       34.241980     -106.898780       33.869720     -106.845540
                                                 Rio Grande--South segment--3...........       33.730610     -106.918770       33.605530     -107.032890
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 60992]]

    (ii) Middle Rio Grande Management Unit Map follows:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.004
    

[[Page 60993]]


    (9) Mojave Management Unit.
    (i)

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Management unit                                   River                      Start lat       Start lon        End lat         End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
Mojave.........................................  Deep Creek (incl. Mojave Fks Res)......       34.287310     -117.126850       34.340410     -117.245700
                                                 Holcomb Creek..........................       34.304920     -116.964650       34.287310     -117.126850
                                                 Mojave River...........................       34.470190     -117.254670       34.583870     -117.337400
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 60994]]

    (ii) Mojave Management Unit Map follows:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.005
    

[[Page 60995]]


    (10) Roosevelt Management Unit.
    (i)

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Management unit                                   River                      Start lat       Start lon        End lat         End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Roosevelt......................................  Salt River.............................       33.670900     -110.800840       33.626350     -110.964550
                                                 Tonto Creek............................       34.023900     -111.282800       33.785650     -111.256270
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 60996]]

    (ii) Roosevelt Management Unit Map follows:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.006
    

[[Page 60997]]


    (11) Salton Management Unit.
    (i)

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Management unit                                   River                      Start lat       Start lon        End lat         End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Salton.........................................  San Felipe Creek.......................       33.145510     -116.544860       33.184870     -116.623790
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (ii) San Diego Management Unit.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Management unit                                   River                      Start lat       Start lon        End lat         End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Diego......................................  Agua Hedionda Creek....................       33.156960     -117.224330       33.148330     -117.253480
                                                 Deluz Creek............................       33.428730     -117.319360       33.416570     -117.321050
                                                 Pilgrim Creek..........................       33.271930     -117.305790       33.241240     -117.335920
                                                 San Dieguito River.....................       33.120070     -116.853380       33.090540     -116.892610
                                                 San Luis Ray River--West segment.......       33.304240     -116.989540       33.202520     -117.389560
                                                 San Luis Rey River--East segment--1....       33.273480     -116.962270       33.295780     -116.978050
                                                 San Luis Rey River--East segment--2....       33.262670     -116.927970       33.260640     -116.944880
                                                 San Luis Rey River--East segment--3....       33.256180     -116.898390       33.256110     -116.907120
                                                 San Luis Rey River--East segment--4....       33.272450     -116.881990       33.271960     -116.878110
                                                 San Luis Rey River--East segment--5....       33.240720     -116.764750       33.270630     -116.828580
                                                 San Margarita River....................       33.432130     -117.197380       33.402580     -117.255860
                                                 Temecula Creek.........................       33.397690     -116.809070       33.426680     -116.847560
                                                 Temescal Creek.........................       33.177900     -116.848790       33.120070     -116.853380
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 60998]]

    (iii) Salton and San Diego Management Unit Maps follow:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.007
    

[[Page 60999]]


[GRAPHIC] [TIFF OMITTED] TR19OC05.008

    (12) Santa Ana Management Unit.
    (i)





--------------------------------------------------------------------------------------------------------------------------------------------------------
                Management unit                                   River                      Start lat       Start lon        End lat         End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Santa Ana......................................  Bear Creek.............................       34.242210     -116.977290       34.160970     -117.015100
                                                 Mill Creek.............................       34.076650     -116.844390       34.089290     -117.039560
                                                 Oak Glen Creek.........................       34.048340     -116.939470       34.052820     -116.986090
                                                 Santa Ana River--East segment..........       34.151300     -116.735070       34.119560     -117.090380
                                                 Santa Ana River--West segment..........       34.081720     -117.259830       34.019510     -117.368930
                                                 Waterman Canyon........................       34.186350     -117.272120       34.216970     -117.290940
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 61000]]

    (ii) Santa Ana Management Unit Map follows:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.009
    
    (13) Santa Ynez Management Unit.
    (i)





----------------------------------------------------------------------------------------------------------------
        Management unit               River          Start lat       Start lon        End lat         End lon
----------------------------------------------------------------------------------------------------------------
Santa Ynez....................  Santa Ynez River       34.597290     -120.174410       34.659670     -120.439490
----------------------------------------------------------------------------------------------------------------


[[Page 61001]]

    (ii) Santa Ynez Management Unit Map follows:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.010
    

[[Page 61002]]


    (14) Upper Gila Management Unit.
    (i)

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Management unit                                   River                      Start lat       Start lon        End lat         End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Gila.....................................  Gila River--East segment--1............       33.076740     -108.491160       33.004370     -108.560150
                                                 Gila River--East segment--2............       32.995070     -108.566320       32.987960     -108.570190
                                                 Gila River--East segment--3............       32.984180     -108.571800       32.982890     -108.573220
                                                 Gila River--East segment--4............       32.980550     -108.575780       32.977840     -108.577660
                                                 Gila River--East segment--5............       32.958940     -108.597440       32.958010     -108.599150
                                                 Gila River--East segment--6............       32.955270     -108.604210       32.795670     -108.597480
                                                 Gila River--Middle East segment........       32.727070     -108.675580       32.723890     -109.101250
                                                 Gila River--Middle West segment........       32.882390     -109.506890       33.094110     -110.056150
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 61003]]

    (ii) Upper Gila Management Unit Maps follow:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.011
    

[[Page 61004]]


[GRAPHIC] [TIFF OMITTED] TR19OC05.012


[[Page 61005]]


    (15) Upper Rio Grande Management Unit.
    (i)







--------------------------------------------------------------------------------------------------------------------------------------------------------
                Management unit                                   Rivers                     Start lat       Start lon        End lat         End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Rio Grande...............................  Coyote Creek...........................       36.193960     -105.230880       36.122910     -105.217570
                                                 Rio Grande--North segment..............       36.336150     -105.733810       36.090460     -106.066250
                                                 Rio Grande del Rancho..................       36.338610     -105.601060       36.254780     -105.579670
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 61006]]

    (ii) Upper Rio Grande Map Management Unit Map follows:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.013
    

[[Page 61007]]


    (16) Verde Management Unit.
    (i)







--------------------------------------------------------------------------------------------------------------------------------------------------------
                Management unit                                   River                      Start lat       Start lon        End lat         End lon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Verde..........................................  Verde River-North segment--1...........       34.750760     -112.017580       34.628670     -111.899680
                                                 Verde River-North segment--2...........       34.614280     -111.898960       34.465930     -111.781330
                                                 Verde River-South segment--1...........       34.282320     -111.685650       34.072320     -111.716420
                                                 Verde River-South segment--2...........       33.984470     -111.708580       33.944900     -111.682380
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 61008]]

    (ii) Verde Management Unit Map follows:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.014
    

[[Page 61009]]


    (17) Virgin River/Pahranagat Management Unit.
    (i)







----------------------------------------------------------------------------------------------------------------
        Management unit               River          Start lat       Start lon        End lat         End lon
----------------------------------------------------------------------------------------------------------------
Virgin........................  Virgin River....       37.132920     -113.422990       36.666210     -114.310410
----------------------------------------------------------------------------------------------------------------

    (ii) Virgin River/Pahranagat Management Unit Map follows:
    [GRAPHIC] [TIFF OMITTED] TR19OC05.015
    

    Dated: September 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-20144 Filed 10-18-05; 8:45 am]
BILLING CODE 4310-55-C