[Federal Register Volume 76, Number 157 (Monday, August 15, 2011)]
[Proposed Rules]
[Pages 50542-50629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19713]



[[Page 50541]]

Vol. 76

Monday,

No. 157

August 15, 2011

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 Revised 
Critical Habitat for Southwestern Willow Flycatcher; Proposed Rule

  Federal Register / Vol. 76, No. 157 / Monday, August 15, 2011 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2011-0053; MO 92210-0-0009]
RIN 1018-AX43


Endangered and Threatened Wildlife and Plants; Designation of 
Revised Critical Habitat for Southwestern Willow Flycatcher

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise critical habitat for the southwestern willow flycatcher 
(Empidonax traillii extimus) (flycatcher) under the Endangered Species 
Act of 1973, as amended (Act). In total, approximately 3,364 km stream 
kilometers (2,090 stream miles) are being proposed for designation as 
critical habitat. These areas are being proposed as stream segments, 
with the lateral extent including the riparian areas and streams that 
occur within the 100-year floodplain or flood-prone areas. The proposed 
critical habitat is located on a combination of Federal, State, Tribal, 
and private lands in Imperial, Inyo, Kern, Los Angeles, Mono, Orange, 
Riverside, Santa Barbara, San Bernardino, San Diego, and Ventura 
Counties in California; Clark, Lincoln, and Nye Counties in southern 
Nevada; Kane, San Juan, and Washington Counties in southern Utah; 
Alamosa, Conejos, Costilla, La Plata, and Rio Grande Counties in 
southern Colorado; Apache, Cochise, Gila, Graham, Greenlee, La Paz, 
Maricopa, Mohave, Pima, Pinal, Santa Cruz, Yavapai, and Yuma Counties 
in Arizona; and Catron, Cibola, Dona Ana, Grant, Hidalgo, McKinley, 
Mora, Rio Arriba, Santa Fe, San Juan, Sierra, Soccoro, Taos, and 
Valencia Counties in New Mexico.

DATES: We will accept comments received or postmarked on or before 
October 14, 2011. We must receive requests for public hearings, in 
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT 
section by September 29, 2011.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Enter Keyword or ID box, enter Docket No. 
FWS-R2-ES-2011-0053, which is the docket number for this rulemaking.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2011-053; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S. 
Fish and Wildlife Service, Arizona Ecological Services Office, 2321 
West Royal Palm Rd., Suite 103, Phoenix, AZ 85021; telephone 602-242-
0210; facsimile 602-242-2513. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned government agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of southwestern willow flycatcher 
habitat;
    (b) What areas that were occupied at the time of listing that 
contain features essential to the conservation of the species should be 
included in the designation and why;
    (c) What areas not occupied at the time of listing that meet our 
criteria for being essential to the conservation of the species should 
be included in the designation and why;
    (d) Special management considerations or protection that may be 
needed for the physical or biological features essential to the 
conservation of the species in the critical habitat areas we are 
proposing, including managing for the potential effects of climate 
change;
    (e) Stream segments, many of which are highlighted in the 
Southwestern Willow Flycatcher Recovery Plan (Recovery Plan) (Service 
2002) and included in this proposed rule, that are not now known to 
have flycatcher nesting territories or known to only have few nesting 
flycatchers that may be capable of being improved for flycatcher 
recovery purposes. We specifically seek information about streams 
within the Amargosa, Salton, Mohave, Powell, San Juan, Santa Cruz, and 
Hassayampa and Agua Fria Management Units. Please provide information 
on flycatcher distribution and abundance, habitat quality, habitat 
locations, habitat improvement projects, management actions needed to 
improve habitat, habitat quality limitations, habitat recovery 
potential, and any other flycatcher or flycatcher-habitat-specific 
information, and;
    (f) Flycatcher habitat suitability in specific areas within the 
Santa Ana and San Diego Management Units in southern California. Please 
provide information on flycatcher habitat suitability for recovery at 
the following areas: (1) Entirety of Temescal Wash including Alberhill 
Creek in Riverside County; (2) entirety of Murrieta Creek in Riverside 
County; (3) Potrero Creek near the city of Beaumont in Riverside 
County; (4) Cajon Creek from Lone Pine Canyon to California State 
Highway 138 in San Bernardino County; and (5) Tijuana River from Dairy 
Mart Road to the Tijuana River Estuary in San Diego County.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the flycatcher, the features essential to its 
conservation and the areas proposed as critical habitat.
    (5) Any probable economic, national security, environmental, 
cultural, or other relevant impacts of designating any area that may be 
included in the final designation; in particular, any impacts on small 
entities, and the benefits of including or excluding areas that exhibit 
these impacts.
    (6) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act, in particular.

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    (a) For specific lands that we should consider for exclusion under 
section 4(b)(2) of the Act, please provide us management plans, 
conservation easements, agreements, Habitat Conservation Plans (HCP), 
or other appropriate information, which describe the commitment and 
assurances of protection of the physical or biological features of 
flycatcher critical habitat; property boundaries; flycatcher status, 
distribution, and abundance; and management actions to protect the 
physical or biological features of flycatcher habitat.
    (b) For lands we evaluated and excluded from critical habitat under 
section 4(b)(2) of the Act during the 2005 flycatcher critical habitat 
designation and those who wish to seek exclusion for this re-
designation, please resubmit your request. In addition to your request, 
please include any updated information that pertains to the commitment 
and assurances of protection of flycatcher habitat; the physical or 
biological features of flycatcher critical habitat; property 
boundaries; flycatcher status, distribution, and abundance; and 
management actions to protect the physical or biological features of 
flycatcher habitat. Include the specific results of implementing these 
management plans since our 2005 flycatcher critical habitat 
designation.
    (c) Information concerning the benefits of excluding or retaining 
lands we identify in this proposed critical habitat rule under 
consideration for exclusion under section 4(b)(2) of the Act. We 
specifically seek information about the possible exclusion of Elephant 
Butte Reservoir; areas within the operating pool of the reservoir may 
be subject to exclusion under 4(b)(2) of the Act if we determine that 
the benefits of excluding the area due to potential impacts to water 
operations outweigh the benefits to the subspecies of including the 
area as critical habitat.
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section. We will post your entire comment--including your 
personal identifying information--on http://www.regulations.gov. You 
may request at the top of your document that we withhold personal 
information such as your street address, phone number, or e-mail 
address from public review; however, we cannot guarantee that we will 
be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Arizona Ecological Services Office in Phoenix, 
Arizona (see FOR FURTHER INFORMATION CONTACT).

Background

    It is our intent to include only those topics directly relevant to 
the designation of critical habitat for the southwestern willow 
flycatcher (flycatcher) in this proposed rule. Background information 
on the flycatcher can be found in the final flycatcher critical habitat 
rule published in the Federal Register on October 19, 2005 (70 FR 
60886); our October 12, 2004, proposed critical habitat rule (69 FR 
60706); the Southwestern Willow Flycatcher Recovery Plan (Recovery 
Plan) (Service 2002); our first flycatcher critical habitat 
designation, published July 22, 1997 (62 FR 39129), and August 20, 1997 
(62 FR 44228); the final flycatcher listing rule (60 FR 10694; February 
27, 1995); the 10-year flycatcher study in central Arizona (Paxton et 
al. 2007a); the 2007 rangewide status report (Durst et al. 2008); and 
flycatcher survey protocol and natural history summary (Sogge et al. 
2010). Other reports can be retrieved from the U.S. Geological Survey's 
(USGS) flycatcher site at http://sbsc.wr.usgs.gov/cprs/research/projects/swwf. The current 2005 critical habitat rule remains in effect 
while this rulemaking process proceeds.
    The flycatcher is a small, insect-eating, neotropical migrant bird, 
from the taxonomic order Passeriformes. It grows to about 15 
centimeters (5.8 inches) in length. The flycatcher is one of four 
subspecies of the willow flycatcher currently recognized (Hubbard 1987, 
pp. 3-6; Unitt 1987, pp. 137-144), although Browning (1993, p. 248) 
suggests a possible fifth subspecies (Empidonax traillii campestris) in 
the central and midwestern United States. As an insect-eating 
generalist (Service 2002, p. 26), the flycatcher eats a wide range of 
invertebrate prey including flying, and ground- and vegetation-
dwelling, insect species of terrestrial and aquatic origins (Drost et 
al. 2003, pp. 96-102). The flycatcher spends the winter in locations 
such as southern Mexico, Central America, and probably South America 
(Ridgely and Gwynne 1989, p. 303; Stiles and Skutch 1989, pp. 321-322; 
Howell and Webb 1995, pp. 496-497; Unitt 1997, pp. 70-73; Koronkiewicz 
et al. 1998, p. 12; Unitt 1999, p. 14).
    All willow flycatcher subspecies spend time migrating and breeding 
in the United States from April to September. Use of riparian habitats 
along major drainages in the Southwest during migration has been 
documented (Sogge et al. 1997, pp. 3-4; Yong and Finch 1997, p. 253; 
Johnson and O'Brien 1998, p. 2; McKernan and Braden 1999, p. 17; 
Koronkiewicz et al. 2004, pp. 9-11). Many of the willow flycatchers 
found migrating are detected in riparian habitats or patches (small 
areas of riparian vegetation) that would be unsuitable for nest 
placement (the vegetation structure is too short or sparse, or the 
patch of vegetation is too small). In these drainages migrating 
flycatchers may use a variety of riparian habitats, including ones 
dominated by native or exotic plant species, or mixtures of both 
(Service 2002, p. E-3). Willow flycatchers, like most small, migratory, 
insect-eating birds, require food-rich stopover areas in order to 
replenish energy reserves and continue their northward or southward 
migration (Finch et al. 2000, pp. 71, 78, and 79; Service 2002, pp. E-3 
and 42). Migration stopover areas are likely critically important for 
flycatcher productivity and survival (Sogge et al. 1997, p. 13; Yong 
and Finch 1997, p. 253; Service 2002, pp. E-3,19).
    The historical breeding range of the flycatcher includes southern 
California, southern Nevada, southern Utah, Arizona, New Mexico, 
western Texas, southwestern Colorado, and extreme northwestern Mexico. 
The flycatcher's current range is similar to the historical range, but 
the quantity of suitable habitat within that range is reduced from 
historical levels (Service 2002, pp. 7-10).
    The known geographical area historically occupied by this 
flycatcher subspecies was once larger (Service 2002, pp. 7-10). 
Historical records described nesting birds in southern California, 
Nevada, Utah; Arizona and New Mexico; western Texas; southwestern 
Colorado; and extreme northwestern Mexico (Hubbard 1987, pp. 6-10; 
Unitt 1987, pp. 144-152; Browning 1993, pp. 248, 250). At the time of 
listing in February 1995 (60 FR 10694), the distribution and abundance 
of nesting flycatchers, their natural history, and areas occupied by 
nonbreeding, migrating, and dispersing flycatchers were not well known. 
In February 1995, 359 territories were

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known only from California, Arizona, and New Mexico. Unitt (1987, p. 
156) estimated the entire population was, ``well under 1,000 pairs, 
more likely 500,'' and 230 to 500 territories were estimated to exist 
in the July 23, 1993, flycatcher listing proposal (58 FR 39495, p. 
39498).
    At the time of listing, breeding sites in California, Nevada, Utah, 
and Colorado described by Unitt (1987, pp. 149-152) were adopted as the 
subspecies' northern boundary. However, the collection and analysis of 
genetic material across this part of the bird's range has since refined 
this boundary (Paxton 2000, pp. 3, 18-20), and reduced the extent of 
the northern boundary of this southwestern subspecies in Utah and 
Colorado (Service 2002, Figure 3). Territories once believed to be held 
by southwestern willow flycatchers in Utah and Colorado are now more 
accurately known to be occupied by a different, non-listed willow 
flycatcher subspecies. As a result, the southwestern subspecies' range 
only occurs in the southernmost portions of Utah and Colorado. This 
genetic work also confirmed the identity of southwestern willow 
flycatcher subspecies throughout the rest of its range.
    The USGS has continued to collect genetic information to help 
refine the northern boundary of the subspecies' range in Utah, 
Colorado, and New Mexico (Paxton et al. 2007b). They reconfirmed the 
genetic markers that identify differences among flycatcher subspecies, 
with breeding sites clustering into two groups separated approximately 
along the currently recognized boundary; however, they noted a distinct 
genetic boundary line between the subspecies does not exist (Paxton et 
al. 2007b, p. 17). Instead of a distinct boundary, they suggested that 
the boundary should be thought of as a ``region of genetic overlap'' 
(Paxton et al. 2007b, p. 17). They also described that this genetic 
overlap region will likely widen and contract over time based upon 
habitat changes (Paxton et al. 2007b, p. 17). An additional 
complication in refining the subspecies' northern boundary is that this 
region is sparsely populated with breeding flycatchers, and therefore 
only minimal information is available that would help narrow down the 
location of a boundary (Paxton et al. 2007b, p. 16). We continue to 
seek out territories and collect genetic samples to further our 
understanding of this area, but we currently recognize the northern 
geographic boundary of the flycatcher as described in the Recovery Plan 
(Service 2002, Figures 3, 4).
    The flycatcher currently breeds in areas from near sea level to 
over 2,600 meters (m) (8,500 feet [ft]) (Durst et al. 2008, p. 14) in 
vegetation alongside rivers, streams, or other wetlands (riparian 
habitat). It establishes nesting territories, builds nests, and forages 
where mosaics of relatively dense and expansive growths of trees and 
shrubs are established, near or adjacent to surface water or underlain 
by saturated soil (Sogge et al. 2010, p. 4). Habitat characteristics 
such as dominant plant species, size and shape of habitat patch, tree 
canopy structure, vegetation height, and vegetation density vary widely 
among breeding sites. Nests are typically placed in trees where the 
plant growth is most dense, where trees and shrubs have vegetation near 
ground level, and where there is a low-density canopy. Some of the more 
common tree and shrub species currently known to comprise nesting 
habitat include Goodings willow (Salix gooddingii), coyote willow 
(Salix exigua), Geyers willow (Salix geyerana), arroyo willow (Salix 
lasiolepis), red willow (Salix laevigata), yewleaf willow (Salix 
taxifolia), boxelder (Acer negundo), tamarisk (also known as saltcedar, 
Tamarix ramosissima), and Russian olive (Eleagnus angustifolia) 
(Service 2002, p. D-2). While there are exceptions, generally 
flycatchers are not found nesting in areas without willows, tamarisk, 
or both.
    A breeding site is simply an area along the river that has been 
described while surveying for flycatcher territories (Service 2002, p. 
C-4; Sogge et al. 2010, p. 34). A breeding site can contain none, only 
one, or many territories. However, within this proposed rule, we refer 
to breeding sites as areas where flycatcher territories were detected. 
A territory is defined as a discrete area defended by a resident single 
flycatcher or pair of flycatchers within a single breeding season 
(Sogge et al. 2010, p. 34). This is usually evidenced by the presence 
of a singing male, and possibly one or more mates (Sogge et al. 2010, 
p. 34).
    At the end of 2007, 1,299 flycatcher breeding territories were 
estimated to occur throughout southern California, southern Nevada, 
southern Utah, southern Colorado, Arizona, and New Mexico (Durst et al. 
2008, p. 4). Some of the flycatcher breeding sites having the highest 
number of territories are found along the middle Rio Grande and upper 
Gila River in New Mexico, and Roosevelt Lake and the San Pedro and Gila 
River confluence area in central Arizona.
    Flycatchers are believed to exist and interact as groups of 
metapopulations (Service 2002, p. 72). A metapopulation is a group of 
geographically separate flycatcher breeding populations connected to 
each other by immigration and emigration (Service 2002, p. 72). 
Flycatcher populations are most stable where many connected sites or 
large populations exist (Service 2002, p. 72). Metapopulation 
persistence or stability is more likely to improve by adding more 
breeding sites than with the addition of territories to existing sites 
(Service 2002, p. 72). This would distribute birds across a greater 
geographical range, minimize risk of simultaneous catastrophic 
population loss, and avoid genetic isolation (Service 2002, p. 72).
    Flycatchers have higher site fidelity (to a local area) than nest 
fidelity (to a specific nest location) and can move among sites within 
stream drainages and between drainages (Kenwood and Paxton 2001, pp. 
29-31). Within-drainage movements are more common than between-drainage 
movements (Kenwood and Paxton 2001, p. 18). Juvenile flycatchers were 
the group of flycatchers that moved (dispersed) the farthest to new and 
distant breeding sites from the area where they hatched (Paxton et al. 
2007a, p. 74). The USGS's 10-year flycatcher study in central Arizona 
(Paxton et al. 2007a) is the key movement study that has generated 
these conclusions, augmented by other flycatcher banding and re-
sighting studies (Sedgwick 2004, p. 1103; McLeod et al. 2008, p. 110).
    The difference in flycatcher dispersal distance among different 
study areas and regions reflects the varying spatial arrangement of 
breeding habitat, illustrating how dispersal tendencies are influenced 
by the geographic distribution of habitat at the stream segment, 
drainage, and landscape scales (Paxton et al. 2007a, p. 75). While 
USGS' study focused its effort in central Arizona at two of the largest 
breeding sites, it also included multiple auxiliary sites (up to 444 km 
or 275 mi away), along with other researchers and surveyors across the 
flycatcher's range paying attention to whether flycatchers were banded 
or not. As a result, the broad scope of the study of flycatcher 
movement extends broadly beyond a localized, regional area, where 
habitat configuration dominates the results.
    Banded flycatchers from season-to-season (and sometimes within 
season) were recorded moving from 50 m (150 feet) to 444 km (275 mi) to 
try and nest. Some long-distance season-to-season movement records 
captured flycatchers moving from the Basin and Mohave Recovery Unit to 
the Lower Colorado Recovery Unit and from the Lower

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Colorado Recovery Unit to the Gila Recovery Unit.
    The USGS assimilated all of the flycatcher movement information and 
concluded that rapid colonization and increased metapopulation 
stability could be accomplished by establishing breeding sites within 
30 to 40 km (18 to 25 mi) of each other (Paxton et al. 2007a, p. 4). 
Flycatchers at breeding sites configured in this way would be able to 
regularly disperse to new breeding sites or move between known breeding 
sites within the same year or from year-to-year. This proximity of 
sites would increase the connectivity and stability of the 
metapopulation and smaller, more distant breeding sites.
    Because the breeding range of the flycatcher encompasses a broad 
geographic area with much site variation, management of recovery is 
approached in the Recovery Plan by dividing the flycatcher's range into 
6 Recovery Units, each of which are further subdivided into 4 to 7 
Management Units (for a total of 32 Management Units) (Service, pp. 61-
63). This provides an organizational strategy to ``characterize 
flycatcher populations, structure recovery goals, and facilitate 
effective recovery actions that should closely parallel the physical, 
biological, and logistical realities on the ground'' (Service 2002, p. 
61). Recovery goals are recommended for 29 of the 32 Management Units 
(see Methodology Overview section). Recovery Units are defined based on 
large watershed and hydrologic units. Within each Recovery Unit, 
Management Units are based on watershed or major drainage boundaries at 
the Hydrologic Unit Code Cataloging Unit level (standard watershed 
boundaries which have already been defined for other purposes). The 
``outer'' boundaries of some Recovery Units and Management Units were 
defined by the flycatcher's range boundaries. This proposed designation 
of critical habitat is organized geographically within these Recovery 
Units and Management Units (see ``Methodology Overview'' section 
below).
    The Recovery Plan (Service 2002) provides reasonable actions 
recommended to recover the flycatcher and provides two criteria, either 
of which can be met, in order to consider downlisting the species to 
threatened (Service 2002, pp. 77-78). The first alternative for 
downlisting requires reaching a total population of 1,500 flycatcher 
territories geographically distributed among all Recovery Units and 
maintained for 3 years with habitat protections (Service 2002, pp. 77-
78). Habitat protections include a variety of options such as HCPs, 
conservation easements, or safe harbor agreements. The second 
alternative approach for downlisting calls for reaching a population of 
1,950 territories also strategically distributed among all Recovery and 
Management Units for 5 years without additional habitat protection 
(Service 2002, pp. 77-78).
    In order to delist this flycatcher subspecies (to remove it from 
the List of Endangered and Threatened Wildlife and Plants), the 
Recovery Plan recommends that a minimum of 1,950 territories are 
geographically distributed among all Recovery and Management Units, and 
that twice the amount of habitat is provided to maintain these 
territories over time. Second, these habitats must be protected from 
threats to assure maintenance of these populations and habitat for the 
foreseeable future through development and implementation of 
conservation management agreements (Service 2002, pp. 79-80). Third, 
all of these delisting criteria must be accomplished and their 
effectiveness demonstrated for a period of 5 years (Service 2002, pp. 
79-80). This critical habitat proposal is structured to allow the 
Service to work toward achieving the numerical, geographical, and 
habitat-related recovery goals.
    Twice the amount of suitable habitat is needed to support the 
numerical territory goals, because the long-term persistence of 
flycatcher populations cannot be assured by protecting only those 
habitats in which flycatchers currently breed (Service 2002, p. 80). It 
is important to recognize that most flycatcher breeding habitats are 
susceptible to future changes in site hydrology (natural or human-
related), human impacts such as development or fire, and natural 
catastrophic events such as flood or drought (Service 2002, p. 80). 
Furthermore, as the vegetation at sites matures, it can lose the 
structural characteristics that make it suitable for breeding 
flycatchers (Service 2002, p. 80). These and other factors can destroy 
or degrade breeding sites, such that one cannot expect any given 
breeding site to remain suitable in perpetuity (Service 2002, p. 80). 
Thus, it is necessary to have additional suitable habitat available to 
which flycatchers, displaced by such habitat loss or change, can 
readily move (Service 2002, p. 80).

Previous Federal Actions

    The flycatcher was listed as endangered on February 27, 1995 (60 FR 
10694). On July 22, 1997, we published a final critical habitat 
designation for the flycatcher along 964 river km (599 river mi) in 
Arizona, California, and New Mexico (62 FR 39129). We published a 
correction notice on August 20, 1997, on the lateral extent of critical 
habitat (62 FR 44228).
    As a result of a 1998 lawsuit from the New Mexico Cattlegrower's 
Association, on October 19, 2005 (70 FR 60886), we published a revised 
final flycatcher critical habitat rule for portions of Arizona, 
California, New Mexico, Nevada, and Utah, totaling approximately 48,896 
ha (120,824 ac) or 1,186 km (737 mi). River segments were designated as 
critical habitat in 15 of the 32 Management Units described in the 
Recovery Plan (Service 2002, p. 63).
    We were sued by the Center for Biological Diversity over our 2005 
critical habitat rule, and on July 13, 2010, we agreed to redesignate 
critical habitat. The resulting settlement left the existing critical 
habitat designation from 2005 in effect, and required that we deliver a 
proposed rule for new revised critical habitat to the Federal Register 
by July 31, 2011, and a final rule by July 31, 2012.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species; and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided under the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the

[[Page 50546]]

requirement that Federal agencies ensure, in consultation with the 
Service, that any action they authorize, fund, or carry out is not 
likely to result in the destruction or adverse 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 the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner seeks or requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) would apply, but even in the event of a destruction or adverse 
modification finding, the obligation of the Federal action agency and 
the landowner is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time it was listed 
must contain physical or biological features which are essential to the 
conservation of the species and which may require special management 
considerations or protection. Critical habitat designations identify, 
to the extent known using the best scientific and commercial data 
available, those physical or biological features that are essential to 
the conservation of the species (such as space, food, cover, and 
protected habitat), focusing on the principal biological or physical 
constituent elements (primary constituent elements) within an area that 
are essential to the conservation of the species (such as roost sites, 
nesting grounds, seasonal wetlands, water quality, tide, soil type). 
Primary constituent elements are the elements of physical or biological 
features that, when laid out in the appropriate quantity and spatial 
arrangement to provide for a species' life-history processes, are 
essential to the conservation of the species.
    Under the Act, we can designate critical habitat in areas outside 
the geographical area occupied by the species at the time it is listed, 
upon a determination that such areas are essential for the conservation 
of the species. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species. When the best available scientific data do not demonstrate 
that the conservation needs of the species require such additional 
areas, we will not designate critical habitat in areas outside the 
geographical area occupied by the species. An area currently occupied 
by the species but that was not occupied at the time of listing may, 
however, be essential to the conservation of the species and may be 
included in the critical habitat designation.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we determine which areas should be designated as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include the recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge.
    We recognize that critical habitat designated at a particular point 
in time may not include all of the habitat areas that we may later 
determine are necessary for the recovery of the species. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may not be required for 
recovery of the species. Areas that are important to the conservation 
of the species, both inside and outside the critical habitat 
designation, will continue to be subject to: (1) Conservation actions 
implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. 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, HCPs, or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Physical or Biological Features

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species (in this case a subspecies) 
at the time of listing to designate as critical habitat, we consider 
the physical or biological features essential to the conservation of 
the flycatcher and which may require special management considerations 
or protection. These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features required for 
the flycatcher from studies of this subspecies' habitat, ecology, and 
life history as described below. The most comprehensive, current, and 
thorough documents are the Recovery Plan (Service 2002, Appendix D), 
Survey Protocol and Natural History Summary (Sogge et al. 2010), and 
10-year central Arizona ecology study (Paxton et al. 2007a).
    In general, the areas proposed for designation as critical habitat 
are designed to provide sufficient riparian habitat for breeding, non-
breeding, territorial, dispersing, and migrating flycatchers in order 
to reach the

[[Page 50547]]

geographic distribution, abundance, and habitat-related recovery goals 
described in the Recovery Plan (Service 2002, pp. 77-85). We are not 
proposing any areas as critical habitat solely because they serve as a 
migration habitat. Instead, the areas we are proposing serve a variety 
of functions, including habitat to be used by migrating flycatchers. 
The habitat components important for conservation of this subspecies 
were determined from studies of flycatcher behavior and habitat use 
throughout the bird's range (see Background section).
    In general, the physical or biological features of critical habitat 
for nesting flycatchers are found in the riparian areas within the 100-
year floodplain or flood-prone area. Flycatchers use riparian habitat 
for feeding, sheltering, and cover while breeding, migrating, and 
dispersing. It is important to recognize that flycatcher habitat is 
ephemeral in its presence, and its distribution is dynamic in nature 
because riparian vegetation is prone to periodic disturbance (such as 
flooding) (Service 2002, p. 17). Even with the dynamic shifts in 
habitat conditions, one or more of the primary constituent elements 
described below are found throughout each of the units that we are 
proposing as critical habitat.
    Flycatcher habitat may become unsuitable for breeding through 
maturation or disturbance of the riparian vegetation, but it may remain 
suitable for use during migration or for foraging. This situation may 
be only temporary, and vegetation may cycle back into suitability as 
breeding habitat (Service 2002, p. 17). Therefore, it is not practical 
to assume that any given breeding habitat area will remain suitable 
over the long term or persist in the same location (Service 2002, p. 
17). Over a 5-year period, flycatcher habitat can, in optimum 
conditions, germinate, be used for migration or foraging, continue to 
grow, and eventually be used for nesting. Thus, flycatcher habitat that 
is not currently suitable for nesting at a specific time, but is useful 
for foraging and migration, can still be important for flycatcher 
conservation. Feeding sites and migration stopover areas are important 
components for the flycatcher's survival, productivity, and health, and 
they can also be areas where new breeding habitat develops as nesting 
sites are lost or degraded (Service 2002, p. 42). These successional 
cycles of habitat change are important for long-term persistence of 
flycatcher habitat.
    Based on our current knowledge of the life history and ecology of 
the flycatcher and the relationship of its life-history functions to 
its habitat, as summarized in the ``Background'' section above and in 
more detail in the Recovery Plan (Service 2002, Chapter II), it is 
important to recognize the interconnected nature of the physical or 
biological features that provide the primary constituent elements of 
critical habitat. Specifically, we consider the relationships between 
river function, hydrology, floodplains, aquifers, and plant growth, 
which form the environment essential to the conservation of the 
flycatcher.
    The hydrologic regime (stream flow pattern) and supply of (and 
interaction between) surface and subsurface water is a driving factor 
in the long-term maintenance, growth, recycling, and regeneration of 
flycatcher habitat (Service 2002, p. 16). As streams reach the 
lowlands, their gradients typically flatten and surrounding terrain 
opens into broader floodplains (Service 2002, p. 32). In these 
geographic settings, the stream-flow patterns (frequency, magnitude, 
duration, and timing) will provide the necessary stream-channel 
conditions (wide configuration, high sediment deposition, periodic 
inundation, recharged aquifers, lateral channel movement, and elevated 
groundwater tables throughout the floodplain) that result in the 
development of flycatcher habitat (Poff et al. 1997, pp. 770-772; 
Service 2002, p. 16). Allowing the river to flow over the width of the 
floodplain, when overbank flooding occurs, is integral to allow 
deposition of fine moist soils, water, nutrients, and seeds that 
provide the 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 the vegetation that provides flycatcher habitat and 
micro-habitat conditions (Service 2002, p. 16). The interconnected 
interaction between groundwater and surface water contributes to the 
quality of riparian vegetation community (structure and plant species) 
and will influence the germination, density, vigor, composition, and 
the ability of vegetation to regenerate and maintain itself (Arizona 
Department of Water Resources 1994, pp. 31-32).
    In many instances, flycatcher breeding sites occur along streams 
where human impacts are minimized enough to allow more natural 
processes to create, recycle, and maintain flycatcher habitat. However, 
there are also breeding sites that 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 (Service 2002, p. D-15). Although the waters provided to these 
habitats might be considered ``artificial,'' they are often important 
for maintaining the habitat in appropriate condition for breeding 
flycatchers within the existing environment.
    In considering the specific physical or biological features 
essential for the conservation of the flycatcher, it is also important 
to consider longer-term processes that may influence habitat changes 
over time, such as climate change. Climate change is a long-term shift 
in the statistics of the weather (including its averages). In its 
Fourth Assessment Report, the Intergovernmental Panel on Climate Change 
(IPCC) defines climate change as, ``a change in the state of the 
climate that can be identified by changes in the mean and/or 
variability of its properties and that persists for an extended period, 
typically decades or longer'' (Solomon et al. 2007, p. 943). Changes in 
climate already are occurring. Examples of observed changes in the 
physical environment include an increase in global average sea level 
and declines in mountain glaciers and average snow cover in both the 
northern and southern hemispheres (IPCC 2007a, p. 30). At continental, 
regional and ocean basin scales, observed changes in long-term trends 
of other aspects of climate include: A substantial increase in 
precipitation in eastern parts of North American and South America, 
northern Europe, and northern and central Asia; declines in 
precipitation in the Mediterranean, southern Africa, and parts of 
southern Asia; and an increase in intense tropical cyclone activity in 
the North Atlantic since about 1970 (IPCC 2007a, p. 30).
    Projections of climate change globally and for broad regions 
through the 21st century are based on the results of modeling efforts 
using state-of-the-art Atmosphere-Ocean General Circulation Models and 
various greenhouse gas emissions scenarios (Meehl et al. 2007, p. 753; 
Randall et al. 2007, pp. 596-599). As is the case with all models, 
there is uncertainty associated with projections due to assumptions 
used and other features of the models. However, despite differences in 
assumptions and other parameters used in climate change models, the 
overall surface air temperature trajectory is one of increased warming 
in comparison to current conditions (Meehl et al. 2007, p. 762; Prinn 
et al. 2011, p. 527). Among the IPCC's projections for the 21st century 
are the following: (1) It is virtually certain there will be warmer

[[Page 50548]]

and more frequent hot days and nights over most of the earth's land 
areas; (2) it is very likely there will be increased frequency of warm 
spells and heat waves over most land areas, and the frequency of heavy 
precipitation events will increase over most areas; and (3) it is 
likely that increases will occur in the incidence of extreme high sea 
level (excludes tsunamis), intense tropical cyclone activity, and the 
area affected by droughts in various regions of the world (IPCC 2007b, 
p. 8).
    Changes in climate can have a variety of direct and indirect 
ecological impacts on species, and can exacerbate the effects of other 
threats. Climate-associated environmental changes to the landscape, 
such as decreased stream flows, increased water temperatures, reduced 
snowpack, and increased fire frequency, affect species and their 
habitats. The vulnerability of a species to climate change impacts is a 
function of the species' sensitivity to those changes, its exposure to 
those changes, and its capacity to adapt to those changes. The best 
available science is used to evaluate the species' response to these 
stressors. We recognize that future climate change may present a 
particular challenge evaluating habitat conditions for species like the 
flycatcher because the additional stressors may push species beyond 
their ability to survive in their present location.
    Exactly how climate change will affect precipitation in the 
specific areas with flycatcher habitat is uncertain. However, 
consistent with recent observations of regional effects of climate 
change, the projections presented for the Southwest predict warmer, 
drier, and more drought-like conditions (Hoerling and Eischeid 2007, p. 
19; Seager et al. 2007, p. 1181). For example, climate simulations of 
the Palmer Drought Severity Index (PSDI) (a calculation of the 
cumulative effects of precipitation and temperature on surface moisture 
balance) for the Southwest for the periods of 2006 to 2030 and 2035 to 
2060 show an increase in drought severity with surface warming. 
Additionally, drought still increases even during wetter simulations 
because of the effect of heat-related moisture loss through evaporation 
and evapotranspiration (Hoerling and Eischeid 2007, p. 19). Annual mean 
precipitation is likely to decrease in the Southwest, as is the length 
of snow season and snow depth (IPCC 2007b, p. 887). Most models project 
a widespread decrease in snow depth in the Rocky Mountains and earlier 
snowmelt (IPCC 2007b, p. 891). In summary, we expect that climate 
change will result in a warmer, drier climate, and reduced surface 
water across the flycatcher's range.
    In the recent past, drought has had both negative and positive 
effects on breeding flycatchers and their habitat, which can provide 
insight into how climate change may affect flycatchers and flycatcher 
habitat. For example, the extreme drought of 2002 caused near complete 
reproductive failure of the 146 flycatcher territories at Roosevelt 
Lake in central Arizona (Smith et al. 2003, pp. 8, 10), and caused a 
dramatic rise in the prevalence of non-breeding and unpaired 
flycatchers (Paxton et al. 2007a, p. 4). While extreme drought during a 
single year can generate impacts to breeding success, drought can also 
have localized short-term benefits in some regulated environments. For 
instance, at some reservoirs (such as Roosevelt Lake, Arizona, and Lake 
Isabella, California), drought led to reduced water storage, which 
increased the exposure of wet soils at the lake's perimeter. Continued 
drought in those areas allowed the exposed areas to grow vegetation and 
become new flycatcher nesting habitat (Ellis et al. 2008, p. 44). These 
short-term and localized habitat increases are not likely sustainable 
with persistent drought or long-term predictions of a drier 
environment, because of the overall importance of the presence of 
surface water and elevated groundwater needed to grow dense riparian 
forests for flycatcher habitat. As a result, we expect long-term 
climate trends associated with a drier climate to have an overall 
negative effect on the available rangewide habitat for flycatchers.
    Considering these issues and other information regarding the 
biology and ecology of the species, we have determined that the 
flycatcher requires the essential physical or biological features 
described below.

Space for Individual and Population Growth and for Normal Behavior

    Streams of lower gradient and more open valleys with a wide and 
broad floodplain are the geological settings that are known to support 
flycatcher breeding habitat from near sea level to about 2,600 m (8,500 
ft) in elevation in southern California, southern Nevada, southern 
Utah, southern Colorado, Arizona, and New Mexico (Service 2002, p. 7). 
Lands with moist conditions that support riparian plant communities are 
areas that provide flycatcher habitat. Conditions like these typically 
develop in lower elevation floodplains as well as where streams enter 
impoundments, either natural (such as 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, Arizona, or the 
flat-gradient portions of the upper Rio Grande in south-central 
Colorado and northern New Mexico (Service 2002, p. 32). Sometimes, the 
low-gradient wider floodplain exists only at the habitat patch itself 
within a stream that is otherwise steeper in gradient (Service 2002, p. 
D-12).
    Relatively steep, confined streams can also support flycatcher 
breeding habitat (Service 2002, p. D-13). For instance, a portion of 
the San Luis Rey River in California 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 (Service 2002, p. D-13). Even a steep, confined canyon or 
mountain stream may present local conditions where just a small area 
less than a hectare (acre) in size of flycatcher breeding habitat may 
develop (Service 2002, p. D-13). Such sites are important individually 
and in aggregate to contribute to metapopulation stability, site 
connectivity, and gene flow (Service 2002, p. D-13). Flycatchers can 
occupy very small, isolated habitat patches and may occur in fairly 
high densities within those small patches.
    Many willow flycatchers are found along streams using riparian 
habitat during migration (Yong and Finch 1997, p. 253; Service 2002, p. 
E-3). Migration stopover areas can be similar to breeding habitat or 
riparian habitats with less vegetation density and abundance compared 
to areas for nest placement (the vegetation structure is too short or 
sparse or the patch is too small) (Service 2002, p. E-3). For example, 
many locations where migrant flycatchers were detected on the lower 
Colorado River (Koronkiewicz et al. 2004, pp. 9-11) and throughout 
Arizona in 2004 (Munzer et al. 2005, Appendix C) 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 (Service 2002, 
p. E-3). The variety of riparian habitat occupied by migrant 
flycatchers ranges from small patches with shorter and sparser 
vegetation to larger more complex breeding habitats.
    Therefore, based on the information above, we identify streams of 
lower gradient and more open valleys with a wide or broad floodplain an 
essential physical or biological feature of flycatcher habitat. In some 
instances,

[[Page 50549]]

streams in relatively steep, confined area can also support flycatcher 
breeding habitat (Service 2002, p. D-13). These areas support the 
abundance of riparian vegetation used for flycatcher nesting, foraging, 
dispersal, and migration.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

Food
    The flycatcher is somewhat of an insect generalist (Service 2002, 
p. 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, pp. 96-102). Wasps and bees (Hymenoptera) 
are common food items, as are flies (Diptera), beetles (Coleoptera), 
butterflies, moths and caterpillars (Lepidoptera), and spittlebugs 
(Homoptera) (Beal 1912, pp. 60-63; McCabe 1991, pp. 119-120). Plant 
foods such as small fruits have also been reported (Beal 1912, pp. 60-
63; Roberts 1932, p. 20; Imhof 1962, p. 268), but are not a significant 
food during the breeding season (McCabe 1991, pp. 119-120). Diet 
studies of adult flycatchers (Drost et al. 1998, p. 1; DeLay et al. 
1999, p. 216) 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 the flycatcher 
diet along the South Fork of the Kern River, California (Drost et al. 
2003, p. 98), flycatchers consumed a variety of prey from 12 different 
insect groups. Flycatchers have been identified targeting seasonal 
hatchings of aquatic insects along the Salt River arm of Roosevelt 
Lake, Arizona (Paxton et al. 2007a, p. 75).
    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 (Service 2002, pp. 18, D-12). Flycatchers forage within 
and above the tree canopy, along the patch edge, in openings within the 
territory, over water, and from tall trees as well as herbaceous ground 
cover (Bent 1960, pp. 209-210; McCabe 1991, p. 124). Flycatchers employ 
a ``sit and wait'' foraging tactic, with foraging bouts interspersed 
with longer periods of perching (Prescott and Middleton 1988, p. 25).
    Therefore, based on the information above, we identify the presence 
of a wide range of invertebrate prey, including flying and ground- and 
vegetation-dwelling species of terrestrial and aquatic origins to be an 
essential physical or biological feature of flycatcher habitat.
Water
    Flycatcher nesting habitat is largely associated with perennial 
(persistent) stream flow that can support the expanse of vegetation 
characteristics needed by breeding flycatchers, but there are 
exceptions. Flycatcher nesting habitat can persist on intermittent 
(ephemeral) streams that retain local conditions favorable to riparian 
vegetation (Service 2002, p. D-12). The range and variety of stream 
flow conditions (frequency, magnitude, duration, and timing) (Poff et 
al. 1997, pp. 770-772) that will establish and maintain flycatcher 
habitat can arise in different types of both regulated and unregulated 
flow regimes throughout its range (Service 2002, p. 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 
(Service 2002, p. D-12).
    In the Southwest, hydrological conditions at a flycatcher breeding 
site can vary remarkably within a season and between years (Service 
2002, p. D-12). At some locations, particularly during drier years, 
water or saturated soil is only present early in the breeding season 
(May and part of June) (Service 2002, p. 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 (Service 2002, p. D-
12). This is particularly true of reservoir sites such as the Kern 
River at Lake Isabella, California; Roosevelt Lake, Arizona; and 
Elephant Butte Reservoir, New Mexico (Service 2002, p. 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. In 
such cases, the riparian vegetation and any flycatchers breeding within 
it may persist for several years (Service 2002, p. 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 (Service 2002, p. 33). The riparian vegetation 
that constitutes flycatcher breeding habitat requires substantial water 
(Service 2002, p. D-12). Because 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 (Service 2002, p. D-12). These 
slow-moving water situations can also be managed or mimicked through 
manipulated supplemental water originating from sources such as 
agricultural return flows or irrigation canals (Service 2002, p. D-15).
    Therefore, based on the information above, we identify flowing 
streams with a wide range of stream flow conditions that support 
expansive riparian vegetation as an essential physical or biological 
feature of flycatcher habitat. The most common stream flow conditions 
are largely perennial (persistent) stream flow with a natural 
hydrologic regime (frequency, magnitude, duration, and timing). 
However, in the Southwest, hydrological conditions can vary, causing 
some flows to be intermittent, but the floodplain can retain surface 
moisture conditions favorable to expansive and flourishing riparian 
vegetation. These appropriate conditions can be supported by managed 
water sources and hydrological cycles that mimic key components of the 
natural hydrologic cycle.
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, p. 92). Where groundwater levels are 
elevated to the point that riparian forest plants can directly access 
those waters, it can be an area for breeding, non-breeding, 
territorial, dispersing, foraging, and migrating flycatchers. Elevated 
groundwater helps create moist soil conditions believed to be important 
for nesting conditions and prey populations (Service 2002, pp. 11, 18), 
as further discussed below.
    Depth to groundwater plays an important part in the distribution of 
riparian vegetation (Arizona Department of Water Resources 1994, p. 31) 
and consequently, flycatcher habitat. The

[[Page 50550]]

greater the depth to groundwater below the land surface, the less 
abundant the riparian vegetation (Arizona Department of Water Resources 
1994, p. 31). Localized, perched aquifers (a saturated area that sits 
above the main water table) can and do support some riparian habitat, 
but these systems are not extensive (Arizona Department of Water 
Resources 1994, p. 31).
    The abundance and distribution of fine sediment deposited on 
floodplains is critical for the development, abundance, distribution, 
maintenance, and germination of the plants that grow into flycatcher 
habitat (Service 2002, p. 16). Fine sediments provide seed beds to 
facilitate the growth of riparian vegetation for flycatcher habitat. In 
almost all cases, moist or saturated soil is present at or near 
breeding sites during wet and non-drought years (Service 2002, p. 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 (Service 2002, p. D-3). Microclimate features (temperature 
and humidity) facilitated by moist or saturated soil, are believed to 
play an important role where flycatchers are detected and nest, their 
breeding success, and availability and abundance of food resources 
(Service 2002, pp. 18, D-12).
    Therefore, based on the information above, we identify elevated 
subsurface groundwater tables and appropriate floodplain fine sediments 
as essential physical or biological features of flycatcher habitat. 
These features provide water and seedbeds for the germination, growth, 
and maintenance of expansive growth of riparian vegetation needed by 
the flycatcher.

Cover or Shelter

    Riparian vegetation (described more in detail within the Sites for 
Breeding or Rearing (or Development) of Offspring section) also 
provides the flycatcher cover and shelter while migrating and nesting. 
Placing nests in dense vegetation provides cover and shelter from 
predators or nest parasites that would seek out flycatcher adults, 
nestlings, or eggs. Similarly, using riparian vegetation for cover and 
shelter during migration provides food-rich stopover areas, a place to 
rest, and shelter or cover along migratory flights (Service 2002, pp. 
D-14, F-16). Riparian vegetation used by migrating flycatchers can 
sometimes be less dense and abundant than areas used for nesting 
(Service 2002, p. D-19). However, migration stopover areas, even though 
not used for breeding, may be critically important resources affecting 
local and regional flycatcher productivity and survival (Service 2002, 
p. D-19).
    Therefore, based on the information above, we identify riparian 
tree and shrub species (described in more detail below) that provide 
cover and shelter for nesting, breeding, foraging, dispersing, and 
migrating flycatchers as essential physical or biological features of 
flycatcher habitat.

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

Reproduction and Rearing of Offspring
    Riparian habitat characteristics such as dominant plant species, 
size and shape of habitat patches, tree canopy structure, vegetation 
height, and vegetation density are important parameters of flycatcher 
breeding habitat, although they may vary widely at different sites 
(Service 2002, p. 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 (Service 2002, 
p. D-2). These habitat features are generally discussed below.
    Flycatchers nest in thickets of trees and shrubs ranging in height 
from 2 m to 30 m (6 to 98 ft) (Service 2002, p. 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 (Service 2002, p. 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 (Service 2002, p. D-3).
    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 creating a mosaic 
that is not uniformly dense (Service 2002, p. 11). Common tree and 
shrub species currently known to comprise nesting habitat include 
Goodings willow, coyote willow, Geyers willow, arroyo willow, red 
willow, yewleaf willow, pacific willow (Salix lasiandra), boxelder, 
tamarisk, and Russian olive (Service 2002, pp. D-2, D-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) (Service 
2002, pp. D-3, D-5, D-9). Other species used by nesting flycatchers may 
become known over time as more studies and surveys occur.
    Canopy density (the amount of cover provided by tree and shrub 
branches measured from the ground) at various nest sites ranged from 50 
to 100 percent (Service 2002, p. D-3). Flycatcher breeding habitat can 
be generally organized into three broad habitat types--those dominated 
by native vegetation (typically willow), by exotic (nonnative) 
vegetation (typically salt cedar), and those with mixed native and 
those dominated by exotic plants (typically salt cedar and willow).
    These broad habitat descriptors reflect the fact that flycatchers 
inhabit riparian habitats dominated by both native and nonnative plant 
species. Salt cedar and Russian olive are two exotic plant species used 
by flycatchers for nest placement and also foraging and shelter 
(Service 2002, p. D-4). The riparian patches used by breeding 
flycatchers vary in size and shape (Service 2002, p. D-2). They may be 
relatively dense, linear, contiguous stands or irregularly-shaped 
mosaics of dense vegetation with open areas (Service 2002, pp. D-2-D-
11).
    Flycatchers use tamarisk (or salt cedar) and Russian olive for nest 
placement, foraging, roosting, cover, migration, and dispersal. Fewer 
than half (44 percent) of the known flycatcher territories occur in 
habitat patches that are greater than 90 percent native vegetation in 
composition (Durst et al. 2008, p. 15). About 50 percent of all known 
flycatcher territories are located at breeding sites that include 
mixtures of native and exotic plant species (mostly tamarisk) (Durst et 
al. 2008, p. 15). In many of these areas, exotic plant species are 
significant contributors to the habitat structure by providing the 
dense lower strata vegetation that flycatchers prefer (Durst et al. 
2008, p. 15). A USGS comparative study (Sogge et al. 2005, p. 1) found 
no difference in flycatcher physiology, immunology, site fidelity, 
productivity, or survivorship between flycatchers nesting in tamarisk-
dominated habitat versus native-dominated habitats. Tamarisk habitats 
vary with respect to

[[Page 50551]]

suitability for breeding flycatchers across their range, just as do 
native habitats (Sogge et al. 2005, p.1). While the literature refutes 
or questions the negative environmental impacts of tamarisk (Glenn and 
Nagler 2005, pp. 1-2, USGS 2010, pp. vi-xviii), many riparian 
vegetation improvement projects focus on the eradication or control of 
tamarisk. The implementation of these projects requires careful 
evaluation (see Special Management Considerations or Protections below) 
and success can rely on the improvement of the physical or biological 
features included in this proposal associated with river flow and 
groundwater (Service 2002, Appendices H and K).
    Flycatchers have been recorded nesting in patches as small as 0.1 
ha (0.25 ac) along the Rio Grande, and as large as 70 ha (175 ac) in 
the upper Gila River, New Mexico (Service 2002, p. 17). The mean 
reported size of flycatcher breeding patches was 8.6 ha (21.2 ac), with 
the majority of sites toward the smaller end, as evidenced by a median 
patch size of 1.8 ha (4.4 ac) (Service 2002, p. 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), such as 
areas like the Kern River (Whitfield 2002, p. 2), Alamo Lake, Roosevelt 
Lake (Paradzick et al. 1999, pp. 6-7), and Lake Mead (McKernan 1997, p. 
13).
    Flycatchers can cluster their territories into small portions of 
riparian sites (Whitfield and Enos 1996, p. 2; Sogge et al. 1997, p. 
24), and major portions of the site may only be used briefly or not at 
all in any given year. Habitat modeling based on remote sensing and GIS 
data has found that breeding site occupancy at reservoir sites in 
Arizona is influenced by vegetation characteristics of habitat adjacent 
to the actual nesting areas (Hatten and Paradzick 2003, pp. 774, 782); 
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 
(Service 2002, p. D-11).
    With only some exceptions, flycatchers are generally not found 
nesting in confined floodplains (typically those bound within a narrow 
canyon) (Hatten and Paradzick 2003, p. 780) or where only a single 
narrow strip of riparian vegetation less than approximately 10 m (33 
ft) wide develops (Service 2002, p. D-11). While riparian vegetation 
too mature, too immature, or of lesser quality in abundance and breadth 
may not be used for nesting, it can be used by breeding flycatchers for 
foraging (especially if it extends out from larger patches) or during 
migration for foraging, cover, and shelter (Sogge and Tibbitts 1994, p. 
16; Sogge and Marshall 2000, p. 53).
    Therefore, based on the information above, we identify a variety of 
riparian tree and shrub species as essential physical or biological 
features of flycatcher habitat. Typically, dense expansive riparian 
forests provide habitat to place nests. Riparian vegetation of broader 
quality, with a mosaic of open spaces, typically surround locations to 
place nests or along river segments and provide vegetation for 
foraging, perching, dispersal, and migration, and habitat that can 
develop into nesting areas through time.

Primary Constituent Elements for Southwestern Willow Flycatcher

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the flycatcher in areas occupied at the time of 
listing, focusing on the features' primary constituent elements. We 
consider primary constituent elements to be the elements of physical or 
biological features that, when laid out in the appropriate quantity and 
spatial arrangement to provide for a species' life-history processes, 
are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the following elements are 
the primary constituent elements specific to the flycatcher:
    (1) Primary Constituent Element 1--Riparian vegetation. Riparian 
habitat in a dynamic river or lakeside, natural or manmade successional 
environment (for nesting, foraging, migration, dispersal, and shelter) 
that is comprised of trees and shrubs (that can include Gooddings 
willow, coyote willow, Geyers willow, arroyo willow, red willow, 
yewleaf willow, pacific willow, boxelder, tamarisk, Russian olive, 
buttonbush, cottonwood, stinging nettle, alder, velvet ash, poison 
hemlock, blackberry, seep willow, oak, rose, sycamore, false indigo, 
Pacific poison ivy, grape, Virginia creeper, Siberian elm, and walnut) 
and some combination of:
    (a) Dense riparian vegetation with thickets of trees and shrubs 
that can range in height from about 2 m to 30 m (about 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; and/or
    (b) 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 or tree level as a low, dense canopy; and/or
    (c) Sites for nesting that contain a dense (about 50 percent to 100 
percent) tree or shrub (or both) canopy (the amount of cover provided 
by tree and shrub branches measured from the ground); and/or
    (d) Dense patches of riparian forests that are interspersed with 
small openings of open water or marsh or areas with shorter and sparser 
vegetation that creates a variety of habitat 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) Primary Constituent Element 2--Insect prey populations. A 
variety of insect prey populations found within or adjacent to riparian 
floodplains or moist environments, which can include: flying ants, 
wasps, and bees (Hymenoptera); dragonflies (Odonata); flies (Diptera); 
true bugs (Hemiptera); beetles (Coleoptera); butterflies, moths, and 
caterpillars (Lepidoptera); and spittlebugs (Homoptera).
    With this proposed designation of critical habitat, we intend to 
identify the physical or biological features essential to the 
conservation of the species, through the identification of the 
appropriate quantity and spatial arrangement of the primary constituent 
elements sufficient to support the life-history processes of the 
species.

Physical or Biological Features and Primary Constituent Elements 
Summary

    The discussion above outlines those physical or biological features 
essential to the conservation of the flycatcher and presents our 
rationale as to why those features are being proposed. The primary 
constituent elements described above are results of the dynamic river 
or lakeside environment that germinates, develops, maintains, and 
regenerates the riparian forest and provides food for breeding, non-
breeding, dispersing, territorial, and migrating flycatchers.
    Anthropogenic factors such as dams, irrigation ditches, or 
agricultural field return flow can assist in providing or mimic the 
conditions that support flycatcher habitat. In regulated environments, 
riparian vegetation improvement projects associated with

[[Page 50552]]

planting, irrigation, and cultivation may also require manual 
manipulation to maintain suitability over the long term.
    Because the flycatcher exists in disjunct breeding populations 
across a wide geographic and elevation range and its habitat is subject 
to dynamic events, the quantity and spatial arrangement of critical 
habitat river segments described below are essential for the flycatcher 
to maintain metapopulation stability, connectivity, and gene flow, and 
to protect against catastrophic loss. All river segments proposed as 
flycatcher critical habitat are either: (1) Within the known range of 
the subspecies, representing areas known to be occupied at the time of 
listing; or (2) essential areas for the conservation of the species not 
known to be occupied by the flycatcher at the time of listing, but now 
may or may not be known to have flycatchers present. These areas 
contain at least one of the primary constituent elements of the 
physical or biological features essential for the conservation of the 
subspecies. It is important to recognize that the primary constituent 
elements such as riparian vegetation with trees and shrubs of a certain 
type and insect prey populations are present throughout the river 
segments selected, but the specific quality of riparian habitat for 
nesting (which involve elements such as specific configuration of 
riparian foliage, sites for nesting, and interspersion of small 
openings), migration, foraging, and shelter will not remain constant in 
condition or location over time due to succession (plant germination 
and growth) and the dynamic environment in which they exist.
    In order to reach the goal of conserving the subspecies by 
recovering an adequate geographical and ecological distribution of the 
flycatcher population, the distribution and abundance of flycatcher 
habitat and breeding populations must improve across the 29 Management 
Units (see Background section). The recovery goal is 1,950 flycatcher 
territories geographically and numerically distributed in the 
appropriate Management Units along with twice the habitat needed to 
maintain these territories (see Background section). Also, these areas 
must hold these populations for a number of years and be protected 
through conservation agreements or other means. The most recent 
rangewide flycatcher assessment estimated that there were about 1,300 
flycatcher territories (Durst et al. 2008, p. 13). The Lower Colorado, 
Upper Colorado, and Basin and Range Recovery Units need the most growth 
in known territories and habitat to reach recovery goals. While there 
is still great variance in the known number of territories within the 
Coastal California, Gila, and Rio Grande Recovery Units, these areas 
are closer in number of territories and amount of habitat to the 
established recovery goals. The numeric territory goals established per 
Management Unit are in denominations of 25. The goal for some 
Management Units may be as few as 25 territories or as many as 325.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    As mentioned briefly or referenced in this proposed rule, the 
flycatcher and its habitat are threatened by a multitude of factors 
occurring at once. Threats to those features that define critical 
habitat (elements of physical or biological features) are caused by 
various factors. We believe the essential features within the areas 
proposed as critical habitat will require some level of management or 
protection (or both) to address the current and future threats and 
maintain the quality, quantity, and arrangement of the elements of 
physical or biological features essential to flycatcher conservation.
    Essential features in need of special management occur not only at 
the immediate locations where the flycatcher may be present, but at 
additional areas needed to reach recovery goals and areas that can 
provide for normal population fluctuations and habitat succession that 
may occur in response to natural and unpredictable events. The 
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 hydrologic 
regimes; plant germination, growth, maintenance, and 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). 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 flycatcher and its habitat 
can be found in the final listing rule (60 FR 10694, February 27, 
1995), the previous critical habitat designations (62 FR 39129, July 
22, 1997; 70 FR 60886, October 19, 2005), and the final Recovery Plan 
(Service 2002, pp. 33-42, Appendix F). Some of the special management 
actions that may be needed for essential features of flycatcher habitat 
are briefly summarized below.
    (1) Restore adequate water-related elements to improve and expand 
the quality, quantity, and distribution of riparian habitat. Special 
management may: increase efficiency of groundwater management; use 
urban water outfall and irrigation delivery and tail waters for 
vegetation improvement; maintain, improve, provide, or reestablish 
instream flows to expand the quality, distribution, and abundance of 
riparian vegetation; increase the width between levees to expand the 
active channel during overbank flooding; and manage regulated river 
flows to more closely resemble the natural hydrologic regime.
    (2) Retain riparian vegetation in the floodplain. Special 
management may include the following actions: avoid clearing channels 
for flood flow conveyance or plowing of flood plains; and implement 
projects to minimize clearing of vegetation (including exotic 
vegetation) to help ensure that desired native species and exotic 
vegetation persist until an effective riparian vegetation improvement 
plan can be implemented.
    (3) Manage biotic elements and processes. Special management may 
include the following actions: manage livestock grazing to increase 
flycatcher habitat quality and quantity by determining appropriate 
areas, seasons, and use consistent within the natural historical norm 
and tolerances; reconfigure grazing units, improve fencing, and improve 
monitoring and documentation of grazing practices; manage wild and 
feral hoofed-mammals (ungulates) (e.g., elk, horses, burros) to 
increase flycatcher habitat quality and quantity; and manage keystone 
species such as beaver to restore desired processes to increase habitat 
quality and quantity.
    (4) Protect riparian areas from recreational impacts. Special 
management may include actions such as managing trails, campsites, off-
road vehicles, and fires to prevent habitat

[[Page 50553]]

development and degradation in flycatcher habitat.
    (5) Manage exotic plant species, such as tamarisk or Russian olive, 
by reducing conditions that allow exotics to be successful, and 
restoring or reestablishing conditions that allow native plants to 
thrive. Throughout the range of the flycatcher, the success of exotic 
plants within river floodplains is largely a symptom of land and water 
management (for example, groundwater withdrawal, surface water 
diversion, dam operation, and unmanaged grazing) that has created 
conditions favorable to exotic plants over native plants. Special 
management may include the following actions: 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; in regulated 
streams, restore more 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; and restore ungulate herbivory to intensities and 
levels under which native riparian species are more competitive.
    (6) Manage fire to maintain and enhance habitat quality and 
quantity. Special management may include the following actions: 
suppress fires that occur; reduce risk of fire by restoring elevated 
groundwater levels, base flows, flooding, and natural hydrologic 
regimes in order to prevent drying of riparian areas and more flammable 
exotic plant species from developing; and reduce risk of recreational 
fires.
    (7) Evaluate and conduct exotic plant species removal and native 
plant species restoration on a site-by-site basis. If habitat 
assessments reveal a sustained increase in exotic plant abundance, 
conduct an evaluation of the underlying causes and conduct vegetation 
improvement under measures described in the Recovery Plan (Service 
2002, Appendices H and K). 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 vegetation improvement plan. Native 
riparian vegetation improvement plans should include: a staggered 
approach to create mosaics of different aged successional tree and 
shrub stands; consideration of whether the sites are presently occupied 
by nesting flycatchers; and management of stressors that can improve 
the germination, growth, and maintenance of preferred vegetation.
    (8) Manage or reduce the occurrence, spread, and effects of 
biocontrol agents on flycatcher habitat. Exotic biocontrol tamarisk 
leaf beetle insects (leaf beetles) were brought into and released in 
many locations throughout the western United States. This specific U.S. 
Department of Agriculture program was terminated in 2010, largely 
because these insects are moving farther and thriving in the 
southwestern United States (within the flycatcher's breeding range) 
where it was initially believed they would not persist (APHIS 2010, p. 
2). However, leaf beetles still exist within the United States, and 
specifically within the northern range of the flycatcher in Nevada, 
Arizona, and New Mexico. It is unknown to what extent these leaf 
beetles will continue to move throughout the Southwest. Their overall 
impact or benefit to the flycatcher, flycatcher habitat, and other 
wildlife species is also unknown, but there are predictions that the 
beetles could occur throughout the western United States and into 
northern Mexico (Tracy et al. 2008, pp. 1-3). There is concern about 
effects to the flycatcher in places throughout much of its range where 
the landscape does not support healthy native riparian vegetation (even 
in the absence of tamarisk). Along the Virgin River in southwestern 
Utah, flycatcher breeding attempts have failed concurrent with leaf 
beetle impacts to the vegetation (Paxton et al. 2010, p. 1). Rangewide, 
tamarisk is a habitat component of over half of all known flycatcher 
territories (Durst et al. 2007, p. 15). Therefore, it would be 
beneficial to prevent purposeful or accidental intra- or interstate 
transport of leaf beetles to locations that would increase the 
likelihood of beetles dispersing to flycatcher habitat. Similarly, 
because insects can travel or be moved large distances, prevent the 
additional release of leaf beetles (in all their varieties) into the 
environment where they can eventually occur within flycatcher habitat. 
Where leaf beetle-related impacts may occur or are happening, consider 
the previous items in this list and the Recovery Plan for strategies to 
help improve the germination and growth of native plants (Service 2002, 
p. Appendix K).

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available to designate critical habitat. 
We review available information pertaining to the habitat requirements 
of the species (or in this instance, a willow flycatcher subspecies). 
In accordance with the Act and its implementing regulation at 50 CFR 
424.12(e), we consider whether designating additional areas--outside 
those currently occupied as well as those occupied at the time of 
listing--are necessary to ensure the conservation of this flycatcher 
subspecies. We are proposing to designate critical habitat in areas 
within the geographical area known to be occupied by nesting 
flycatchers at the time of listing in 1995. We also are proposing to 
designate specific areas outside the geographical area occupied by 
nesting flycatchers at the time of listing (but that are within its 
known historical breeding distribution), because such areas are 
essential for the conservation of the species as supported by the 
geographical and numerical flycatcher territory and habitat-related 
recovery goals established in the Recovery Plan (Service 2002, pp. 84-
85).
Stream Segments as Critical Habitat
    We are proposing to use ``stream segments'' as the descriptor for 
the designated area of flycatcher critical habitat (which, in some 
areas also includes exposed reservoir bottoms). Stream segments are 
appropriate for delineating critical habitat because in addition to 
providing stream-side vegetation for flycatchers to place nests, stream 
segments satisfy other various flycatcher life needs adjacent to or 
between nesting sites (foraging habitat, stream, elevated groundwater 
tables, moist soils, flying insects, and other alluvial floodplain 
habitats) (see Physical or Biological Features section). Also, the 
dynamic processes of riparian vegetation succession (loss and regrowth) 
and river hydrology allow for stream segments to provide both current 
and future areas for flycatcher habitat to grow. Riparian vegetation in 
these segments is expected to naturally expand and contract from 
flooding, inundation, drought, and the resulting changes in the extent 
and location of floodplains and river channels (Service 2002, pp. 18, 
D-13-D-15). Therefore, while one or more of the physical or biological 
features are currently present, over time these habitat features will 
fluctuate in quality or location throughout these stream segments. 
Management of stream flows and other anthropogenic (manmade) factors, 
such as agricultural practices, can also influence the location and 
quality of the riparian vegetation in many of these stream segments. 
The lateral extent of each river segment occurs within the 100-year 
floodplain (see Physical or

[[Page 50554]]

Biological Features section) and is further described below (see 
Lateral Extent section). Therefore, designating stream segments as 
critical habitat will provide for the variety of flycatcher uses and 
allow for ever-changing streamside vegetation habitat quality (in 
location and abundance).
Occupancy at the Time of Listing
    We identified areas occupied at the time of listing in 1995 as 
those streams where flycatchers were found nesting in any one season 
from surveys conducted from 1991 to 1994 (Sogge and Durst 2008). The 
flycatcher rangewide database (Sogge and Durst 2008) is the 
authoritative source for determining nesting areas because our 1995 
flycatcher listing rule did not list all known data regarding 
flycatcher distribution and abundance. We considered a broader area to 
be occupied than just the specific site where a nest was located 
because flycatchers are a neotropical migrant traveling between Central 
America (and possibly northern South America) and the United States, 
and they are known to move to different nest areas from year-to-year.
    Because flycatchers are neotropical migrants that occupy riparian 
areas along rivers while traveling between wintering and breeding 
grounds, we expect that abundant small areas along long stretches of 
stream can be irregularly occupied by migrant flycatchers from year-to-
year. North- and south-bound migrating flycatchers are frequently found 
occupying stopover areas along streams upstream of, downstream of, and 
between known breeding sites (Yong and Finch 1997, pp. 265-266; Service 
2002, pp. E2-E3; Koronkiewicz et al. 2004, pp. 9-11). In Arizona, 
migrant flycatchers were detected at 204 sites Statewide along 15 of 19 
river drainages surveyed for nesting flycatchers over a 10-year period 
(Ellis et al. 2008, p. 26). Over 600 migrant willow flycatchers 
(subspecies not known) were detected along the length of the lower 
Colorado River in 2004 (Ellis et al. 2008, p. 26), where only a 
relatively few known breeding sites exist.
    Similarly, flycatchers are known to have fidelity to a larger area 
along stream drainages (rather than specific nest site fidelity), and 
can regularly move their nesting locations about 30 to 40 km (18 to 25 
mi) from year-to-year (Paxton et al. 2007a, p. 4). And sometimes, 
flycatchers can even move to a very distant location, dispersing as far 
as 444 km (275 mi) from a previous year's nesting area (Paxton et al. 
2007a, p. 2). These year-to-year movements are facilitated by the 
dynamic nature of flycatcher habitat, changing in quality and location 
over time. More dramatic changes in habitat quality caused by events 
such as flooding or inundation can force flycatchers to move their 
breeding location, thus causing them to use broader locations and 
habitat quality.
    Therefore, for this wide-ranging bird, it is difficult to precisely 
determine known occupied areas due to the following considerations: (1) 
The flycatcher's neotropical migratory habits of occupying stopover 
areas along streams upstream of, downstream of, and between breeding 
sites; and (2) the season-to-season variation in habitat quality and 
subsequent lack of specific nest-site fidelity. As a result, for the 
purpose of this proposed critical habitat designation, we believe it is 
most conservative and reasonable to conclude that any stream segment 
along a stream where flycatchers were found nesting from 1991 to 1994 
also be considered occupied at the time of listing. Those stream 
segments considered occupied at the time of listing and those 
considered not occupied at the time of listing that we are proposing as 
revised critical habitat are organized by Recovery and Management Units 
listed in Table 1 and described briefly in the unit descriptions below. 
All of the stream segments occupied at the time of listing contain one 
or more of the elements of physical or biological features which may 
require special management considerations or protection as described 
above. We also include whether flycatcher territories were detected on 
proposed stream segments not known to be occupied at the time of 
listing (but are essential for the conservation of the flycatcher).
Recovery Plan Guidance
    We relied heavily on the Recovery Plan (Service 2002) to help us 
identify the areas that we are proposing as revised critical habitat 
because the Recovery Plan represents a compilation of the best 
scientific data available to us. We particularly used the information 
from the Recovery Plan, such as distribution and abundance of 
flycatchers, flycatcher natural history and habitat needs, and stream 
segments with substantial recovery value, to help identify stream 
segments that should be proposed as critical habitat because they are 
essential to flycatcher conservation.
    The Recovery Plan's strategy, rationale, and science for 
conservation of the flycatcher guided our efforts to identify the 
quantity and spatial arrangement of features and areas of critical 
habitat (Service 2002, pp. 61-95). Because of the wide distribution of 
this bird and the dynamic nature of its habitat, it was important to 
propose critical habitat in areas throughout all of the breeding range 
of the flycatcher that have stated recovery goals. This widespread 
distribution of habitat is intended to allow flycatchers to function as 
a group of metapopulations, realize gene flow throughout its range, 
provide ecological connectivity among disjunct populations, allow for 
breeding site colonization potential, and prevent catastrophic 
population losses.
    The Recovery Plan (Service 2002, pp. 74-76) identifies important 
factors to consider in minimizing the likelihood of extinction. These 
factors were also considered in our approach to proposing areas for 
critical habitat designation: (1) The territory is the appropriate unit 
of measure for numerical flycatcher recovery goals; (2) populations 
should be distributed throughout the bird's range; (3) populations 
should be distributed close enough to each other to allow for movement 
among them; (4) large populations contribute most to metapopulation 
stability, while smaller populations can contribute to metapopulation 
stability when arrayed in a matrix with high connectivity; (5) as the 
population of a site increases, the potential to disperse and colonize 
increases; (6) increase and decrease in one population affects other 
populations; (7) some Recovery and Management units have stable 
metapopulations, but others do not; (8) maintaining or augmenting (or 
both) existing populations is a greater priority than establishing new 
populations; and (9) establishing habitat close to existing breeding 
sites increases the chance of colonization.
Methodology Overview
    Our goal is to propose stream segments as critical habitat within 
29 of the 32 Management Units (which are geographic areas clustered 
within 6 Recovery Units) in order to meet the specific numerical 
flycatcher territory and habitat-related recovery goals (Service 2002, 
pp. 84-85), which are the same criteria that we are using to identify 
physical or biological features and designate areas that are essential 
to flycatcher conservation. Three of the 32 Management Units (Lower 
Gila, Pecos, and Texas) do not have any goals identified in the 
Recovery Plan because of either the lack of habitat, the inability for 
habitat to recover, or the determination that meaningful populations 
could not be established and persist. Therefore, no critical habitat is 
proposed for these three

[[Page 50555]]

Management Units. Numerical flycatcher territory recovery goals for 
each of the 29 Management Unit vary throughout the flycatcher's range 
from as few as 25 territories to as many as 325 (Service 2002, pp. 84-
85).
    In relying on these recovery goals and strategies, we used a 
methodology with two basic strategies to identify areas and, 
subsequently, river segments within those areas to propose as critical 
habitat. First, we identified areas based upon the presence of large 
breeding populations and areas with multiple small breeding populations 
that when found in proximity, form a large population. Once these areas 
were established, we identified the specific end points of the stream 
segments of flycatcher habitat. Second, for those Management Units with 
a specific number of territories required to meet recovery goals, but 
no, or very few, known flycatcher territories, we used information from 
the Recovery Plan (Service 2002, pp. 86-92) and other relevant sources 
to identify river segments with flycatcher habitat. The results of this 
strategy were the identification of streams that: (1) Were known to be 
occupied by flycatchers at the time of listing with the physical or 
biological features; (2) the identification of essential areas that 
were not known to be occupied by flycatchers at the time of listing but 
that also include elements of the physical or biological features of 
critical habitat; and (3) the identification of areas for critical 
habitat that have never been known to be occupied by flycatchers but 
are essential for the conservation of the flycatcher in order to meet 
recovery goals.
Areas With Large Populations
    To identify the areas with flycatcher habitat in each Management 
Unit, we first considered specific areas that are known since 1991 to 
have had large populations of nesting flycatchers. Since the time of 
listing in 1995, the known distribution and abundance of flycatcher 
territories has increased primarily due to increased survey effort 
(Durst et al. 2008, p. 4). Population increases have also been detected 
at specific areas where habitat quality and quantity improved. As a 
result of more extensive surveys and research, and in particular re-
establishing known occupancy of breeding sites in Nevada, Utah, and 
Colorado, the extent of streams known to be used by migrating, non-
breeding, and dispersing flycatchers has also expanded. Following the 
most recent rangewide estimate in 2007, 1,299 territories were 
described occurring in California, Nevada, Utah, Colorado, Arizona, and 
New Mexico (Durst et al. 2008, p. 4). Additional sites have been 
detected in the following years, but an updated rangewide estimate has 
not yet been compiled.
    The locations of breeding sites were generated from standardized 
flycatcher surveys conducted from 1991 to 2010. There has been a 
standardized survey protocol since the 1995 listing of the flycatcher 
that biologists have used to confirm the presence of flycatcher 
territories that has produced reliable and accurate information 
(Tibbitts et al. 1994, p. 1; Sogge et al. 1997, p. 1; Sogge et al. 
2010, p. 1). To help ensure the protocol is being used properly, the 
Service and our partners provide annual training on protocol 
implementation and flycatcher status, identification, and natural 
history.
    A variety of sources were used to determine breeding site location 
and information from 1991 to 2010. The Recovery Plan (Service 2002), 
the U.S. Geological Survey flycatcher rangewide database (Sogge and 
Durst 2008), the 2007 flycatcher rangewide report (Durst et al. 2008), 
and recent survey information for the 2008, 2009, and 2010 breeding 
seasons were all used as authoritative sources of information on 
breeding flycatcher distribution and abundance. The flycatcher 
rangewide database developed and maintained by USGS (Sogge and Durst 
2008) compiles the results of surveys conducted throughout the bird's 
range since 1991. We also examined 2008 to 2010 data that the Service 
in Arizona, Nevada, Utah, and Colorado compiled and entered into 
separate databases and spreadsheets. The USGS and U.S. Bureau of 
Reclamation provided the post-2007 Statewide database results for 
California and New Mexico, respectively. However, these post-2007 
flycatcher data were difficult to comprehensively incorporate into this 
proposed rule because they have not yet been analyzed and synthesized 
into the overall rangewide database. Therefore, much of our compiled 
rangewide information ends following the 2007 breeding season. A 
summary of known historical breeding records can be found in the 
Recovery Plan (Service 2002, pp. 8-10). We also evaluated 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.
    In order to identify areas with large flycatcher populations, we 
first considered and defined a ``large'' population. We defined a large 
population as a single breeding site or collection of smaller connected 
breeding sites that support 10 or more territories in a single year. We 
selected 10 or more territories to identify a large population because 
the flycatcher population viability analysis indicates a breeding site 
exhibits greatest long-term stability with at least 10 territories 
(Service 2002, p. 72). Large populations persist longer than small 
ones, and produce more dispersers capable of emigrating to other 
populations or colonizing new areas (Service 2002, p. 74). In addition, 
smaller populations with high connectivity to other small populations 
can provide as much or more stability than a single isolated larger 
population with the same number of territories because of the potential 
to disperse colonizers throughout the network of breeding sites 
(Service 2002, p. 75).
    Once the distribution and abundance of flycatcher breeding sites 
were identified and mapped, we considered the degree of connectivity to 
assign smaller separate flycatcher breeding sites and the distance from 
large populations to evaluate these areas as proposed critical habitat. 
In other words, how much area around breeding sites should be 
considered as proposed critical habitat? To determine these distances, 
we examined the known between-year movements of banded adult and 
juvenile flycatchers. The USGS's 10-year flycatcher study in central 
Arizona is the key movement study that has generated these conclusions 
(Paxton et al. 2007a, pp. 59-80), augmented by other flycatcher banding 
and re-sighting studies (Sedgwick 2004, p. 1103; McLeod et al. 2008, 
pp. 93-112). These studies found that flycatchers have higher site 
fidelity than nest fidelity and can move among breeding sites within 
drainages and between drainages (Kenwood and Paxton 2001, pp. 30-31). 
Within-drainage movements are more common than between-drainage 
movements (Paxton et al. 2007a, p. 77). Juveniles disperse the farthest 
and were the only group of flycatchers to connect very distant 
populations (Paxton et al. 2007a, p. 74). Banded flycatchers from 
season-to-season were recorded moving across a wide area from 50 m (150 
feet) to 444 km (275 mi) (Paxton et al. 2007a, p. 2).
    Because of the broad range of flycatcher movements, it is a 
challenge to apply a single distance to characterize the degree of 
connectivity of separated flycatcher breeding sites. However, USGS 
(Paxton et al. 2007a, pp. 4, 76, 84, 139, 140) assimilated all of the 
movement information and concluded that rapid colonization of 
flycatcher

[[Page 50556]]

breeding sites and increased metapopulation stability could be 
accomplished by establishing breeding sites within 30 to 40 km (18 to 
25 mi) of each other. Flycatchers at these breeding sites would 
regularly disperse or move between sites within the same year or from 
year-to-year. This proximity of these sites would increase the 
connectivity and stability of the metapopulation and smaller, more 
distant breeding sites.
    As a result of USGS's conclusion, we decided to use 35 km (22 mi), 
the average of the reported range, as a radius to identify an area 
surrounding known large flycatcher breeding sites and the distance to 
connect smaller populations to identify a large population. Because 
there was no distinction by USGS of a distance within this 30 to 40 km 
(18 to 25 mi) range that was more valuable to flycatchers, we believe 
the average is the best representation. After a large population area 
was established, we determined whether other breeding sites in 
proximity occurred. If so, this would add to our large population area, 
generate an additional 35-km (22-mi) radius and extend our area, and so 
on. We also used this 35-km (22-mi) radius to identify those highly 
connected breeding sites with a small number of territories that 
together equaled a large flycatcher population.
    Following the identification of these areas that surround large 
flycatcher populations, we determined where flycatcher habitat occurred 
on streams and where to establish end points for proposed critical 
habitat. We used the Recovery Plan and other literature sources and 
local knowledge to identify stream segments. In combination with these 
areas of flycatcher habitat, we then considered the numerical and 
habitat-related recovery goals, and current and previous number of 
known territories. We also considered site-specific knowledge of these 
streams, aerial photography, agency reports, and input from other 
resource managers. The proximity and connectivity of segments to known 
populations and metapopulation stability were also key aspects of the 
flycatcher's natural history we considered in delineating river segment 
end points.
    Our methods were unable to distinguish a more specific area, in 
contrast to other Management Units, within the San Diego and Santa Ana 
Management Units in the Coastal California Recovery Unit. Instead, 
because of the wide distribution and proximity of occupied streams 
segments, nearly these entire Management Units were identified as a 
large population area.
    Also, our methodology discussed above was unable to distinguish 
areas within some Management Units where neither large populations nor 
small populations with high connectivity were known to occur. For 
example, in the Amargosa, Santa Cruz, San Francisco, Hassayampa and 
Agua Fria, San Juan, Powell, and Lower Rio Grande Management Units, 
there are no known breeding sites with 10 or more flycatcher 
territories, nor are any known territories in high connectivity that 
create a large population. Similarly, in some Management Units a large 
population and surrounding area was identified, but that area was found 
not to be of adequate size to include enough river segments needed to 
support the number of territories called for in the recovery goals. 
This situation occurred in the Little Colorado, Santa Ynez, and Santa 
Clara Management Units. In all of these cases, we used the guidance 
from the Recovery Plan, local knowledge about habitat, and other 
information available to identify additional stream segments to propose 
as critical habitat to meet recovery goals.
    When generating the river segments in the situations where there 
were few territories to help guide us, we relied heavily upon 
recommendations and strategies provided in the Recovery Plan and local 
knowledge of habitat conditions, maps, and flycatcher natural history. 
The Recovery Plan identified portions of streams for each Management 
Unit that would contribute significantly toward recovery (Service 2002, 
pp. 86-92). These streams were not listed for the purpose of proposing 
critical habitat nor were they intended to be the only streams that 
were important for recovery, but they did identify streams of 
substantial recovery value. Also, we have generated additional 
information since the Recovery Plan was completed about river segments 
and whether they have or do not have substantial recovery value. Still, 
the list of stream segments described in the Recovery Plan (Service 
2002, pp. 86-92) provides important guidance, especially for Management 
Units where there are few known flycatcher sites, to guide our critical 
habitat proposal. Site-specific knowledge of these streams, aerial 
photography, agency reports, and input from other resource managers 
were also considered. The proximity and connectivity of segments to 
known populations and metapopulation stability were also key aspects of 
the flycatcher's natural history we considered in delineating these 
areas.
    The streams included as proposed critical habitat for the 
flycatcher are described below. Those streams included in this proposal 
that were not occupied at the time of listing were determined to be 
essential for the conservation of the flycatcher.
Migratory Habitat
    Habitat for migrating flycatchers is captured in this proposal by 
our approach to propose critical habitat as ``river segments'' and 
distributing segments across 29 Management Units throughout the 
southwestern United States. We are currently unable to distinguish the 
value of specific locations along particular streams for flycatcher 
migration because stopover areas contain broad habitat quality in wide-
ranging locations, are only for short-term use, and have uncertain 
occurrence from year-to-year (Finch et al. 2000, pp. 73, 76-77). 
Additionally, southwestern willow flycatchers are difficult to 
distinguish from other flycatcher species and subspecies during 
migration (Finch et al. 2000, pp. 71-72). Migrant flycatchers can 
sometimes be found in unusual locations away from riparian areas (Finch 
et al. 2000, p. 76), but many, if not most, are detected while 
searching for nesting flycatchers (McLeod et al. 2005, pp. 9-11; Ellis 
et al. 2008, pp. 26-27). An extensive look at flycatcher use along the 
Lower Colorado River (from Lake Mead to Mexico) and some of its major 
tributaries in Arizona and southern Nevada and Utah found migrating 
flycatchers in consecutive years occurring in nearly all of their study 
areas and over half of their survey sites (McLeod et al. 2005, pp. 9-
11; Koronkiewicz et al. 2006, pp. 11-13). Similarly, regular migratory 
movement of flycatchers was detected along the Middle Rio Grande (Yong 
and Finch 1997, p. 255). As a result of these factors, we expect 
similar flycatcher migration behavior for the other major drainages 
where flycatchers breed throughout its range and where these locations 
are included within this designation. Therefore, flycatcher migration 
habitat is captured within our methods for designating critical habitat 
to reach recovery goals, because: (1) We are designating areas as 
broader river segments; (2) our areas will be geographically located 
across a broad area of the Southwest encompassing most of the range of 
the flycatcher; and (3) we are proposing areas surrounding nesting 
sites where migrant flycatchers are most often detected.

[[Page 50557]]

Lateral Extent
    For the lateral extent of flycatcher proposed critical habitat 
stream segments, we considered the variety of purposes riparian habitat 
serves the 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. 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, and floodplain shape, and 
is driven by the wide variety of high, medium, and low flow events. In 
addition, manmade factors such as diversion ditches or return flows can 
also influence riparian vegetation distribution. Rivers can and do move 
from one side of the floodplain to the other. Flooding occurs at 
periodic frequencies that recharge aquifers and that deposit and 
moisten fine floodplain soils which create seedbeds for riparian 
vegetation germination and growth within these boundaries.
    In this proposal, we consider the riparian zone to be the area 
surrounding the select river segment that is directly influenced by 
river functions. The present boundaries, for mapping purposes, of the 
lateral extent or riparian zone (in other words, the surrogate for the 
delineation of the lateral boundaries of critical habitat within 
proposed stream segments) 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 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 1980s, 
2001, and 2002; (2) Federal Emergency Management Agency (FEMA) 1995, Q3 
100 year flood data; (3) U.S. Census Bureau Topologically Integrated 
Geographic Encoding and Referencing (TIGER); and (4) 2000 digital data. 
The riparian zone is anticipated to occur within the 100-year 
floodplain.
    Where pre-existing 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 and white, 1990s era and 2001; (2) 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 proposed designation by 
creating electronic maps of the lateral extent and attributing them 
according to the following riparian sub-classifications. Riparian 
developed areas, as defined below, are not included in our proposed 
critical habitat designation since these areas do not contain the 
primary constituent elements (see Primary Constituent Elements for the 
Southwestern Willow Flycatcher section above), are not considered 
essential to the conservation of the flycatcher and, therefore, do not 
meet the definition of critical habitat. We separated riparian areas 
into the following two categories: (1) Riparian Vegetated: This class 
is used to describe areas still in natural unvegetated wetlands, water 
bodies, and any undeveloped or unmanaged lands within the approximate 
riparian zone. (2) Riparian Developed: This class is used to describe 
all developed areas, such as urban and suburban development, 
agriculture, utilities, mining, and extraction.
Mapping
    When determining proposed critical habitat boundaries, we made 
efforts to avoid including developed areas such as lands covered by 
buildings, pavement, and other structures because such lands lack 
physical or biological features for the flycatcher. These types of 
developments are not often found adjacent to rivers within floodplains, 
and may not be found on recent maps. Also, the scale of the maps we 
prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the removal of such developed 
lands. Any such developed lands left inside critical habitat boundaries 
shown on the maps of this proposed rule have been excluded by text in 
the proposed rule and are not proposed for designation as critical 
habitat. Therefore, if the critical habitat is finalized as proposed, a 
Federal action involving these lands would not trigger section 7 
consultation with respect to critical habitat and the prohibition of 
adverse modification unless the specific action would affect the 
physical or biological features in the adjacent critical habitat. 
Similarly, where there are long stretches of canyons or other portions 
of rivers that we know lack the physical or biological features within 
a river segment, we attempted to remove those areas from our proposed 
river segments.
Summary
    Our initial steps and approach in proposing areas for flycatcher 
critical habitat were to identify areas: (1) Known to be within the 
specific geographic area occupied by the flycatcher at the time of 
listing (from surveys occurring from 1991 to 1994) that contain the 
essential physical or biological features which may require special 
management; and (2) that are essential to the conservation of the 
flycatcher based on the Recovery Plan goals.
    Following the evaluation of the two factors above, our goal was to 
incorporate the conservation strategies described in the Recovery Plan. 
These strategies describe the importance of flycatcher habitat to 
support stable and growing breeding populations, to provide migration 
stopover areas, to protect against simultaneous catastrophic loss, to 
maintain gene flow, to prevent isolation and extirpation, and to 
provide colonizers to use new areas. Also, the Recovery Plan describes 
the importance of habitat that supports large breeding populations of 
flycatchers and small populations that, when in proximity, equal a 
large population. To achieve these goals, the Recovery Plan describes a 
recovery strategy of distributing flycatcher habitat that could hold a 
specific minimum number of breeding territories across 29 different 
Management Units in portions of California, Nevada, Utah, Colorado, 
Arizona, and New Mexico.
    We therefore created criteria and methodology to identify areas 
surrounding large populations and small populations, in proximity, that 
equaled a large population. We used a 35-km (22-mi) distance as a 
radius to identify areas around large flycatcher populations (those 
with at least 10 territories) and small populations in high 
connectivity that together equal a large population.
    We chose to generate critical habitat in ``river segments'' to 
account for the dynamic aspects of flycatcher riparian habitat, the 
changing locations of flycatcher habitat due to these dynamic 
conditions, population growth, and the variety of other life-history 
needs such

[[Page 50558]]

as nest placement, foraging, dispersing, cover, shelter, and migration 
habitat.
    Once these broad areas were established, we identified stream 
segments with flycatcher habitat that we believe will support the 
numerical territory and habitat-related recovery goals for the 29 
Management Units described in the Recovery Plan.
    Some Management Units with recovery goals do not have large 
populations or small populations that equal a large population in high 
connectivity. Also, in some Management Units an area may not contain 
enough habitat to reach the number of territories stated in the 
Recovery Plan. In these instances, we relied heavily upon the Recovery 
Plan guidance (recovery strategy, stream identification, and habitat 
descriptions), flycatcher detections, and local expertise in habitat 
quality to identify river segments considered essential for the 
conservation of the species.
    The lateral extent of river segments proposed as critical habitat 
represent the riparian zone, which is an area that is most directly 
influenced by river functions and is anticipated to occur within the 
100-year floodplain. We created these boundaries from existing digital 
sources and visual interpretation.
    Overall, these proposed stream segments represent flycatcher 
habitat known to be occupied at the time of listing and essential areas 
that have high value for recovery. The proposed areas support stable 
and growing breeding populations, provide migration stopover areas, 
protect against simultaneous catastrophic loss, maintain gene flow, 
prevent isolation and extirpation, and encourage colonizers to use new 
areas. All proposed stream segments provide habitat for a wide 
distribution of breeding flycatchers, including areas for population 
growth to meet numerical and habitat-related recovery goals. The 
proposed areas also support other important flycatcher needs such as 
migration, dispersal, foraging, and shelter to reach the geographic 
distribution and habitat-related recovery goals established within the 
Recovery Plan's 29 Management Units with recovery goals.

Summary of Changes Between Flycatcher Critical Habitat Proposals

    Our improved knowledge about the flycatcher's distribution and 
abundance, development of a Recovery Plan (Service 2002), and our 
approach to determining essential habitat led to differences between 
the 1997 final flycatcher critical habitat designation (62 FR 39129) 
and our approach in the 2004 flycatcher critical habitat proposal (69 
FR 60706). Our 1997 designation of flycatcher critical habitat was 
completed without extensive current knowledge about flycatcher 
distribution and abundance and prior to the finalization of the 
Recovery Plan (Service 2002). Subsequently, in our 2004 flycatcher 
critical habitat proposal, we had more information about flycatcher 
distribution and abundance; population dynamics; year-to-year 
movements; and defined conservation objectives, strategies, and 
recovery criteria. In 2004, our approach to determining essential 
flycatcher habitat was protecting large populations and those smaller 
populations that, in proximity, equaled a large population.
    For this 2011 proposal, we have refined our definition of what 
areas are considered to be essential for the conservation of the 
species (see discussion below), and we continued to improve our 
knowledge about flycatcher habitat, distribution, and abundance. 
Because we will be re-analyzing potential exclusions, we present below 
the differences between our 2004 flycatcher proposed critical habitat 
rule and this 2011 flycatcher proposed critical habitat rule. We are 
comparing this proposal to the 2004 proposal instead of the final 2005 
flycatcher critical habitat designation because that final designation 
had a number of areas excluded under section 4(b)(2) of the Act. Our 
approach to conservation of the flycatcher and definition of essential 
habitat are the primary differences between the two proposals. We 
summarize the changes below.
    (1) For this 2011 proposal, we define the critical habitat that is 
not occupied at the time of listing, but that is essential for the 
conservation of the species, as areas needed to support the 
distribution and abundance of territories and habitat-related recovery 
goals described in the Recovery Plan (Service 2002, pp. 77-85). In 
contrast, in 2004, we determined essential habitat was based on only 
those areas that supported large flycatcher populations (69 FR 60715-
60716).
    (2) For this 2011 proposal, we are proposing stream segments in all 
29 Management Units where there are flycatcher territories and habitat-
related recovery goals stated in the Recovery Plan, in contrast to our 
2004 proposal where we proposed stream segments in only 21 Management 
Units.
    (3) In this proposed rule we are using 35 km (22 mi) as the radius 
to guide our critical habitat areas surrounding large populations 
(equal or greater than 10 territories) and proximity of sites with 
smaller numbers that could equal a large population. This is the 
average distance between breeding sites that USGS described (30 to 40 
km, 18 to 25 mi) as being highly connected. In our 2004 proposal, we 
used 30 km (18 mi) as the radius. Because USGS did not describe a value 
within this 30 to 40 km range (18 to 25 mi) that is more or less 
beneficial for the flycatcher, we believe using the average accurately 
reflects the range of distance between highly connected breeding sites.
    (4) To assist in generating critical habitat in Management Units 
where there are recovery goals, but there are no known large flycatcher 
population or collection of small populations in proximity that equaled 
a large population, we are using Recovery Plan guidance in this 
proposed rule to propose stream segments with substantial recovery 
value (Service 2002, pp. 86-92), known breeding sites (Durst et al. 
2008; Sogge and Durst 2008), and other literature, reports, and local 
knowledge about flycatcher population dynamics and habitat. In 
contrast, in 2004, we did not attempt to propose critical habitat in 
these areas because our definition of essential habitat was focused on 
the presence of large populations (69 FR 60715-60716).
    (5) In 2004 we identified the following stream segments as 
essential to the conservation of the flycatcher and proposed them as 
critical habitat. These segments are not included in this proposal 
because of further evaluation of habitat quality, additional 
information about flycatcher territories, and our revised definition of 
essential habitat.

Coastal California Recovery Unit

     Santa Ana Management Unit, CA: Yucaipa Creek and Wilson 
Creek.
     San Diego Management Unit, CA: Cuyamaca Reservoir and Agua 
Hedionda Lagoon.

Lower Colorado Recovery Unit--Nevada, California and Arizona Border, 
Arizona, New Mexico

     Little Colorado Management Unit, AZ: East and South Forks 
Little Colorado River.

Gila Recovery Unit--Arizona

     Roosevelt Management Unit, AZ: Pinto Creek.
    (6) The following stream segments were not proposed as flycatcher 
critical habitat in 2004 but are now being proposed as flycatcher 
critical habitat. These areas are now identified as flycatcher critical 
habitat primarily due to the change in our criteria and consideration 
of the recovery goals (see items 1-4 above).

[[Page 50559]]

Coastal California Recovery Unit

     Santa Ynez Management Unit: Mono Creek.
     At Vandenberg Air Force Base, a portion of the Santa Ynez 
River is exempted under section 4(a)(3) of the Act.
     Santa Clara Management Unit: Santa Clara River, Ventura 
River, Piru Creek, Castaic Creek, Big Tujunga Canyon, Little Tujunga 
Canyon, and San Gabriel River.
     Santa Ana Management Unit: Bautista Creek.
     San Diego Management Unit: Canada Gobernadora Creek, 
Fallbrook Creek, Sweetwater River (near Sweetwater Reservoir).
     At Marine Corps Base, Camp Pendleton, portions of 
Cristianitos, San Mateo, San Onofre, Las Flores, Las Pulgas, and DeLuz 
Creeks and Santa Margarita River are exempted from critical habitat 
under section 4(a)(3) of the Act.
     At Naval Weapons Station Seal Beach Detachment Fallbrook, 
portions of Pilgrim Creek and Santa Margarita River are exempted from 
critical habitat under section 4(a)(3) of the Act.

Basin and Mohave Recovery Unit--California and Nevada

     Kern Management Unit: Canebrake Creek, CA.
     Mohave Management Unit: West Fork Mohave River, CA.
     Amargosa Management Unit: Willow Creek, CA; Amargosa River 
CA, NV; and unnamed riparian areas and Carson Slough within Ash Meadows 
National Wildlife Refuge, NV.

Lower Colorado Recovery Unit--Nevada, California and Arizona Border, 
Arizona, Utah, and New Mexico

     Little Colorado Management Unit: Rio Nutria and Zuni 
River, NM.

Upper Colorado Recovery Unit--Arizona, Utah, Colorado, and New Mexico

     San Juan Management Unit: Los Pinos River, CO; San Juan 
River, NM, UT.
     Powell Management Unit: Paria River, UT.

Gila Recovery Unit--Arizona and New Mexico

     Roosevelt Management Unit: Pinal Creek, AZ.
     Santa Cruz Management Unit: Santa Cruz River and Cienega 
Creek, AZ.
     San Francisco Management Unit: San Francisco River, AZ, 
NM.
     Hassayampa and Agua Fria Management Unit: Hassayampa River 
and Gila River, AZ.

Rio Grande Recovery Unit--New Mexico and Colorado

     Upper Rio Grande Management Unit: Rio Fernando, NM.
     Lower Rio Grande Management Unit: Rio Grande, NM.
    (7) We are exempting, under section 4(a)(3) of the Act, areas that 
meet the definition of flycatcher critical habitat found on three 
military installations in the Coastal California Recovery Unit: 
Vandenberg Air Force Base; Naval Weapons Station Seal Beach Detachment 
Fallbrook; and Marine Corps Base, Camp Pendleton based on these 
military installations having Service approved Integrated Natural 
Resources Management Plans (INRMP) which are being implemented to 
conserve flycatchers and their habitat (see Exemptions).
    (8) The end points of similar stream segments we proposed in 2004 
have changed in many instances within this 2011 proposal, making some 
segments longer and others shorter. This is primarily due to: our goal 
of proposing stream segments that could reach recovery goals; changing 
the distance used to identify critical habitat and connect more distant 
populations (increased from 30 km [18 mi] to 35 km [22 mi]); and 
continuing to improve and document our knowledge about flycatcher 
distribution, abundance, and habitat. Please see the maps included at 
the end of this proposal for the specific stream segment end points and 
also in the supplementary documents associated with this proposed rule 
found at http://www.regulations.gov.
    (9) The length and area of some stream segments may be different in 
this 2011 proposal, even when the same end points occur under both the 
2004 and 2011 proposals. When the end points are the same, the newer 
Geographic Information System (GIS) software used in 2011 was more 
accurate in calculating the bends and turns of streams resulting in 
larger calculations of stream length for some critical habitat stream 
segments. We also used updated information to generate the lateral 
extent of stream segments.
    (10) We are also proposing to correct the information in the 
historic range column for the flycatcher in the table at 50 CFR 
17.11(h). The historic range for the flycatcher should include Nevada.

Proposed Critical Habitat Designation

    We are proposing stream segments in 29 Management Units found in 
six Recovery Units as critical habitat for the flycatcher. These stream 
segments occur in California, Nevada, Utah, Colorado, Arizona and New 
Mexico and include a total of approximately 3,364 km (2,090 mi) of 
streams. Table 1 lists all the streams included in this proposal and 
whether they are considered occupied at the time of listing and whether 
they are currently considered occupied. Approximate land ownership in 
each State where the proposed critical habitat occurs is provided in 
Table 2. The critical habitat areas described below constitute our best 
assessment of areas that meet the definition of flycatcher critical 
habitat. In order to help further understand the location of these 
proposed stream segments, please see the associated maps found within 
this proposed rule. Maps in GIS format that include the lateral extent 
areas being proposed for designation can be found in the supplementary 
materials associated with this proposed rule at http://www.regulations.gov.

Coastal California Recovery Unit in California

    (1) Santa Ynez Management Unit--Santa Ynez River and Mono Creek. 
Portions of Santa Ynez River within Vandenberg Air Force Base are 
exempted (see Exemptions).
    (2) Santa Clara Management Unit--Santa Clara River, Ventura River, 
Piru Creek, Castaic Creek, Big Tujunga Canyon, Little Tujunga Canyon, 
and San Gabriel River.
    (3) Santa Ana Management Unit--Bear Creek, Mill Creek, Oak Glen 
Creek, San Timoteo Creek, Santa Ana River, Waterman Creek, and Bautista 
Creek.
    (4) San Diego Management Unit--Canada Gobernadora Creek, 
Cristianitos Creek, Las Flores Creek, Las Pulgas Creek, San Mateo 
Creek, San Onofre Creek, Santa Margarita River, Fallbrook Creek, DeLuz 
Creek, San Luis Rey River, Pilgrim Creek, Agua Hedionda Creek, San 
Dieguito River, Santa Ysabel Creek, Temescal Creek, Temecula Creek, 
Sweetwater River, and San Diego River. Entire segments of San Mateo, 
San Onofre, Cristianitos, Las Flores, Las Pulgas, and Fallbrook Creeks 
are exempted, and portions of Santa Margarita River and DeLuz and 
Pilgrim Creeks that occur within Marine Corps Base Camp Pendleton and 
Naval Weapons Station Seal Beach Detachment Fallbrook are exempted (see 
Exemptions).

Basin and Mohave Recovery Unit in California and Nevada

    (5) Owens Management Unit--Owens River, CA.
    (6) Kern Management Unit--South Fork Kern River (including upper 
Lake Isabella) and Canebrake Creek, CA.

[[Page 50560]]

    (7) Mohave Management Unit--Deep Creek, Holcomb Creek, Mohave 
River, and West Fork Mohave River, CA.
    (8) Salton Management Unit--San Felipe Creek and Mill Creek, CA.
    (9) Amargosa Management Unit--Willow Creek, CA; Amargosa River CA 
and NV; Carson Slough and unnamed riparian areas within Ash Meadows 
National Wildlife Refuge, NV.

Lower Colorado Recovery Unit in Nevada, California and Arizona border, 
Arizona, Utah, and New Mexico

    (10) Little Colorado Management Unit--Little Colorado River and 
West Fork Little Colorado River, AZ; Rio Nutria and Zuni River, NM.
    (11) Virgin Management Unit--Virgin River, NV, AZ, and UT.
    (12) Middle Colorado Management Unit--Colorado River, AZ.
    (13) Pahranagat Management Unit--Pahranagat River and Muddy River, 
NV.
    (14) Bill Williams Management Unit-- Big Sandy River, Bill Williams 
River, Santa Maria River (including upper Alamo Lake), AZ.
    (15) Hoover to Parker Dam Management Unit-- Bill Williams River, 
AZ; Colorado River, CA and AZ.
    (16) Parker Dam to Southerly International Border Management Unit--
Colorado River, CA and AZ.

Upper Colorado Recovery Unit in Arizona, Utah, Colorado, and New Mexico

    (17) San Juan Management Unit--Los Pinos River, CO; San Juan River, 
NM and UT.
    (18) Powell Management Unit--Paria River, UT.

Gila Recovery Unit in Arizona and New Mexico

    (19) Verde Management Unit--Verde River (including Horseshoe Lake), 
AZ.
    (20) Roosevelt Management Unit--Salt River, Tonto Creek (including 
Roosevelt Lake), and Pinal Creek, AZ.
    (21) Middle Gila and San Pedro Management Unit--Gila River and San 
Pedro River, AZ.
    (22) Upper Gila Management Unit--Gila River in AZ and NM.
    (23) Santa Cruz Management Unit--Santa Cruz River and Cienega 
Creek, AZ.
    (24) San Francisco Management Unit--San Francisco River, AZ and NM.
    (25) Hassayampa and Agua Fria Management Unit--Hassayampa River and 
Gila River, AZ.

Rio Grande Recovery Unit in New Mexico and Colorado

    (26) San Luis Valley Management Unit--Conejos River and Rio Grande, 
CO.
    (27) Upper Rio Grande Management Unit--Coyote Creek, Rio Grande, 
Rio Grande del Rancho, and Rio Fernando, NM.
    (28) Middle Rio Grande Management Unit--Rio Grande, NM.
    (29) Lower Rio Grande Management Unit--Rio Grande, NM.

    Table 1--Streams Proposed for Flycatcher Critical Habitat (1) Occupied at Time of Listing Based Upon Our
                          Criteria (1991-1994) and (2) Territories Detected (1991-2010)
----------------------------------------------------------------------------------------------------------------
                                                                              Known to be
                                                                           occupied at time       Territories
          Recovery unit             Management unit         Stream        of listing  (1991-   detected  (1991-
                                                                                 1994)               2010)
----------------------------------------------------------------------------------------------------------------
Coastal California..............  Santa Ynez........  Mono Creek........  No................  No.
                                                      Santa Ynez River    Yes...............  Yes.
                                                       (portion
                                                       exempted).
                                  Santa Clara.......  Big Tujunga Canyon  No................  No.
                                                      Castaic Creek.....  No................  No.
                                                      Little Tujunga      No................  No.
                                                       Canyon.
                                                      Piru Creek........  No................  Yes.
                                                      San Gabriel River.  No................  Yes.
                                                      Santa Clara River.  Yes...............  Yes.
                                                      Ventura River.....  No................  No.
                                  Santa Ana.........  Bear Creek........  No................  Yes.
                                                      Mill Creek........  No................  Yes.
                                                      Oak Glen Creek....  No................  Yes.
                                                      San Timoteo Creek.  No................  Yes.
                                                      Santa Ana River...  No................  Yes.
                                                      Waterman Creek....  No................  Yes.
                                                      Bautista Creek....  No................  Yes.
                                  San Diego.........  Agua Hedionda       No................  Yes.
                                                       Creek.
                                                      Canada Gobernadora  No................  Yes.
                                                       Creek.
                                                      Cristianitos Creek  No................  No.
                                                       (exempted).
                                                      DeLuz Creek         No................  Yes.
                                                       (portion
                                                       exempted).
                                                      Fallbrook Creek     No................  Yes.
                                                       (exempted).
                                                      Las Flores Creek    No................  Yes.
                                                       (exempted).
                                                      Las Pulgas Creek    No................  No.
                                                       (exempted).
                                                      Pilgrim Creek.....  Yes...............  Yes.
                                                      (portion exempted)
                                                      San Dieguito River  No................  Yes.
                                                      San Diego River...  No................  Yes.
                                                      San Luis Rey River  Yes...............  Yes.
                                                      San Mateo Creek     No................  Yes.
                                                       (exempted).
                                                      San Onofre Creek    No................  No.
                                                       (exempted).
                                                      Santa Margarita     No................  Yes.
                                                       River (portion
                                                       exempted).
                                                      Santa Ysabel Creek  No................  Yes.
                                                      Sweetwater River..  No................  Yes.
                                                      Temecula Creek....  No................  Yes.
                                                      Temescal Creek....  No................  No.
Basin and Mohave................  Owens.............  Owens River.......  Yes...............  Yes.
                                  Kern..............  Canebrake Creek...  No................  Yes.

[[Page 50561]]

 
                                                      South Fork Kern     Yes...............  Yes.
                                                       River.
                                  Mohave............  Deep Creek........  No................  No.
                                                      West Fork Mohave    No................  No.
                                                       River.
                                                      Holcomb Creek.....  No................  Yes.
                                                      Mohave River......  No................  Yes.
                                  Salton............  San Felipe Creek..  No................  Yes.
                                                      Mill Creek........  No................  Yes.
                                  Amargosa..........  Amargosa River....  No................  Yes.
                                                      Willow Creek......  No................  No.
                                                      Ash Meadows         No................  Yes.
                                                       Riparian Areas.
                                                      Carson Slough.....  No................  Yes.
Lower Colorado..................  Little Colorado...  Little Colorado     Yes...............  Yes.
                                                       River.
                                                      Rio Nutria........  Yes...............  Yes.
                                                      West Fork Little    No................  No.
                                                       Colorado River.
                                                      Zuni River........  Yes...............  Yes.
                                  Virgin............  Virgin River......  No................  Yes.
                                  Middle Colorado...  Colorado River....  Yes...............  Yes.
                                  Pahranagat........  Muddy River.......  No................  Yes.
                                                      Pahranagat River..  No................  Yes.
                                  Bill Williams.....  Big Sandy River...  Yes...............  Yes.
                                                      Bill Williams       Yes...............  Yes.
                                                       River.
                                                      Santa Maria River.  Yes...............  Yes.
                                  Hoover to Parker    Colorado River....  Yes...............  Yes.
                                   Dam.
                                                      Bill Williams       Yes...............  Yes.
                                                       River.
                                  Parker Dam to       Colorado River....  Yes...............  Yes.
                                   Southerly
                                   International
                                   Border.
Upper Colorado..................  San Juan..........  San Juan River....  No................  Yes.
                                                      Los Pinos River...  No................  Yes.
                                  Powell............  Paria River.......  No................  No.
Gila............................  Verde.............  Verde River.......  Yes...............  Yes.
                                  Roosevelt.........  Tonto Creek.......  Yes...............  Yes.
                                                      Salt River........  Yes...............  Yes.
                                                      Pinal Creek.......  No................  Yes.
                                  Middle Gila and     San Pedro River...  Yes...............  Yes.
                                   San Pedro.
                                                      Gila River........  Yes...............  Yes.
                                  Upper Gila........  Gila River........  Yes...............  Yes.
                                  Santa Cruz........  Santa Cruz........  No................  No.
                                                      Cienega Creek.....  No................  Yes.
                                  San Francisco.....  San Francisco       Yes...............  Yes.
                                                       River.
                                  Hassayampa and      Hassayampa River..  No................  Yes.
                                   Agua Fria.
                                                      Gila River........  Yes...............  Yes.
Rio Grande......................  San Luis Valley...  Rio Grande........  Yes...............  Yes.
                                                      Conejos River.....  No................  Yes.
                                  Upper Rio Grande..  Coyote Creek......  Yes...............  Yes.
                                                      Rio Fernando......  No................  Yes.
                                                      Rio Grande........  Yes...............  Yes.
                                                      Rio Grande Del      Yes...............  Yes.
                                                       Rancho.
                                  Middle Rio Grande.  Rio Grande........  Yes...............  Yes.
                                  Lower Rio Grande..  Rio Grande........  Yes...............  Yes.
----------------------------------------------------------------------------------------------------------------
Note: Recovery Units and Management Units are from the 2002 Recovery Plan.


Table 2--Land Ownership, by State, of Proposed Critical Habitat Areas for Southwestern Willow Flycatcher, Listed
                                    as Approximate Stream Lengths in km (mi)
----------------------------------------------------------------------------------------------------------------
                                                                                                      Other/
              State                   Federal          State          Tribal          Private      unclassified
----------------------------------------------------------------------------------------------------------------
AZ..............................       478 (297)         53 (33)        112 (69)       378 (235)           0 (0)
CA..............................       188 (117)          14 (9)         24 (15)           0 (0)       656 (407)
CA/AZ...........................       190 (118)         19 (12)        110 (68)         45 (28)          12 (7)
CO..............................         29 (18)           0 (0)         26 (16)       210 (131)           9 (6)
NV..............................        120 (75)          14 (8)           0 (0)         22 (13)           0 (0)
NM..............................        127 (79)         64 (40)        122 (76)       330 (205)           0 (0)
UT..............................         68 (42)           0 (0)         52 (32)         42 (26)           0 (0)
                                 -------------------------------------------------------------------------------

[[Page 50562]]

 
    Total.......................      1199 (745)       164 (102)       445 (277)      1027 (638)       525 (326)
----------------------------------------------------------------------------------------------------------------
Notes: Totals do not sum because some stream segments have different ownership on each side of the bank
  resulting in those segments being counted twice. CA/AZ includes the stream segments along the Colorado River
  where California is on one stream bank and Arizona is on the other. Other/Unclassified includes some local
  government ownership and unclassified segments (where land ownership was not available).

    We present brief descriptions below of all proposed critical 
habitat units, and reasons why they meet the definition of critical 
habitat for the flycatcher. The units are organized by Recovery Unit 
and then Management Unit. For each Recovery Unit we provide a broad 
overview of the recent distribution and abundance of flycatcher 
territories. Based upon our criteria, we also specifically list those 
streams we will propose as critical habitat within that Recovery Unit 
that were known to be occupied by flycatchers at the time of listing, 
and possess the physical or biological features that may require 
special management considerations or protection. Detailed site and 
territory summary information used for Recovery and Management Units 
are primarily generated from the USGS Rangewide Database (Sogge and 
Durst 2008) and Flycatcher Rangewide Report (Durst et al. 2008).
    Because of the abundance of information presented in each 
Management Unit description, we are providing a brief overview of the 
information presented in each description. For each Management Unit, we 
begin by stating the numerical territory goal described in the Recovery 
Plan, and in many instances, a brief note about flycatcher territory 
distribution. We next explain whether the Management Unit supported a 
large flycatcher nesting population (as defined in the Criteria Used To 
Identify Critical Habitat, Areas with Large Populations section) in 
order to establish the areas where we initially focused our selection 
of stream segments to propose as critical habitat. For Management Units 
where there was a large population, we provide more specific 
information about the occurrence of flycatcher territories within that 
large population area. If there was no known large flycatcher nesting 
population, we provide information about known flycatcher distribution 
and abundance with that Management Unit. We next present those stream 
segments we are proposing as critical habitat and appropriate location 
and length descriptions. Any stream segments we propose that were not 
known to be occupied at the time of listing, we described as an 
``essential'' segment for flycatcher conservation in order to reach the 
stated recovery goals for this Management Unit. We reiterate the 
description of those proposed segments that were known to be occupied 
by flycatchers at the time of listing. Finally, we explain how the 
proposed designation of stream segments supports the science and 
conservation goals established in the Recovery Plan, and for those 
streams not occupied at the time of listing, we offer information 
supporting why they are considered essential for the conservation of 
the flycatcher.
    For each stream segment being proposed as critical habitat, we 
identify the State and County where it occurs and list the length 
rounded up to the nearest tenth of a kilometer or mile. The specific 
beginning and ending points of each proposed stream segment can be 
found below in the combination of textual descriptions and associated 
maps for each proposed critical habitat unit in the Proposed Regulation 
Promulgation section of this document. In addition, GIS data for all 
proposed stream segments, which include more specific lateral extent 
critical habitat information, may be downloaded online at http://www.fws.gov/southwest/es/arizona/southwes.htm. We also note in our 
descriptions which stream segments are being exempted under section 
4(a)(3) under the Act or are being considered for possible exclusion 
from critical habitat under section 4(b)(2) of the Act. For more 
explanation of why any stream is being exempted or considered for 
exclusion, see the discussions under the Exemptions and Exclusions 
sections below.
    All of the proposed stream segments provide flycatcher habitat for 
breeding, feeding, sheltering, and migration, and subsequently provide 
metapopulation stability, gene flow of the subspecies, protection 
against catastrophic population losses, and connectivity between 
neighboring Management Units and Recovery Units (Service 2002, pp. 74, 
75, 86-92). They also provide habitat to help meet the numerical and 
habitat-related goals identified in the Recovery Plan (Service 2002, 
pp. 77-92). Most of the proposed segments are a subset of those 
identified in the Recovery Plan as areas that provide substantial 
recovery value (Service 2002, pp. D-12--D-15). Since completion of the 
Recovery Plan, additional segments of substantial recovery value have 
been identified through continued survey, analysis, and habitat 
evaluation, and are included in this proposal when needed to reach 
recovery goals. The distribution and abundance of territories and 
habitat within each proposed segment are expected to shift over time as 
a result of natural disturbance events such as flooding that reshape 
floodplains, river channels, and riparian habitat (Service 2002, pp. 
18, D-11-D--13, D-15).

Coastal California Recovery Unit

    This Recovery Unit stretches along the coast of southern California 
from just north of Point Conception south to the Mexico border. In 
2002, 167 flycatcher territories were estimated to occur in this 
Recovery Unit (14 percent of the rangewide total) (Sogge et al. 2003); 
however the most recent 2007 rangewide assessment estimated that the 
number of territories has declined to 120 (9 percent of rangewide 
total) (Durst et al. 2008, p. 12). Since the completion of the Recovery 
Plan, territories have been distributed along 15 relatively small 
watersheds, mostly in the southern third of the Recovery Unit (Service 
2002, p. 64; Durst and Sogge 2008). Unlike most other Recovery Units, 
the Coastal California Unit possesses many streams in proximity to one 
another. However, most breeding sites are small (fewer than five 
territories); the largest populations occur along the San Luis Rey, 
Santa Margarita, and Santa Ynez Rivers (Service 2002, p. 64). In 2001, 
all territories occurred in habitats dominated by native plants, and 
over 60 percent were on government-managed lands (Federal, State, and 
local) (Service 2002, p. 64). This Recovery Unit contains the Santa 
Ynez, Santa Clara, Santa Ana, and San Diego Management Units. The 
stream segments proposed as

[[Page 50563]]

critical habitat are described below under their appropriate Management 
Units.
    Based upon our occupancy criteria (see above), within the Coastal 
California Recovery Unit, the Santa Ynez (1991), Santa Clara (1994), 
and San Luis Rey (1993) Rivers, and Pilgrim Creek (1994) are streams 
that were known to be occupied at the time of listing (1991-1994) 
(Sogge and Durst 2008) where we are proposing critical habitat 
segments. Below we identify that each listed item described in our 
Special Management Considerations or Protection section (see above) 
applies to the streams described in each Management Unit within the 
Coastal California Recovery Unit.

Santa Ynez Management Unit

    The Recovery Plan describes a goal of 75 flycatcher territories in 
the Santa Ynez Management Unit (Service 2002, p. 84). The Santa Ynez 
River is the only stream in this Management Unit known to have 
flycatcher territories (Sogge and Durst 2008).
    We identified a large flycatcher nesting population surrounding the 
lowest portion of the Santa Ynez River in Santa Barbara County, 
California. Flycatcher territories were detected on the Santa Ynez 
River in 1991 (Sogge and Durst 2008). A total of four breeding sites 
are known to occur within our large population area. A high of 26 
flycatcher territories was detected on the lower Santa Ynez River in 
1996, but the known number of territories has fluctuated greatly from 
year-to-year (from 1 to 26) (Sogge and Durst 2008). As a result, more 
critical habitat than just the large population area is being proposed 
to meet the Recovery Plan goal of 75 territories.
    To help reach the Recovery Plan goals, we identified two additional 
areas of flycatcher habitat on the upper Santa Ynez River that are 
considered occupied at the time of listing and a short segment of Mono 
Creek farther upstream outside of our large population area (near 
Gibraltar Reservoir) that was not occupied at the time of listing. As a 
result, we are proposing three Santa Ynez River segments and a segment 
of Mono Creek as flycatcher critical habitat. The lower 27.6-km (17.2-
mi) Santa Ynez River segment occurs immediately upstream from 
Vandenberg AFB. The upper 6.1-km (3.8-mi) and 7.6-km (4.7-mi) segments 
of the Santa Ynez River occur near Gibraltar Reservoir. We are also 
proposing the lowest 2.6 km (1.6 mi) of Mono Creek, also in Santa 
Barbara County.
    The stream segments along the Santa Ynez River were occupied by 
flycatchers at the time of listing and contain the physical or 
biological features essential to the conservation of the species which 
may require special management considerations or protection, for the 
reasons described above. The proposed area of Mono Creek was not 
occupied at the time of listing, but is an essential area for 
flycatcher conservation in order to help meet recovery goals (see 
below).
    The Santa Ynez River and unnamed tributaries (including Mono Creek) 
were described as having substantial recovery value in the Recovery 
Plan (Service 2002, p. 86). These proposed Santa Ynez River and Mono 
Creek segments are anticipated to provide habitat for metapopulation 
stability, gene connectivity through this portion of the flycatcher's 
range, protection against catastrophic population loss, and population 
growth and colonization potential. As a result, these river segments 
and associated flycatcher habitat are anticipated to support the 
strategy, rationale, and science of flycatcher conservation in order to 
meet territory and habitat-related recovery goals.
    Although a 14.7-km (9.1-mi) portion of the lower Santa Ynez River 
segment was occupied at the time of listing, it occurs within the 
boundaries of Vandenberg Air Force Base (AFB). We are exempting this 
portion of the river from designation as critical habitat, under 
section 4(a)(3) of the Act, based on their INRMP which provides a 
benefit to the flycatcher (see Exemptions).

Santa Clara Management Unit

    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Santa Clara Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected in small numbers and sporadically over a 
broad area in this Management Unit.
    There are no large flycatcher nesting populations in the Santa 
Clara Management Unit to help guide us toward a critical habitat area. 
As a result, we sought known flycatcher territories and breeding sites, 
guidance from the Recovery Plan, and knowledge about stream habitat to 
determine critical habitat segments that may be known to be occupied at 
the time of listing and others essential for flycatcher conservation 
(see below). Flycatcher territories have been detected in small numbers 
in the Santa Clara Management Unit, ranging from 0 to 7 territories 
annually between 1995 and 2001 (Sogge and Durst 2008). Three breeding 
sites have been detected on the Santa Clara River and two breeding 
sites each on Piru Creek and the San Gabriel River (Sogge and Durst 
2008).
    We are proposing as critical habitat a segment (79.6 km, 49.4 mi) 
of the Santa Clara River in Ventura and Los Angeles Counties. This 
segment was known to be occupied by flycatchers at the time of listing 
(Sogge and Durst 2008) and has the physical or biological features 
essential to the conservation of the species which may require special 
management consideration or protection, for the reasons described 
above. We are also proposing as flycatcher critical habitat segments of 
the Ventura River (27.5 km, 17.1 mi) in Ventura County; and segments of 
Piru Creek (41.8 km, 26.0 mi), Castaic Creek (4.8 km, 3.0 mi), Little 
Tujunga (2.2 km, 1.4 mi) and Big Tujunga (4.9 km, 3.0 mi) Canyons, and 
the San Gabriel River (14.2 km, 8.8 mi) in Los Angeles County. These 
segments were not occupied at the time of listing, but are essential 
for flycatcher conservation in order to help meet recovery goals, as 
explained below.
    The Santa Clara, Ventura, and San Gabriel Rivers, Piru Creek and 
Big Tujunga Canyon, were identified in the Recovery Plan as having 
substantial recovery value in the Santa Clara Management Unit (Service 
2002, p. 86). Together with the Little Tujunga Canyon and Castaic 
Creeks, these seven stream segments are essential to flycatcher 
conservation because they are anticipated to provide habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, these 
river segments and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.

Santa Ana Management Unit

    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Santa Ana Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected from the headwaters and tributaries of 
the Santa Ana River in the San Bernardino Mountains in San Bernardino 
County, California, down to breeding sites in Riverside County at Prado 
Basin and other nearby separate streams.
    We identified a large flycatcher nesting population that surrounds 
the Santa Ana River and its tributaries in San Bernardino and Riverside 
Counties. Because of the wide distribution and close proximity of 
flycatcher territories,

[[Page 50564]]

nearly all the streams within the Santa Ana Management Unit were 
included in the large population area. Flycatcher territories have been 
detected along the Santa Ana River drainage at about 20 known breeding 
sites. Since 1995, flycatcher territories have been detected along the 
Santa Ana River, and tributaries such as Bear Creek, Mill Creek, Oak 
Glen Creek, Waterman Creek, San Timoteo Creek, and Bautista Creek 
(Sogge and Durst 2008). While breeding sites are numerous, the number 
of territories detected at each site was typically less than five 
(Sogge and Durst 2008). Throughout the entire Management Unit, a high 
of 49 territories was detected in 2001 (Sogge and Durst 2008), but 
limited on-the-ground surveys only detected one territory in 2007 
(Sogge and Durst 2008). In 2007, Durst et al. (2008, p. 12) estimated 
that 28 territories occurred in this Management Unit.
    We are proposing as critical habitat segments of the Santa Ana 
River and tributaries and other nearby streams. None of these areas was 
known to be occupied at the time of listing, but are essential for 
flycatcher conservation in order to meet recovery goals, as explained 
below. On the Santa Ana River, we are proposing an upper 42.3-km (26.3-
mi) segment and a lower 47.8-km (29.7-mi) segment that occur in San 
Bernardino and Riverside Counties. Also occurring in both San 
Bernardino and Riverside Counties, we are proposing a 25.6-km (15.9-mi) 
segment of San Timoteo Creek. We are also proposing segments of the 
following Santa Ana River tributaries in San Bernardino County: a 14.8-
km (9.2-mi) segment of Bear Creek; a 19.2-km (11.9-mi) segment of Mill 
Creek; a 4.6-km (2.9-mi) segment of Oak Glen Creek; and a 5.2-km (3.2-
mi) segment of Waterman Creek (including small portions of the left and 
right forks). In Riverside County, we are proposing a 23.0-km (14.3-mi) 
segment of Bautista Creek.
    This diverse and widely distributed group of seven streams (eight 
stream segments) was identified in the Recovery Plan (although Oak Glen 
Creek was not specifically named as a tributary to the Santa Ana River) 
as areas of substantial recovery value (Service 2002, p. 86). Together, 
these eight stream segments are essential to flycatcher conservation 
because they are anticipated to provide habitat for metapopulation 
stability, gene connectivity through this portion of the flycatcher's 
range, protection against catastrophic population loss, and population 
growth and colonization potential. As a result, these river segments 
and associated flycatcher habitat are anticipated to support the 
strategy, rationale, and science of flycatcher conservation in order to 
meet territory and habitat-related recovery goals.
    We will consider excluding portions of the Santa Ana River, San 
Timoteo Creek, Bautista Creek and Temecula Creek (including Vail Lake) 
within the planning area boundary for the Western Riverside MSHCP from 
the final designation of flycatcher critical habitat under section 
4(b)(2) of the Act. We intend to exclude critical habitat from areas 
covered by the Western Riverside MSHCP based on the protections 
described below (see Exclusions) and per the provisions laid out in the 
MSHCP's implementing agreement, to the extent consistent with the 
requirements of 4(b)(2) of the Act.
    Also, a portion of Bautista Creek occurs on Tribal lands managed by 
the Ramona Band of Cahuilla, California. We will also consider our 
partnership with this Tribe and evaluate the conservation planning and 
management that occurs for potential exclusion under section 4(b)(2) of 
the Act (see Exclusions).

San Diego Management Unit

    The Recovery Plan describes a goal of 125 flycatcher territories in 
the San Diego Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected throughout this Management Unit 
primarily along the rivers and tributaries of the largest river 
drainages in the area, such as the San Luis Rey, Santa Margarita, and 
San Diego Rivers.
    We identified a large flycatcher nesting population that includes 
nearly all of the streams within the San Diego Management Unit. Within 
the San Diego Management Unit, about 24 breeding sites are known to 
occur (Durst et al. 2008, p. 12). A high of 86 flycatcher territories 
were detected in 2001 (Sogge and Durst 2008), and an estimated 77 
territories occurred in 2007 (Durst et al. 2008, p. 12).
    Within this large population area, we identified flycatcher habitat 
on 18 different streams within the San Diego Management Unit that occur 
in San Diego, Riverside, and Orange Counties, California. The streams 
we identified in San Diego County are: San Mateo Creek, Cristianitos 
Creek, San Onofre Creek, Las Flores Creek, Las Pulgas Creek, Fallbrook 
Creek, Santa Margarita River, DeLuz Creek, San Luis Rey River (2 
segments), Pilgrim Creek, Agua Hedionda Creek, San Dieguito River, 
Santa Ysabel Creek, San Diego River (2 segments), Temescal Creek, and 
Sweetwater River. A segment of Temecula Creek travels across San Diego 
and Riverside Counties and a Canada Goberandora Creek segment occurs in 
Orange County.
    The San Luis Rey River and Pilgrim Creek were the only streams in 
this management unit known to be occupied by flycatchers at the time of 
listing. The remaining proposed critical habitat stream segments will 
help reach flycatcher recovery goals within the San Diego Management 
Unit.
    Because of the large number of proposed stream segments within this 
Management Unit, unlike other Management Unit descriptions within this 
proposed rule, the descriptions of proposed critical habitat segments 
within the San Diego Management Unit are separated into smaller groups. 
We will describe the length and general location of each proposed 
stream segment, the status of flycatcher territories, and whether a 
portion is exempted under section 4(a)(3) of the Act or identified for 
possible exclusion under section 4(b)(2) of the Act.
San Luis Rey River
    Flycatcher territories were first detected on San Luis Rey River, 
in San Diego County, California, in 1993. In 2001, a high of 62 
territories were detected at the 7 known breeding sites found on this 
river. A single site on the upper San Luis Rey River typically 
represents a large proportion of all territories known to occur. For 
example, total of 53 flycatcher territories were detected at this site 
in 2001.
    We are proposing as critical habitat two river segments of the San 
Luis Rey River in San Diego County, California. The upper San Luis Rey 
River segment (28.6 km, 17.8 mi) extends from Lake Henshaw to Wilson 
Way, while the lower segment (52.3 km, 32.5 mi) extends from near the 
downstream end of the Pauma Country Club to near Interstate 5. These 
segments are known to be occupied at the time of listing, and contain 
the physical or biological features essential for the conservation of 
the species which may require special management considerations or 
protection, as described above.
    The Rincon and La Jolla Bands of Luiseno Indians have developed 
Management Plans that we will consider for possible exclusion under 
section 4(b)(2) of the Act (see Exclusions). The Pala Band of Luiseno 
Mission Indians also have Tribal lands on the San Luis Rey River, 
therefore we will consider our partnership with this Tribe and evaluate 
conservation planning and management that occurs for potential 
exclusion under section 4(b)(2) of the Act (see Exclusions).

[[Page 50565]]

Santa Margarita River and Pilgrim, De Luz, Las Flores, Las Pulgas, and 
Fallbrook Creeks
    With the exception of Las Pulgas Creek, single flycatcher breeding 
sites have been detected on each of these stream segments. Small 
numbers of flycatcher territories at a single known breeding site have 
been detected annually on Pilgrim Creek (0-4 territories), Las Flores 
Creek (0-3 territories), De Luz Creek (0-1 territories), and Fallbrook 
Creek (0-2 territories) (Sogge and Durst 2008). In contrast, the lone 
known flycatcher breeding site on the Santa Margarita River had as many 
as 23 flycatcher territories in 2003 (Sogge and Durst 2008).
    We are proposing as critical habitat an 18.5-km (11.5-mi) segment 
along Pilgrim Creek (including portions of its left and right forks). 
This segment is known to be occupied at the time of listing, and 
contains the physical or biological features essential for the 
conservation of the species which may require special management 
considerations or protection, as described above.
    We are also proposing segments of flycatcher habitat along the 
Santa Margarita River (41.3 km, 25.6 mi), Fallbrook Creek (5.3 km, 3.3 
mi), De Luz Creek (11.1 km, 6.9 mi), and a continuous Las Flores Creek-
Las Pulgas Creek segment (9.6 km, 6.0 mi) in San Diego County, 
California. These segments were not known to be occupied at the time of 
listing, but are essential for flycatcher conservation in order to help 
meet recovery goals in this Management Unit.
    The portions of the Santa Margarita River (31.8 km, 19.8 mi), De 
Luz Creek (7.8 km, 4.8 mi), Fallbrook Creek (5.3 km, 3.3 mi), Las 
Flores Creek-Las Pulgas Creek (9.6 km, 6.0 mi), and Pilgrim Creek 
(including its left and right forks) (13.5 km, 8.4 mi) that fall within 
the boundaries of Marine Corps Base Camp Pendleton and Naval Weapons 
Station Seal Beach Detachment Fallbrook will be exempted from this 
critical habitat designation under section 4(a)(3) of the Act because 
Camp Pendleton and Fallbrook's INRMPs provide benefits to the 
flycatcher (see Exemptions).
    Because all the flycatcher habitat of Las Flores, Las Pulgas, and 
Fallbrook Creeks occurs entirely within the boundaries of Marine Corps 
Base Camp Pendleton and Naval Weapons Station Seal Beach Detachment 
Fallbrook, no portions of these three streams are proposed as 
flycatcher critical habitat. However, there are remaining upstream 
segments of the Santa Margarita River, and DeLuz and Pilgrim Creeks 
that we are proposing as flycatcher critical habitat. The remaining 
proposed flycatcher critical habitat includes a 9.4-km (5.8-mi) Santa 
Margarita River segment, a 3.3-km (2.1-mi) De Luz Creek segment, and a 
5.0-km (3.1-mi) Pilgrim Creek segment.
Canada Gobernadora Creek
    Canada Gobernadora Creek has had one to two territories detected 
annually between 1999 and 2003 (Sogge and Durst 2008). We are proposing 
as flycatcher critical habitat a 5.9-km (3.6-mi) segment of Canada 
Gobernadora Creek in Orange County, California. This segment was not 
known to be occupied at the time of listing, but is essential for 
flycatcher conservation in order to help meet recovery goals.
    We will consider excluding a portion of Canada Gobernadora Creek 
within the planning area boundary for the Orange County Southern 
Subregion HCP from the final designation of flycatcher critical habitat 
under section 4(b)(2) of the Act. We intend to exclude critical habitat 
from areas covered by the Orange County Southern Subregion HCP based on 
the protections described below (see Exclusions) and per the provisions 
laid out in the HCP's implementing agreement, to the extent consistent 
with the requirements of 4(b)(2) of the Act. We encourage any public 
comment in relation to this consideration.
San Mateo, Cristianitos, and San Onofre Creeks
    We identified segments of flycatcher habitat along San Mateo Creek 
(8.4 km, 5.2 mi), Cristianitos Creek (3.9 km, 2.4 mi), and San Onofre 
Creek (6.6 km, 4.1 mi) in San Diego County, California. A single 
breeding site was detected on San Mateo Creek, with a lone territory 
detected in 1995, 1997, and 2007 (Sogge and Durst 2008). No flycatcher 
territories have been detected on Cristianitos and San Onofre Creeks.
    Because these segments of Cristianitos, San Mateo, and San Onofre 
Creeks occur entirely within the boundaries of Marine Corps Base Camp 
Pendleton, these stream segments will be exempted from this critical 
habitat proposal under section 4(a)(3) of the Act because Camp 
Pendleton's INRMP provides benefits to the flycatcher (see Exemptions). 
Therefore, no portions of San Mateo, Cristianitos, or San Onofre Creeks 
are proposed as flycatcher critical habitat.
Agua Hedionda Creek
    A single site and flycatcher territory was detected on Agua 
Hedionda Creek in 1998 and 1999 (Sogge and Durst 2008). We are 
proposing two separate segments of Agua Hedionda Creek. The upstream 
segment of Agua Hedionda Creek includes small portions of the north 
(1.0 km, 0.6 mi) and south forks (0.4 km, 0.2 mi). The upstream segment 
extends from La Miranda Drive (south fork) and Sycamore Avenue (north 
fork) and extends along the mainstem Agua Hedionda Creek for 5.9 km 
(3.7 mi) downstream to just east of the Rancho Carlsbad Golf Course. 
The downstream segment of Agua Hedionda Creek extends from Cannon Road 
for 2.1 km (1.3 mi) to Agua Hedionda Lagoon. These segments were not 
known to be occupied at the time of listing, but are essential for 
flycatcher conservation because they will help meet recovery goals in 
this Management Unit.
    We will consider excluding portions of Agua Hedionda Creek within 
the Carlsbad HMP from the final designation of flycatcher critical 
habitat under section 4(b)(2) of the Act. We intend to exclude critical 
habitat from areas covered by the Carlsbad HMP based on the protections 
described below (see Exclusions) and per the provisions laid out in the 
HCP's implementing agreement, to the extent consistent with the 
requirements of 4(b)(2) of the Act. We encourage any public comment in 
relation to this consideration.
San Diego, San Dieguito, and Sweetwater Rivers and Santa Ysabel and 
Temescal Creeks
    We identified and are proposing as flycatcher critical habitat 
segments of the San Diego River, San Dieguito River, Santa Ysabel 
Creek, Temescal Creek, and Sweetwater River that occur within San Diego 
County, California.
    Three flycatcher breeding sites are known on the San Dieguito River 
and Santa Ysabel and Temescal Creeks within San Diego County, 
California. Flycatcher territories were first detected there in 1996 
(and annually between 1996 and 2003), with a high of 5 territories in 
1997 (Sogge and Durst 2008). We are proposing a continuous 10.3 km (6.3 
mi) segment of that extends along Santa Ysabel Creek from Ysabel Creek 
Road downstream (1.1 km, 0.7 mi) to the San Dieguito River and 
continues downstream (9.2 km, 5.7 mi) until it terminates at Interstate 
15 and Lake Hodges in San Diego County, California. At the headwaters 
of the San Dieguito River, we are proposing connected segments of Santa 
Ysabel Creek (9.8 km, 6.1 mi) and Temescal Creek (7.6 km, 4.7 mi). 
These segments were not known to be occupied at the time of listing, 
but are essential for flycatcher conservation

[[Page 50566]]

because they will help meet recovery goals.
    A lone breeding site was detected on the San Diego River in 2001, 
with 2 territories (Sogge and Durst 2008). We are proposing two 
essential segments of the San Diego River that are separated by El 
Capitan Reservoir and a long stretch of stream downstream from El 
Capitan Reservoir in San Diego County, California. The upper 7.0-km 
(4.3-mi) San Diego River segment extends from just north of the Cedar 
Creek confluence down to El Capitan Reservoir. The lower 9.5-km (5.9-
mi) San Diego River segment begins at Magnolia Avenue and ends at 
Mission Trails Regional Park. These segments were not known to be 
occupied at the time of listing, but are essential for the flycatcher 
conservation because they will help meet recovery goals.
    A single site and flycatcher territory were detected on the 
Sweetwater River (located south of the San Diego River) from 1997 to 
1999 (Sogge and Durst 2008). We are proposing as critical habitat a 
6.6-km (4.1-mi) segment of the Sweetwater River in San Diego County, 
California, from the Rancho San Diego Golf Course downstream to 
Sweetwater Reservoir.
    We will consider excluding portions of the San Dieguito, San Diego, 
and Sweetwater Rivers and Santa Ysabel Creek within the planning area 
boundary for the San Diego MSCP and HCP from the final designation of 
flycatcher critical habitat under section 4(b)(2) of the Act. We intend 
to exclude critical habitat from areas covered by the San Diego MSHCP 
and HCP based on the protections described below (see Exclusions) and 
per the provisions laid out in the HCP's implementing agreement, to the 
extent consistent with the requirements of 4(b)(2) of the Act. We 
encourage any public comment in relation to this consideration.
    Also, a portion of the San Diego River occurs within the land of 
the Capitan Grande Band of Diegueno Mission Indians of California 
(jointly managed by the Barona Group of Capitan Grande Band of Mission 
Indians and the Viejas [Baron Long] Group of Capitan Grande Band of 
Mission Indians). We will also consider our partnership with this Tribe 
and evaluate the conservation planning and management that occurs for 
potential exclusion under section 4(b)(2) of the Act (see Exclusions).
Temecula Creek
    A total of two breeding sites, holding one flycatcher territory 
each in 1997 and 1998, are known from Temecula Creek (Sogge and Durst 
2008). We have identified and are proposing as critical habitat a 23.9-
km (14.8-mi) segment of Temecula Creek in Riverside and San Diego 
Counties, California, from Vail Lake (including Vail Lake) to Chihuahua 
Creek. This segment was not known to be occupied at the time of 
listing, but is essential for the flycatcher conservation because it 
will help meet recovery goals.
    Where Temecula Creek occurs within the Western Riverside MSHCP, it 
will be considered for exclusion under section 4(b)(2) of the Act (see 
Exclusions).
San Diego Management Unit Summary
    The Santa Margarita River, DeLuz Creek, San Luis Rey River, Pilgrim 
Creek, Agua Hedionda Creek, San Dieguito River, San Diego River, 
Sweetwater River, Temecula Creek, and Canada Gobernadora Creek were 
identified in the Recovery Plan as having substantial recovery value 
(Service 2002, p. 87). The Temescal and Santa Ysabel Creeks were also 
found to have substantial recovery value. Together these segments are 
anticipated to provide habitat for metapopulation stability, gene 
connectivity through this portion of the flycatcher's range, protection 
against catastrophic population loss, and population growth and 
colonization potential. As a result, these 12 river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.

Basin and Mohave Recovery Unit

    The Basin and Mohave Recovery Unit is comprised of a broad 
geographic area including the arid interior lands of southern 
California and a small portion of extreme southwestern Nevada. In 2002, 
there were a total of 69 known flycatcher territories estimated to 
occur (7 percent of the rangewide total), but have declined to an 
estimated 51 territories in 2007 (Durst et al. 2008. p. 12). With the 
exception of breeding sites on the Owens and Kern Rivers, all known 
breeding sites have fewer than five territories (Service 2002, p. 64). 
As of 2002, all flycatcher territories were in riparian habitats 
dominated by native plants, and approximately 70 percent are on 
privately owned lands (Service 2002, p. 64). Because there has been 
little change in the amount of known flycatcher breeding sites since 
completion of the Recovery Plan and the number of estimated territories 
has declined, flycatcher habitat use and land ownership are likely 
similar today. The Recovery Unit contains the Owens, Kern, Mohave, 
Salton, and Amargosa Management Units. The stream segments proposed as 
critical habitat are described below in their appropriate Management 
Units.
    Based upon our occupancy criteria (see above), within the Basin and 
Mohave Recovery Unit, the South Fork Kern (1993) and Owens Rivers 
(1993) are streams that were known to be occupied at the time of 
listing (1991-1994) (Sogge and Durst 2008) where we are proposing 
critical habitat segments. Below we identify that each listed item 
described in our Special Management Considerations or Protection 
section (see above) applied to the streams described in each Management 
Unit within the Basin and Mohave Recovery Unit.

Owens Management Unit, CA

    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Owens Management Unit (Service 2002, p. 84). The Owens River is the 
only stream in the Management Unit known to have flycatcher territories 
and is the most northern in the Basin and Mohave Recovery Unit.
    We identified a large flycatcher nesting population along the Owens 
River within Mono and Inyo Counties, California. Nesting flycatchers 
have been detected at four sites within this area, with a high of 29 
territories detected in 1999 (Sogge and Durst 2008). Within this large 
population area, we are proposing as critical habitat a 128.5-km (79.9-
mi) continuous segment of the Owens River (from Long Lake Dam to just 
north of Tinemaha Reservoir) within Inyo and Mono Counties, California.
    The segment of the Owens River proposed as critical habitat is 
known to be occupied by flycatchers at the time of listing, and 
contains the physical or biological features essential to the 
conservation of the species which may require special management 
considerations or protection, for the reasons described above.
    The Owens River is the only stream identified in the Recovery Plan 
as having substantial recovery value within the Owens Management Unit 
(Service 2002, p. 88). The Owens River segment we are proposing is 
anticipated to provide habitat for metapopulation stability, gene 
connectivity through this portion of the flycatcher's range, protection 
against catastrophic population loss, and population growth and 
colonization potential. As a result, this river segment and associated 
flycatcher habitat is anticipated to support the strategy, rationale, 
and science of flycatcher conservation in order to meet territory and 
habitat-related recovery goals.

[[Page 50567]]

    This entire Owens River segment occurs within the boundaries of 
land owned and managed by the Los Angeles Department of Water and Power 
that we are considering for exclusion under section 4(b)(2) of the Act 
(see Exclusions).

Kern Management Unit, CA

    The Recovery Plan describes a goal of 75 flycatcher territories in 
the Kern Management Unit (Service 2002, p. 84). The South Fork Kern 
River and Canebrake Creek within Kern County, California, are the only 
streams known to have flycatcher territories within this Management 
Unit.
    We identified a large flycatcher nesting population along the lower 
portion of the South Fork Kern River. Flycatchers were first detected 
nesting on the South Fork Kern River in 1993 and have been detected 
annually through at least 2007 (Sogge and Durst 2008). A high of 38 
territories were detected in 1997 within this Management Unit (Sogge 
and Durst 2008). The South Fork Kern River is known to be occupied by 
flycatchers at the time of listing, and contains the physical or 
biological features essential to the conservation of the species which 
may require special management considerations or protection, as 
described above.
    Because of the need to increase the abundance of flycatcher 
territories to reach recovery goals in the Kern Management Unit, we 
also identified a small portion of Canebrake Creek in Kern County 
within our large population areas as being essential to flycatcher 
conservation (see below). Canebrake Creek (a tributary to the South 
Fork Kern River) was not known to be occupied at the time of listing, 
but territories were detected in 1998 (Sogge and Durst 2008).
    We are proposing as critical habitat a 23.8-km (14.8-mi) portion of 
the South Fork Kern River (including the upper 1.0-km, 0.6-mi, of Lake 
Isabella) and a 1.7-km (1.0-mi) segment of Canebrake Creek in Kern 
County, California.
    The South Fork Kern River segment was the lone segment identified 
within this Management Unit as having substantial recovery value in the 
Recovery Plan (Service 2002, p. 88). This South Fork Kern River segment 
and the additional Canebrake Creek segment are essential to flycatcher 
conservation because they are anticipated to provide habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, these 
river segments and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.
    Because the South Fork Kern River is located within the South Fork 
Kern River Wildlife Area (which includes the upper portion of Lake 
Isabella), Haffenfeld Ranch, and Sprague Ranch, this segment will be 
considered for exclusion under section 4(b)(2) of the Act (see 
Exclusions).

Mohave Management Unit, CA

    The Recovery Plan describes a goal of 25 territories in the Mohave 
Management Unit (Service 2002, p. 84). The Mohave River and Holcomb 
Creek are the only streams known to have flycatcher territories within 
the Mohave Management Unit (Sogge and Durst 2008).
    There are no large flycatcher nesting populations in the Mohave 
Management Unit to help guide us toward a critical habitat area, and no 
areas were known to be occupied at the time of listing. Therefore, to 
identify the areas that would contribute to meeting recovery goals for 
this Management Unit, we used information based on currently known 
flycatcher territories and breeding sites, guidance from the Recovery 
Plan, and knowledge about stream habitat to determine areas essential 
for flycatcher conservation (see below).
    Flycatchers were first detected nesting on the Mohave River in 1995 
and Holcomb Creek in 1999. A total of five breeding sites occur along 
the Mohave River and one site at Holcomb Creek (Sogge and Durst 2008). 
A high of 12 territories were detected at these breeding sites in 2001 
(Sogge and Durst 2008). In addition, we found additional areas that 
would contribute to meeting recovery goals in the West Fork Mohave 
River and Deep Creek.
    We are proposing as critical habitat a 35.7-km (22.2-mi) segment of 
the Mojave River, an 11.2-km (6.9-mi) segment of the West Fork Mohave 
River, a 19.6-km (12.2-mi) segment of Holcomb Creek, and a 20.0-km 
(12.5-mi) segment of Deep Creek (including Mohave River Forks 
Reservoir) in San Bernardino County, California, near the Town of 
Victorville. Deep Creek connects Holcomb Creek with the Mohave Forks 
Reservoir. All of these segments were not known to be occupied at the 
time of listing, but are essential for flycatcher conservation because 
they will help meet recovery goals.
    Three of these streams (Mohave River, West Fork Mohave River, and 
Deep Creek) were identified as having substantial recovery value in the 
Recovery Plan (Service 2002, p. 88). Holcomb Creek was not specifically 
identified in the Recovery plan, but since flycatcher territories have 
been detected there we find it also important to meet recovery goals. 
Together, these four proposed critical habitat segments are essential 
to flycatcher conservation because they are anticipated to provide 
habitat for metapopulation stability, gene connectivity through this 
portion of the flycatcher's range, protection against catastrophic 
population loss, and population growth and colonization potential. As a 
result, these river segments and associated flycatcher habitat are 
anticipated to support the strategy, rationale, and science of 
flycatcher conservation in order to meet territory and habitat-related 
recovery goals.

Salton Management Unit, CA

    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Salton Management Unit (Service 2002, p. 84). A single known 
flycatcher breeding site occurs along San Felipe Creek in this 
Management Unit.
    There are no large flycatcher nesting populations solely in the 
Salton Management Unit, and no areas were known to be occupied at the 
time of listing. However, portions of the Salton Management Unit were 
part of a large population area because of the proximity of flycatcher 
territories in the adjacent San Diego and Santa Ana Management Units. 
Therefore, to identify the areas that would contribute to meeting 
recovery goals for this Management Unit, we used information based on 
currently known flycatcher territories and breeding sites, guidance 
from the Recovery Plan, and knowledge about stream habitat to determine 
areas essential for flycatcher conservation (see below). From 1998 to 
2002, flycatcher territories were detected in small numbers (2 to 4 
territories) at single breeding site on San Felipe Creek within this 
Management Unit (Sogge and Durst 2008).
    We are proposing as critical habitat a 21.2-km (13.2-mi) segment of 
San Felipe Creek and a short 1.0-km (0.6 mi) segment of Mill Creek in 
San Diego County, California. This short portion of Mill Creek is 
connected to the proposed Mill Creek segment within the Santa Ana 
Management Unit. We find that both of the segments are essential for 
flycatcher conservation because they will help meet recovery goals.

[[Page 50568]]

    Although the San Felipe Creek segment proposed as critical habitat 
was the only river segment identified in the Recovery Plan as having 
substantial recovery value (Service 2002, p. 88), the additional Mill 
Creek segment was identified within the Santa Ana Management Unit as 
having substantial recovery value (Service 2002, p. 88). As a result, 
the San Felipe and Mill Creek segments, along with the other 
populations and river segments in proximity within the adjacent San 
Diego and Santa Ana Management Units are essential to flycatcher 
conservation because they are anticipated to provide habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, these 
river segments and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.
    Part of San Felipe Creek occurs within the Iipay Nation of Santa 
Ysabel, California (formerly the Santa Ysabel Band of Diegueno Mission 
Indians of the Santa Ysabel Reservation), so we will consider our 
Tribal partnership and evaluate the conservation and management of the 
area for exclusion under section 4(b)(2) of the Act (see Exclusions).

Amargosa Management Unit, CA and NV

    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Amargosa Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected in small numbers within this Management 
Unit.
    There are no large flycatcher nesting populations in the Amargosa 
Management Unit to help guide us toward a critical habitat area, and no 
areas were known to be occupied at the time of listing. Therefore, to 
identify the areas that would contribute to meeting recovery goals for 
this Management Unit, we used information based on currently known 
flycatcher territories and breeding sites, guidance from the Recovery 
Plan, and knowledge about stream habitat to determine areas essential 
for flycatcher conservation (see below).
    Within the Amargosa Management Unit, one breeding site has been 
detected on the Amargosa River and two breeding sites are known within 
the Ash Meadows National Wildlife Refuge (Sogge and Durst 2008). From 
1998 to 2007, one to seven territories were detected at these breeding 
sites within this Management Unit (Sogge and Durst 2008). Therefore, we 
sought additional areas for critical habitat that could contribute to 
recovery goals in this Management Unit.
    We are proposing, as flycatcher critical habitat, segments of the 
Amargosa River (12.3 km, 7.7 mi) and Willow Creek (3.5 km, 2.2 mi) in 
Inyo and San Bernardino Counties, California. We are also proposing 
approximately 5.7 km (3.5 mi) of Carson Slough and 100.1 km (62.2 mi) 
of associated unnamed riparian areas that occur within the Ash Meadows 
National Wildlife Refuge in Nye County, Nevada. No known breeding sites 
have yet to be detected on the Amargosa River and Willow Creek segments 
in California. None of the proposed segments were known to be occupied 
at the time of listing.
    Carson Slough and the unnamed riparian areas within the Ash Meadows 
National Wildlife Refuge, and the Amargosa River in California, were 
described in the Recovery Plan as having substantial recovery value 
(Service 2002, p. 88). Willow Creek was also determined to be essential 
in order to reach recovery goals in this Management Unit. Together, 
these four proposed critical habitat segments are essential to 
flycatcher conservation because they are anticipated to provide habitat 
for metapopulation stability, gene connectivity through this portion of 
the flycatcher's range, protection against catastrophic population 
loss, and population growth and colonization potential. As a result, 
these river segments and associated flycatcher habitat are anticipated 
to support the strategy, rationale, and science of flycatcher 
conservation in order to meet territory and habitat-related recovery 
goals.

Lower Colorado Recovery Unit

    This is a geographically large and ecologically diverse Recovery 
Unit, encompassing the Colorado River and its major tributaries (such 
as the Virgin, Pahranagat, Muddy, and Little Colorado Rivers) from the 
high-elevation streams in White Mountains of East-Central Arizona and 
Central Western New Mexico to the mainstem Colorado River through the 
Grand Canyon downstream through the arid lands along the lower Colorado 
River to the Mexico border (Service 2002, p. 64).
    In 2002, despite its size, the Lower Colorado Recovery Unit had 
only 127 known flycatcher territories (11 percent of the rangewide 
total), most of which occur away from the mainstem Colorado River 
(Sogge et al. 2003). In 2007, 150 territories were estimated to occur 
within this Recovery Unit (also 11 percent of the rangewide total) 
(Durst et al. 2008, p. 12). Most sites included fewer than 5 
territories; the largest populations (most of which are fewer than 10 
territories) are found on the Bill Williams, Virgin, and Pahranagat 
Rivers (Service 2002, p. 64). Approximately 69 percent of territories 
are found on government-managed lands and 8 percent are on Tribal lands 
(Service 2002, p. 64). Habitat characteristics range from purely native 
(including high-elevation and low-elevation willow) to exotic 
(primarily tamarisk)-dominated stands (Service 2002, p. 64). Because of 
the similarity in abundance and distribution of territories since 2002, 
these land ownership and habitat-use statistics are likely similar 
today. This Recovery Unit contains the Little Colorado, Middle 
Colorado, Virgin, Pahranagat, Bill Williams, Hoover to Parker Dam, and 
Parker Dam to Southerly International Border Management Units.
    Based upon our occupancy criteria (see above), within the Lower 
Colorado Recovery Unit, the Colorado (1993), Little Colorado (1993), 
Bill Williams (1994), Big Sandy (1994), Santa Maria (1994), and Zuni 
(1993) Rivers, and Rio Nutria (1993) are streams that were known to be 
occupied at the time of listing (1991-1994) (Sogge and Durst 2008) 
where we are proposing critical habitat segments. At the time of 
listing only specific sites on the Colorado River within the Middle 
Colorado Management Unit were known to be specifically occupied by 
nesting birds, but based upon our criteria and the wide-ranging nature 
of this bird as a neotropical migrant and its use of migration stop-
over habitat, we also consider the Colorado River within the Hoover to 
Parker Dam and Parker Dam to Southerly International Border Management 
Units occupied at the time of listing. Below we identify that each 
listed item described in our Special Management Considerations or 
Protection section (see above) applies to the streams described in each 
Management Unit within the Lower Colorado Recovery Unit.

Little Colorado Management Unit, AZ and NM

    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Little Colorado Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected on the Little Colorado and Zuni Rivers 
and Rio Nutria within this large area along the New Mexico and Arizona 
border (Sogge and Durst 2008).

[[Page 50569]]

    We identified a large flycatcher nesting population surrounding the 
Little Colorado River, near the Town of Greer in Apache County, 
Arizona. Flycatcher territories have been detected along the Little 
Colorado River, Zuni River, and Rio Nutria since 1993. A high of 16 
territories were detected on these river segments in 1996, but known 
territories have declined, with only 2 and 6 territories detected in 
2005 and 2006, respectively (Sogge and Durst 2008). Because of the need 
to increase the abundance of flycatcher territories to reach recovery 
goals, we also identified the Zuni River and Rio Nutria in McKinley 
County, New Mexico, and the West Fork Little Colorado River, in Apache 
County, Arizona (see below). No flycatcher territories are known from 
the West Fork Little Colorado River.
    We are proposing as critical habitat a contiguous 8.8-km (5.5-mi) 
segment of the West Fork Little Colorado River and a 17.6-km (10.9-mi) 
segment of the Little Colorado River. This West Fork and Little 
Colorado River segment begins where U.S. Forest Service (Forest 
Service) Road 113 crosses the West Fork and extends downstream to its 
confluence with the Little Colorado River, through the Town of Greer, 
and ends at the Diversion Ditch. The Little Colorado River was known to 
be occupied at the time of listing, and contains the physical or 
biological features essential to the conservation of the species which 
may require special management considerations or protection, as 
described above. The West Fork Little Colorado River was not known to 
be occupied at the time of listing, but is essential to flycatcher 
conservation of the flycatcher in order to meet recovery goals, as 
described above.
    We are also proposing as critical habitat a contiguous segment of 
the Rio Nutria (35.8 km, 22.2 mi) and the Zuni River (55.4 km, 34.4 mi) 
in McKinley County, New Mexico. The Rio Nutria segment begins at the 
Nutria Diversion Dam, extends to the Zuni River, and continues along 
the Zuni River to the Arizona and New Mexico State Line. Both of these 
segments were known to be occupied at the time of listing, and contain 
the physical or biological features essential to the conservation of 
the species which may require special management considerations or 
protection, as described above.
    The Little Colorado River, Rio Nutria, and Zuni River, and the West 
Fork Little Colorado River segments were all identified in the Recovery 
Plan as areas with substantial recovery value (Service 2002, p. 89). 
These four stream segments that we are proposing as critical habitat 
within the Little Colorado Management Unit are anticipated to provide 
habitat for metapopulation stability, gene connectivity through this 
portion of the flycatcher's range, protection against catastrophic 
population loss, and population growth and colonization potential. As a 
result, these river segments and associated flycatcher habitat are 
anticipated to support the strategy, rationale, and science of 
flycatcher conservation in order to meet territory and habitat-related 
recovery goals.
    We will consider our partnership and evaluate the conservation and 
management of the Zuni River and Rio Nutria where they occur within the 
Navajo Nation and the Zuni Pueblo for exclusion under section 4(b)(2) 
of the Act (see Exclusions).

Virgin Management Unit, UT, AZ, and NV

    The Recovery Plan describes a goal of 100 flycatcher territories in 
the Virgin Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected along a broad area of the Virgin River 
within this Management Unit through the States of Utah, Arizona, and 
Nevada (Sogge and Durst 2008).
    We identified a large flycatcher nesting population along an 
essential segment of the Virgin River where it occurs through 
Washington County, Utah; Mohave County, Arizona; and Clark County, 
Nevada. Flycatchers were first detected nesting on this portion of the 
Virgin River in 1995. A total of seven breeding sites have been 
detected within this large population area through 2007 (Durst et al. 
2008, p. 12). Also, a high of 43 territories were estimated to occur 
within this Management Unit in 2007 (Durst et al. 2008, p. 12), most 
occurring within the State of Nevada, although territories are also 
known along the Virgin River in Utah and Arizona.
    We are proposing as critical habitat a 152.0-km (94.4-mi) segment 
(total length) of the Virgin River that begins at Berry Springs in 
Washington County, Utah, continues 47.5 km (29.5 mi) through the State 
of Utah, then extends 56.0 km (34.8 mi) through the Town of Littlefield 
and the State of Arizona, and then 48.4 km (30.0 mi) through the State 
of Nevada until it ends at Colorado River Mile 280 at the upper end of 
Lake Mead, Clark County, Nevada. This segment was not known to be 
occupied at the time of listing, but is being proposed as critical 
habitat because it is essential for the conservation of the flycatcher 
in the Virgin River Management Unit in order to meet recovery goals.
    The Virgin River was identified as having substantial recovery 
value in the Recovery Plan (Service 2002, p. 89). This essential 
segment of the Virgin River we are proposing as critical habitat within 
the Virgin River Management Unit is anticipated to provide habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, this 
river segment and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.
    Where the Virgin River occurs through the planning area of the 
Clark County Multiple Species HCP and the Overton State Wildlife Area, 
we will consider those segments for exclusion under section 4(b)(2) of 
the Act (see Exclusions).

Middle Colorado Management Unit, AZ

    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Middle Colorado Management Unit (Service 2002, p. 84).
    We identified a large flycatcher nesting population along the lower 
portion of the Colorado River within the Grand Canyon (including upper 
Lake Mead) in Mohave County, Arizona. Flycatchers were first detected 
nesting along the Colorado River within the Middle Colorado Management 
Unit in 1993. A total of 16 breeding sites have been detected in our 
selected segment through 2007. Also, a high of 16 territories was 
detected within this Management Unit in 1998 (Sogge and Durst 2008), 
but has declined to an estimated 4 territories in 2007 (Durst et al. 
2008, p. 12).
    We are proposing as critical habitat a 74.1-km (46.0-mi) segment of 
the Colorado River that extends from the middle of Lake Mead upstream 
to Colorado River Mile 243. This entire segment is within the full pool 
elevation of Lake Mead. The Colorado River in Mohave County, Arizona, 
is known to be occupied by flycatchers at the time of listing, and 
contains the physical or biological features essential to the 
conservation of the species which may require special management 
considerations or protection, as described above.
    This Middle Colorado River segment was identified as having 
substantial recovery value in the Recovery Plan (Service 2002, p. 89). 
The portion of the Colorado River we are proposing as critical habitat 
within the Middle

[[Page 50570]]

Colorado Management Unit is anticipated to provide habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, this 
river segment and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.
    Where the Colorado River occurs within the planning area of the 
Lower Colorado River Multi-Species Conservation Plan (LCR MSCP) (due to 
the completed HCP) and Hualapai Indian Tribal land (due to their 
Management Plan), it will be considered for exclusion under section 
4(b)(2) of the Act (see Exclusions).

Pahranagat Management Unit, NV

    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Pahranagat Management Unit (Service 2002, p. 84).
    We identified a large flycatcher nesting population along the 
Pahranagat River and the Muddy River. Flycatchers were first detected 
nesting on these portions of the Pahranagat and Muddy Rivers in 1997. 
Through 2007, a total of three breeding sites were know to occur within 
these segments, with a high of 38 territories detected in 2006 (Durst 
and Sogge 2008).
    We are proposing as critical habitat a 6.3-km (3.9-mi) river 
segment of the Pahranagat River through the Key Pittman Wildlife Area 
in Lincoln County, Nevada, and a 17.3-km (10.8-mi) segment of the 
Pahranagat River through the Pahranagat National Wildlife Refuge in 
Clark County, Nevada. We are also proposing as critical habitat a 3.1-
km (1.9 mi) segment of the Muddy River within the Overton Wildlife Area 
in Clark County, Nevada. These segments were not known to be occupied 
at the time of listing, but are being proposed as critical habitat 
because they are essential for flycatcher conservation in order to meet 
recovery goals in the Pahranagat Management Unit.
    The Pahranagat and Muddy River segments were identified as having 
substantial recovery value in the Recovery Plan (Service 2002, pp. 89-
90). These essential river segments we are proposing as critical 
habitat within the Pahranagat Management Unit are anticipated to 
provide habitat for metapopulation stability, gene connectivity through 
this portion of the flycatcher's range, protection against catastrophic 
population loss, and population growth and colonization potential. As a 
result, these river segments and associated flycatcher habitat are 
anticipated to support the strategy, rationale, and science of 
flycatcher conservation in order to meet territory and habitat-related 
recovery goals.
    We will consider excluding the Pahranagat River where it occurs 
within the Key Pittman State Wildlife Area and the Muddy River within 
the Overton State Wildlife Area as result of completed Management Plans 
under section 4(b)(2) of the Act (see Exclusions).

Bill Williams Management Unit, AZ

    The Recovery Plan describes a goal of 100 flycatcher territories in 
the Bill Williams Management Unit (Service 2002, p. 84). Flycatcher 
territories are distributed across a broad area of this Management 
Unit.
    We identified a large flycatcher nesting population in this 
Management Unit. It encompasses areas along the Big Sandy River near 
the Town of Wikieup in Mohave County; the Big Sandy, Santa Maria, and 
Bill Williams Rivers at the upper end of Alamo Lake in La Paz County; 
and along the Bill Williams River between Alamo Dam and the Colorado 
River in La Paz and Mohave Counties. Flycatchers were first detected 
nesting on the Big Sandy, Santa Maria, and Bill Williams Rivers in 1994 
(Sogge and Durst 2008). Through 2007, a total of 9 breeding sites 
occurred within these segments with a high of 61 territories detected 
in 2004 (Durst and Sogge 2008). Since 2007, an additional breeding site 
was discovered on the upper Big Sandy River and an additional two sites 
discovered along the Bill Williams River.
    We are proposing as critical habitat a 35.3-km (21.9-mi) segment of 
the upper Big Sandy River from the Town of Wikieup to Groom Peak Wash 
in La Paz County, Arizona. At upper Alamo Lake where the Big Sandy, 
Santa Maria, and Bill Williams Rivers converge, we are proposing, 
collectively, a 23.4-km (14.5-mi) portion of these three streams in La 
Paz County. Between Alamo Dam and the Colorado River, we are proposing 
as critical habitat a 17.8-km (11.0-mi) segment of the Bill Williams 
River near Lincoln Ranch in La Paz and Mohave Counties, Arizona. Also 
below Alamo Dam, we are proposing as critical habitat the last 21.3 km 
(13.2 mi) of the Bill Williams River before it reaches the Colorado 
River at Lake Havasu, from Planet Ranch through the Bill Williams 
National Wildlife Refuge. All of these areas are known to be occupied 
by flycatchers at the time of listing, and contain the physical or 
biological features essential for the conservation of the species which 
may require special management considerations or protection, as 
described above.
    The Big Sandy, Santa Maria, and Bill Williams Rivers were all 
identified as having substantial recovery value in the Recovery Plan 
(Service 2002, p. 90). These river segments we are proposing within the 
Bill Williams Management Unit are anticipated to provide habitat for: 
Metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, these 
river segments and associated flycatcher habitat is anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.
    We will consider excluding the Bill Williams, Santa Maria, and Big 
Sandy Rivers at the upper end of Alamo Lake within the Alamo Lake 
Wildlife Area due to a completed Management Plan and the Bill Williams 
River where it occurs within the planning area of the Lower Colorado 
River MSCP under section 4(b)(2) of the Act (see Exclusions).

Hoover to Parker Dam Management Unit, AZ and CA

    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Hoover to Parker Dam Management Unit (Service 2002, p. 84).
    We identified a large flycatcher nesting population along the 
Colorado River within Mohave and La Paz Counties, Arizona, and San 
Bernardino County, California. Flycatchers were first detected nesting 
on this portion of the Colorado River in 1995 (Sogge and Durst 2008). 
Through 2007, a total of 6 breeding sites occurred within this segment 
(Durst 2008, p. 12) with a high of 34 territories detected in 2004 
(Durst and Sogge 2008).
    We are proposing as critical habitat a 106.9-km (66.4-mi) river 
segment of the Colorado River from near Davis Dam downstream through 
Lake Havasu to Parker Dam. We are also proposing a small 1.7-km, (1.0-
mi) portion of the Bill Williams River immediately adjacent to the 
Colorado River. Both of these segments are known to be occupied by 
flycatchers at the time of listing, and contain the physical or 
biological features essential to the conservation of the species which 
may require special management considerations or protection, as 
described above.

[[Page 50571]]

    These segments of the Colorado River and Bill Williams River were 
identified as having substantial recovery value in the Recovery Plan 
(Service 2002, p. 90). These river segments are anticipated to provide 
flycatcher habitat for metapopulation stability, gene connectivity 
through this portion of the flycatcher's range, protection against 
catastrophic population loss, and population growth and colonization 
potential. As a result, these river segments and associated flycatcher 
habitat are anticipated to support the strategy, rationale, and science 
of flycatcher conservation in order to meet territory and habitat-
related recovery goals.
    We will consider excluding portions of the Colorado and Bill 
Williams Rivers in this segment that occur within the planning area of 
the LCR MSCP and those portions of the Colorado River that occur on 
Fort Mohave and Chemehuevi Tribal lands as a result of their Management 
Plans under section 4(b)(2) of the Act (see Exclusions).

Parker Dam to Southerly International Border Management Unit, AZ and CA

    The Recovery Plan describes a goal of 150 flycatcher territories in 
the Parker Dam to Southerly International Border Management Unit 
(Service 2002, p. 84).
    We identified a large flycatcher nesting population along the 
Colorado River within La Paz and Yuma Counties, Arizona, and San 
Bernardino, Riverside, and Imperial Counties, California. Flycatcher 
territories were first detected nesting on this portion of the Colorado 
River in 1995 (Sogge and Durst 2008). Through 2007, a total of 16 
breeding sites occurred within this Management Unit (Durst 2008, p.12), 
with a high of 15 territories detected in 1996 (Durst and Sogge 2008). 
In 2007, it was estimated that only one territory occurred within these 
two river segments (Durst and Sogge 2008).
    We are proposing as critical habitat two Colorado River segments: 
(1) A 65.0-km (40.4-mi) river segment from Parker Dam downstream past 
Highway 62, (2) a more southern 148.0-km (92.0-mi) segment from near 
Highway 10 downstream to near the Town of Yuma. The Colorado River is 
known to be occupied by flycatchers at the time of listing, and 
contains the physical or biological features essential to flycatcher 
conservation which may require special management considerations or 
protection, as described above.
    These segments of the Colorado River were identified as having 
substantial recovery value in the Recovery Plan (Service 2002, p. 90). 
These river segments are anticipated to provide flycatcher habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, these 
river segments and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.
    We will consider excluding portions of the Colorado River that 
occur within the planning area of the LCR MSCP and that occur on 
Colorado Indian and Quechan (Fort Yuma) Tribal lands as result of their 
Management Plans under section 4(b)(2) of the Act (see Exclusions).

Upper Colorado Recovery Unit

    The Upper Colorado Recovery Unit is comprised of a broad geographic 
area covering much of the Four Corners area of southeastern Utah and 
southwestern Colorado, with smaller portions of northwestern Arizona 
and northeastern New Mexico. Ecologically, this area may be an 
intergradation area between the southwestern willow flycatcher 
subspecies and the Great Basin willow flycatcher subspecies (Service 
2002, p. 64). Flycatchers are only known to breed at five breeding 
sites across this broad Recovery Unit, representing an estimated high 
of 10 territories occurring in 2007 (Durst et al. 2008, p. 13). 
However, this low number of breeding sites and territories (less than 1 
percent of the rangewide total) is probably a function of relatively 
low survey effort rather than an accurate reflection of the bird's 
actual numbers and distribution (Service 2002, p. 64). Much willow 
riparian habitat occurs along drainages within this Recovery Unit and 
remains to be surveyed (Service 2002, p. 64). The Upper Colorado 
Recovery Unit contains the Powell and San Juan Management Units. The 
stream segments proposed as critical habitat are described below in 
their appropriate Management Units.
    Based upon our occupancy criteria (see above), within the Upper 
Colorado Recovery Unit, no streams were known to be occupied at the 
time of listing (1991-1994) (Sogge and Durst 2008). Below we identify 
that each listed item described in our Special Management 
Considerations or Protection section (see above) applies to the streams 
described in each Management Unit within the Upper Colorado Recovery 
Unit.

San Juan Management Unit, CO, NM, AZ, and UT

    The Recovery Plan describes a goal of 25 flycatcher territories in 
the San Juan Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected in small numbers over a broad area of 
the southwestern Colorado and northwestern New Mexico within the 
Management Unit.
    There were no large flycatcher nesting populations in the San Juan 
Management Unit to help guide us toward a critical habitat area, and no 
areas were known to be occupied at the time of listing. Therefore, to 
identify the areas that would contribute to meeting recovery goals for 
this Management Unit, we used information based on known flycatcher 
territories and breeding sites, guidance from the Recovery Plan, and 
knowledge about stream habitat to determine critical habitat segments 
that may be essential for flycatcher conservation (see below). In 2007, 
10 territories were estimated to occur (within a total of 3 breeding 
sites) along the Los Pinos River in southwestern Colorado in La Plata 
County, Colorado, and along the San Juan River in San Juan County, New 
Mexico (Durst et al. 2008, p. 13). Through 2007, no known breeding 
sites have yet to be detected in the Utah portion of this Management 
Unit (Sogge and Durst 2008).
    We are proposing as critical habitat a segment of the Los Pinos 
River in La Plata County, Colorado (46.0 km, 28.6 mi); a segment of the 
San Juan River in San Juan County, New Mexico (3.5 km, 2.2 mi); and a 
segment of the San Juan River in San Juan County, Utah (51.7 km, 32.1 
mi). The Los Pinos River segment begins near County Road 501 and occurs 
through the Town of Bayfield and ends near the Colorado and New Mexico 
State Line. The San Juan River segment in New Mexico occurs in 
northwestern New Mexico, just upstream and downstream of Malpais Arroyo 
near the Town of Shiprock. The San Juan River, Utah, segment occurs 
from upstream of the State Route 262 Bridge downstream to Chinle Creek. 
These segments were not known to be occupied at the time of listing, 
but are essential for flycatcher conservation in order to help meet 
recovery goals in this Management Unit.
    These segments of the San Juan and Los Pinos Rivers were identified 
as having substantial recovery value in the Recovery Plan (Service 
2002, p. 88). These essential river segments are anticipated to provide 
flycatcher habitat for metapopulation stability, gene connectivity 
through this portion of the

[[Page 50572]]

flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, these 
river segments and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.
    We will consider our partnership and evaluate the conservation and 
management of the Los Pinos River in Colorado, where it occurs within 
the Southern Ute Tribal Land, and the San Juan River where it occurs on 
the Navajo Nation for exclusion under section 4(b)(2) of the Act (see 
Exclusions).

Powell Management Unit, UT and AZ

    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Powell Management Unit (Service 2002, p. 84). No flycatcher 
territories have been detected in this Management Unit (Sogge and Durst 
2008).
    There were no large flycatcher nesting populations in the Powell 
Management Unit to help guide us toward a critical habitat area, and no 
areas were known to be occupied at the time of listing. Therefore, to 
identify the areas that would contribute to meeting recovery goals for 
this Management Unit, we used information based on guidance from the 
Recovery Plan and available information about stream habitats to 
determine critical habitat segments that may be essential for 
flycatcher conservation (see below).
    We are proposing as critical habitat a segment of the Paria River 
in Kane County, Utah (19.0 km, 11.8 mi). This Paria River segment 
occurs from its confluence with Cottonwood Wash and ends at Highway 89. 
This segment was not known to be occupied by flycatchers at the time of 
listing. This river segment may be able develop and sustain flycatcher 
habitat and territories and therefore is essential to flycatcher 
conservation in order to help meet recovery goals in this Management 
Unit. As noted earlier in this proposed rule (see Public Comments), we 
are specifically seeking information about this proposed Paria River 
segment, as well as information about other flycatcher habitat, 
management, and detections in the Powell Management Unit.
    This segment of the Paria River was identified as having 
substantial recovery value in the Recovery Plan (Service 2002, p. 88). 
This essential river segment is anticipated to provide flycatcher 
habitat for metapopulation stability, gene connectivity through this 
portion of the flycatcher's range, protection against catastrophic 
population loss, and population growth and colonization potential. As a 
result, this river segment and associated flycatcher habitat are 
anticipated to support the strategy, rationale, and science of 
flycatcher conservation in order to meet territory and habitat-related 
recovery goals.

Gila Recovery Unit

    The Gila Recovery Unit includes the Gila River watershed, from its 
headwaters in southwestern New Mexico downstream across the State of 
Arizona toward the confluence with the Colorado River, in southwest 
Arizona (Service 2002, p. 65). In 2002, 588 flycatcher territories (51 
percent of the estimated rangewide total) were estimated to occur, 
distributed primarily on the Gila and lower San Pedro Rivers (Sogge et 
al. 2003, pp. 10-11). From the latest rangewide estimate, the number of 
known territories grew to 659 within this Recovery Unit (50 percent of 
the estimated rangewide total) (Durst et al. 2008, p. 12).
    Many breeding sites have small numbers of territories within the 
Gila Recovery Unit, but along sections of the upper and middle Gila 
River, lower San Pedro River, lower Tonto Creek, and the Tonto Creek 
and Salt River confluence within the water conservation space of 
Roosevelt Lake, abundant breeding sites occur over a relatively broad 
geographic range that together comprise many flycatcher territories. 
The Upper Gila, Middle Gila and San Pedro, and Roosevelt Management 
Units had, following the 2007 rangewide estimate (Durst et al. 2008, p. 
12), surpassed numerical recovery goals. Within the Gila Recovery Unit, 
there are concentrations of flycatcher territories in the Cliff-Gila 
Valley, New Mexico, and at Roosevelt Lake, Arizona, that can be some of 
the largest across its range.
    Flycatcher territories in the Gila Recovery Unit occurred primarily 
on lands managed by private and Federal land managers and in a variety 
of habitat types dominated by both native and exotic plants. In 2001, 
private lands hosted 50 percent of the territories (mostly on the San 
Pedro River and Gila River), including one of the largest known 
flycatcher populations, in the Cliff-Gila Valley, New Mexico (Service 
2002, p. 65). Almost the remaining 50 percent of the territories were 
on government-managed lands (Service 2002, p. 65). While in 2001 
(Service 2002, p. 65), 58 percent of territories were in habitats 
dominated by native plants, flycatchers in this Recovery Unit also make 
extensive use of exotic (77 territories) or exotic-dominated (108 
territories) vegetation (primarily tamarisk). Because the current 
distribution of breeding sites in this Recovery Unit is similar, we 
believe these statistics are mostly accurate today. This Recovery Unit 
contains the Verde, Hassayampa and Agua Fria, Roosevelt, San Francisco, 
Upper Gila, Middle Gila and San Pedro, and Santa Cruz Management Units.
    Based upon our occupancy criteria (see above), within the Gila 
Recovery Unit, the Gila (1993), San Pedro (1993), San Francisco (1993), 
Verde (1993), and Salt (1993) Rivers, and Tonto Creek (1993) are 
streams that were known to be occupied at the time of listing (1991-
1994) (Sogge and Durst 2008) where we are proposing critical habitat 
segments. At the time of listing, only specific sites on the Gila River 
within the Middle Gila and San Pedro and Upper Gila Management Units 
were known to be specifically occupied by nesting birds, but based upon 
our criteria and the wide-ranging nature of this neotropical migrant, 
the Gila River within the Hassayampa and Agua Fria Management Unit is 
also considered occupied at the time of listing. Below we identify that 
each listed item described in our Special Management Considerations or 
Protection section (see above) applies to the streams described in each 
Management Unit within the Gila Recovery Unit.

Verde Management Unit, AZ

    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Verde Management Unit (Service 2002, p. 85).
    We identified a large flycatcher nesting population along the Verde 
River within Yavapai, Gila, and Maricopa Counties, Arizona. Flycatchers 
were first detected nesting on the Verde River in 1993; a total of six 
breeding sites are known and are spread out from the Verde Valley near 
the towns of Clarkdale and Camp Verde and downstream near Horseshoe 
Lake (Sogge and Durst 2008). A high of 23 territories were detected 
within this Management Unit in 2005 (Sogge and Durst 2008).
    We are proposing as critical habitat two segments of the Verde 
River. We are proposing an upper 74.0-km (46.0-mi) segment of the Verde 
River that occurs in the Verde Valley in Yavapai County from above 
Tuzigoot National Monument near the Town of Clarkdale, downstream 
through the towns of Cottonwood and Camp Verde to Beasley Flat. We are 
also proposing a 62.7-km (38.9-mi) segment in the middle Verde River 
that extends from the East Verde River confluence down through

[[Page 50573]]

Horseshoe Lake and a short distance along the river below Horseshoe Dam 
to the USGS gauging station and cable crossing. These segments of the 
Verde River are known to be occupied by flycatchers at the time of 
listing, and contain the physical or biological features essential to 
the conservation of the species which may require special management 
considerations or protection, as described above.
    The Verde River was the lone river identified within this 
Management Unit as having substantial recovery value in the Recovery 
Plan (Service 2002, p. 91). These river segments are anticipated to 
provide flycatcher habitat for metapopulation stability, gene 
connectivity through this portion of the flycatcher's range, protection 
against catastrophic population loss, and population growth and 
colonization potential. As a result, these river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.
    We will consider excluding the water conservation space of the 
Verde River within Horseshoe Lake due to the conservation included in 
the Horseshoe and Bartlett Dam HCP and those portions of the Verde 
River that occur on Yavapai Apache Tribal land as result of their 
Management Plan under section 4(b)(2) of the Act (see Exclusions).

Roosevelt Management Unit, AZ

    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Roosevelt Management Unit (Service 2002, p. 85).
    We identified a large flycatcher nesting population surrounding the 
Roosevelt Lake area in Gila and Pinal Counties, Arizona. Flycatchers 
were first detected nesting on Tonto Creek and the Salt River within 
the conservation space of Roosevelt Lake in 1993 (Sogge and Durst 
2008).
    Because of the anticipated water level fluctuations at Roosevelt 
Lake, which inundates many flycatcher territories and limits the number 
of territories that can be sustained over time, this is the only 
Management Unit within the flycatcher's range where the recovery goal 
was smaller than the known number of territories at the time of the 
Recovery Plan completion. As a result, river segments and the lakebed 
together provide habitat that allow flycatcher territories to persist 
over time due to dynamic river and lake flooding events. For example, a 
high of 196 flycatcher territories occurred in 2004 (mostly within the 
conservation space of Roosevelt Lake), but in the following years after 
the lake level was raised, the known number of territories declined to 
75 in 2007 (Sogge and Durst 2008). Since the raising of the water level 
in Roosevelt Lake, flycatchers have expanded their known distribution 
throughout adjacent areas along Tonto Creek, Salt River, and Pinal 
Creek (Sogge and Durst 2008).
    We are proposing as critical habitat segments of Tonto Creek, the 
Salt River, the confluence of these two streams that comprise Roosevelt 
Lake, and Pinal Creek. The proposed lower 49.1-km (30.5-mi) segment of 
Tonto Creek extends from near the Town of Gisela downstream to the 
western high-water-mark side of the conservation space of Roosevelt 
Lake. On the eastern side of Roosevelt Lake, we are proposing a 39.0-km 
(24.2-mi) portion of the Salt River from the confluence with Cherry 
Creek to the high water mark of the conservation space of Roosevelt 
Lake. Joining these Tonto Creek and Salt River segments, we are 
proposing as critical habitat the 29.1-km (18.1-mi) lakebed at 
Roosevelt Lake (comprised of the Tonto Creek and Salt River 
confluence). These three areas were known to be occupied by flycatchers 
at the time of listing, and contain the physical or biological features 
essential to the conservation of the species which may require special 
management considerations or protection, as described above.
    Additionally, we are proposing a separate 5.7-km (3.5-mi) essential 
segment of Pinal Creek that occurs downstream of the water treatment 
plant north of the Town of Globe. This segment was not known to be 
occupied at the time of listing, but it currently supports nesting 
flycatchers and was determined to be essential for flycatcher 
conservation in order to help meet recovery goals in this Management 
Unit.
    The segments of Tonto Creek, the Salt River, and their confluence 
that makes up Roosevelt Lake were identified as having substantial 
recovery value in the Recovery Plan (Service 2002, p. 91). Together, 
these segments, along with the essential Pinal Creek segment, are 
anticipated to provide flycatcher habitat for metapopulation stability, 
gene connectivity through this portion of the flycatcher's range, 
protection against catastrophic population loss, and population growth 
and colonization potential. As a result, these river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.
    The conservation space of Roosevelt Lake, due to the Roosevelt HCP, 
will be considered for exclusion under section 4(b)(2) of the Act (see 
Exclusions).

Middle Gila and San Pedro Management Unit, AZ

    The Recovery Plan describes a goal of 150 flycatcher territories in 
the Middle Gila and San Pedro Management Unit (Service 2002, p. 85).
    We identified a large flycatcher nesting population surrounding the 
Gila and San Pedro River confluence area within Cochise, Pima, Pinal, 
and Gila Counties, Arizona. Flycatchers were first detected nesting in 
this Management Unit in 1993, with abundant breeding sites occurring 
throughout this Management Unit. A high of 195 territories was detected 
in 2005 (Sogge and Durst 2008).
    We are proposing as critical habitat the lowest 127.2-km (79.0-mi) 
segment of the middle and lower San Pedro River across portions of 
Cochise, Pima, and Pinal Counties, Arizona, and a 80.6-km (50.1-mi) 
Gila River segment that extends from near Dripping Springs Wash 
downstream past the San Pedro and Gila River confluence to the 
Ashehurst Hayden Diversion Dam in Gila and Pinal Counties, Arizona. The 
Gila and San Pedro Rivers are known to be occupied by flycatchers at 
the time of listing, and contain the physical or biological features 
essential to the conservation of the species which may require special 
management considerations or protection, as described above.
    The San Pedro and Gila Rivers were the only two rivers identified 
within this Management Unit as having substantial recovery value in the 
Recovery Plan (Service 2002, p. 91). These river segments are 
anticipated to provide flycatcher habitat for metapopulation stability, 
gene connectivity through this portion of the flycatcher's range, 
protection against catastrophic population loss, and population growth 
and colonization potential. As a result, these river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.

Upper Gila Management Unit, AZ and NM

    The Recovery Plan describes a goal of 325 flycatcher territories in 
the Upper Gila Management Unit (Service 2002, p. 85). Flycatcher 
territories are known throughout the Gila River in New Mexico and 
Arizona within this Management Unit.

[[Page 50574]]

    Based upon our methodology, we identified a large flycatcher 
nesting population across a broad area of the upper Gila River 
occurring within Gila, Pinal, Graham, and Greenlee Counties, Arizona, 
and Grant and Hildalgo Counties, New Mexico. Flycatchers were first 
detected nesting in this Management Unit in 1993 (Sogge and Durst 
2008). Flycatcher territories at 22 breeding sites occur throughout 
three separate river segments of the Gila River, with a high of 329 
territories estimated following the 2007 breeding season (Durst et al. 
2008, p. 12). A single breeding site along the most upstream segment in 
the Cliff-Gila Valley in Grant County, New Mexico, has held over 200 
flycatcher territories in a single season (Sogge and Durst 2008).
    We are proposing as proposed critical habitat three segments of the 
Gila River that occur between the Turkey Creek confluence on the Gila 
National Forest, New Mexico, and Coolidge Dam (creating San Carlos 
Lake) on San Carlos Apache Tribal land. The most upstream 49.3-km 
(30.6-mi) Gila River segment extends from Turkey Creek through the 
Cliff-Gila Valley to the upstream entrance of the middle Gila Box 
Canyon on the Gila National Forest. The second 62.2-km (38.7-mi) Gila 
River segment occurs from the downstream end of the Middle Gila Box 
Canyon near the Town of Red Rock and extends downstream across the 
Arizona State line through the Town of Duncan, Arizona (this segment 
spans Grant and Hidalgo Counties, New Mexico, and Greenlee County, 
Arizona). The third 134.5-km (83.5-mi) Gila River segment occurs from 
the upper end of Earven Flat, near the Bonita Creek confluence, above 
the Town of Safford, Arizona, and extends through the Town of Safford 
and San Carlos Apache Land until it ends at Coolidge Dam. The Gila 
River is known to be occupied by flycatchers at the time of listing, 
and contains the physical or biological features essential to the 
conservation of the species which may require special management 
considerations or protection, as described above.
    The Gila River segments were identified in the Recovery Plan as 
areas with substantial recovery value (Service 2002, p. 91). These 
three Gila River segments are anticipated to provide flycatcher habitat 
for metapopulation stability, gene connectivity through this portion of 
the flycatcher's range, protection against catastrophic population 
loss, and population growth and colonization potential. As a result, 
these river segments and associated flycatcher habitat are anticipated 
to support the strategy, rationale, and science of flycatcher 
conservation in order to meet territory and habitat-related recovery 
goals.
    We will consider the Gila River (including the lakebed of San 
Carlos Lake), where it occurs within San Carlos Apache Tribal land in 
Arizona, and the U-Bar Ranch in the Cliff-Gila Valley, New Mexico, for 
exclusion due to Management Plans under section 4(b)(2) of the Act (see 
Exclusions).

Santa Cruz Management Unit, AZ

    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Santa Cruz Management Unit (Service 2002, p. 84).
    There were no large flycatcher nesting populations in the Santa 
Cruz Management Unit to help guide us toward a critical habitat area, 
and no areas were known to be occupied at the time of listing. 
Therefore, to identify the areas that would contribute to meeting 
recovery goals for this Management Unit, we used information based on 
known flycatcher territories and breeding sites, guidance from the 
Recovery Plan, and knowledge about stream habitat to determine critical 
habitat segments that may be essential for flycatcher conservation (see 
below). A single flycatcher territory was detected on Cienega Creek in 
2001 (Sogge and Durst 2008). No flycatcher territories have been 
detected on the Santa Cruz River.
    We are proposing as critical habitat a 7.0-km (4.4-mi) segment of 
Cienega Creek (including part of Las Cienegas National Conservation 
Area) in Pima County, Arizona, and a 26.7-km (16.6-mi) segment of the 
Santa Cruz River (Nogales Waste Water Treatment Plant to Chavez Siding 
Road) in Santa Cruz County, Arizona. These segments were not known to 
be occupied at the time of listing; however, they are essential to 
flycatcher conservation because they may be able to develop and sustain 
flycatcher habitat and territories to help meet recovery goals in this 
Management Unit. As noted earlier in this proposed rule (see Public 
Comments), we are specifically seeking information about these proposed 
Santa Cruz and Cienega Creek segments, as well as information about 
other flycatcher habitat, management, and detections in the Santa Cruz 
Management Unit.
    The Santa Cruz River and Cienega Creek segments were identified in 
the Recovery Plan as areas with substantial recovery value (Service 
2002, p. 91). These two segments are anticipated to provide flycatcher 
habitat for metapopulation stability, gene connectivity through this 
portion of the flycatcher's range, protection against catastrophic 
population loss, and population growth and colonization potential. As a 
result, these river segments and associated flycatcher habitat are 
anticipated to support the strategy, rationale, and science of 
flycatcher conservation in order to meet territory and habitat-related 
recovery goals.

San Francisco Management Unit, AZ and NM

    The Recovery Plan describes a goal of 25 flycatcher territories in 
the San Francisco Management Unit (Service 2002, p. 84). Small numbers 
of flycatcher territories are known to occur along the San Francisco 
River in this Management Unit in both Arizona and New Mexico.
    There were no known large flycatcher nesting populations in the San 
Francisco Management Unit to help guide us toward a critical habitat 
area. Therefore, to identify the areas that would contribute to meeting 
recovery goals for this Management Unit, we used information based on 
known flycatcher territories and breeding sites, guidance from the 
Recovery Plan, and knowledge about stream habitat to determine critical 
habitat segments for flycatcher conservation (see below). Four 
flycatcher breeding sites have been detected on these river segments, 
with the first territories found in 1993 (Sogge and Durst 2008). The 
number of territories detected has fluctuated annually between one and 
seven from 1993 to 2007 (Sogge and Durst 2008).
    We are proposing as critical habitat three segments of the San 
Francisco River in Arizona and New Mexico. We are proposing a 42.6-km 
(26.5-mi) segment on the San Francisco River that extends from near the 
Town of Alpine, Arizona, to Centerfire Creek in Catron County, New 
Mexico; a second 36.4-km (22.6-mi) segment that extends from the Deep 
Creek confluence to San Francisco Hot Springs, in Catron County, New 
Mexico; and a third 36.9-km (22.9-mi) segment from the Arizona and New 
Mexico border to the western boundary of the Apache-Sitgreaves National 
Forest, in Apache County, Arizona. The San Francisco River is known to 
be occupied by flycatchers at the time of listing, and contains the 
physical or biological features essential for the conservation of the 
species which may require special management considerations or 
protection, as described above.
    These three San Francisco River segments were identified in the 
Recovery Plan as having substantial recovery value (Service 2002, pp. 
90-91). These three San Francisco River

[[Page 50575]]

segments are anticipated to provide flycatcher habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, these 
river segments and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.

Hassayampa and Agua Fria Management Unit, AZ

    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Hassayampa and Agua Fria Management Unit (Service 2002, p. 84).
    There were no large flycatcher nesting populations in the 
Hassayampa and Agua Fria Management Unit to help guide us toward a 
critical habitat area. Therefore, to identify the areas that would 
contribute to meeting recovery goals for this Management Unit, we used 
information based on known flycatcher territories and breeding sites, 
guidance from the Recovery Plan, and knowledge about stream habitat to 
determine critical habitat segments that may be essential for 
flycatcher conservation (see below). A single breeding site has been 
detected on the Gila River and Hassayampa River in this Management 
Unit, with the first territories found in 1997 (Sogge and Durst 2008). 
The number of territories detected has ranged from one and three from 
1997 to 2007 (Sogge and Durst 2008).
    We are proposing as critical habitat an 8.7-km (5.4-mi) segment of 
the Gila River, downstream from its confluence with the Salt River from 
107th Avenue to Bullard Avenue in Maricopa County, Arizona. The Gila 
River is known to be occupied by flycatchers at the time of listing, 
and contains the physical or biological features essential for the 
conservation of the species which may require special management 
considerations or protection, as described above.
    We are also proposing as critical habitat a 7.4-km (4.6 mi) segment 
of the Hassayampa River that occurs south of the Town of Wickenburg and 
Highway 60 Bridge in Maricopa County, Arizona. This segment was not 
known to be occupied at the time of listing; however, it is essential 
for flycatcher conservation because it will help meet recovery goals in 
this Management Unit.
    These segments of the Gila River and Hassayampa Rivers were both 
identified in the Recovery Plan as having substantial recovery value 
(Service 2002, p. 91). These two river segments are anticipated to 
provide flycatcher habitat for metapopulation stability, gene 
connectivity through this portion of the flycatcher's range, protection 
against catastrophic population loss, and population growth and 
colonization potential. As a result, these river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.
    The Gila River segment within the Tres Rios Safe Harbor Agreement 
Area will be considered for exclusion under section 4(b)(2) of the Act 
(see Exclusions).

Rio Grande Recovery Unit

    This Recovery Unit primarily includes the Rio Grande watershed from 
its headwaters in southern Colorado downstream to the Pecos River 
confluence in Texas. Other areas and drainages that occur within this 
Recovery Unit include the Rio Grande in Texas and Pecos watershed in 
New Mexico and Texas. No recovery goals were established for Management 
Units in those areas, so no critical habitat is being proposed in those 
areas.
    There have been large increases in the number of estimated and 
known territories within the Rio Grande Recovery Unit, primarily due to 
increasing population numbers within the Middle Rio Grande Management 
Unit. In 2002, a total of 197 territories (17 percent of the rangewide 
total) were estimated to occur within the Recovery Unit, primarily 
occurring along the mainstem Rio Grande (Sogge et al. 2003). At the end 
of the 2007 breeding season, the Recovery Unit had increased to an 
estimated 230 territories (17 percent of the rangewide total), 
primarily due to territory increases in the Middle Rio Grande (Durst et 
al. 2008, p.13). In the subsequent years, the number of known 
territories has continued to increase within the Middle Rio Grande 
Management Unit with approximately 350 territories detected in 2009, 
with most territories detected within the San Marcial reach near 
Elephant Butte Reservoir (Moore and Ahlers 2010, p. 1).
    Both the San Luis Valley Management Unit in southern Colorado and 
Middle Rio Grande Management Unit in New Mexico have surpassed their 
numerical territory goals. A total of 50 territories are needed in the 
San Luis Valley Management Unit and 56 territories were estimated to 
occur in 2007 (Durst et al. 2008, p. 13). In the Middle Rio Grande 
Management Unit, the numerical goal of 100 territories has been 
surpassed with about 350 territories detected in 2009 (Moore and Ahlers 
2010, p.1).
    Most sites are in habitats dominated by native plants, while 
habitat dominated by exotic plants include primarily tamarisk or 
Russian olive (Service 2002, p. 65). In 2001, 43 of the 56 nests (77 
percent) that were described in the middle and lower Rio Grande in New 
Mexico, used tamarisk as the nest substrate (Service 2002, p. 65). In 
2001, government-managed lands accounted for 63 percent of the 
territories in this unit; Tribal lands supported an additional 23 
percent (Service 2002). While the number of territories has increased, 
the known distribution of sites is similar. As a result, we expect a 
larger proportion of territories to occur on government-managed lands 
in the Middle Rio Grande Management Unit.
    This Recovery Unit contains the San Luis Valley, Upper Rio Grande, 
Middle Rio Grande, and Lower Rio Grande Management Units.
    Based upon our occupancy criteria (see above), within the Rio 
Grande Recovery Unit, the Rio Grande (1993), Rio Grande del Rancho 
(1993), and Coyote Creek (1993) are streams that were known to be 
occupied at the time of listing (1991-1994) (Sogge and Durst 2008) 
where we are proposing critical habitat segments. These streams have 
the physical or biological features of critical habitat that may 
require special management considerations or protection.
    At the time of listing, only specific sites on the Rio Grande 
within the Upper, Middle, and Lower Rio Grande Management Units were 
known to be specifically occupied by nesting birds, but based upon our 
criteria and the wide-ranging nature of this neotropical migrant, the 
Rio Grande within the San Luis Valley Management Unit is also 
considered occupied at the time of listing. Below we identify that each 
listed item described in our Special Management Considerations or 
Protection section (see above) applies to the streams described in each 
Management Unit within the Rio Grande Recovery Unit.

San Luis Valley Management Unit, CO

    The Recovery Plan describes a goal of 50 flycatcher territories in 
the San Luis Valley Management Unit (Service 2002, p. 85).
    We identified a large flycatcher nesting population in the San Luis 
Valley in Costilla, Conejos, Alamosa, and Rio Grande Counties, 
Colorado. Flycatchers were first detected nesting

[[Page 50576]]

in this Management Unit in 1997, and a high of 71 territories were 
detected along the Rio Grande and Conejos River in 2003 (Sogge and 
Durst 2008).
    We are proposing as critical habitat a segment of the Rio Grande 
and a segment of the Conejos River within the San Luis Valley. The 
159.4-km (99.0-mi) upper Rio Grande segment extends from the Hanna Lane 
County Road 17 Bridge downstream through the Alamosa National Wildlife 
Refuge to the County Road G Bridge. The Rio Grande is known to be 
occupied by flycatchers at the time of listing, and contains the 
physical or biological features essential for the conservation of the 
species which may require special management considerations or 
protection, as described above.
    We are also proposing as critical habitat a 69.8-km (43.4-mi) 
segment of the Conejos River from near where the D5 Road crosses the 
Conejos River (just downstream from Fox Creek) and extends down to its 
confluence with the Rio Grande. This segment was not known to be 
occupied at the time of listing; however, it is essential for 
flycatcher conservation because it will help meet recovery goals in 
this Management Unit.
    The Rio Grande and the Conejos River segments were identified 
within this Management Unit as having substantial recovery value in the 
Recovery Plan (Service 2002, p. 92). These two river segments are 
anticipated to provide flycatcher habitat for metapopulation stability, 
gene connectivity through this portion of the flycatcher's range, 
protection against catastrophic population loss, and population growth 
and colonization potential. As a result, these river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.
    Both the Rio Grande and Conejos River occur within the conservation 
planning area established by the San Luis Valley Partnership and within 
their developing HCP; as a result, we will consider the Conejos River 
and Rio Grande within this conservation and planning area for exclusion 
under section 4(b)(2) of the Act (see Exclusions).

Upper Rio Grande Management Unit, NM

    The Recovery Plan describes a goal of 75 flycatcher territories in 
the Upper Rio Grande Management Unit (Service 2002, p. 85).
    We identified a large flycatcher nesting population on the upper 
Rio Grande in Taos, Santa Fe, and Mora Counties, New Mexico. 
Flycatchers were first detected nesting in this Management Unit in 
1993, and a high of 39 territories were detected in 2000 along the Rio 
Grande, Rio Grande Del Rancho, and Coyote Creek (Sogge and Durst 2008). 
Flycatcher territories were recently detected on the Rio Fernando, 
which occurs within our large population area.
    We are proposing as critical habitat a 75.1-km (46.7-mi) segment of 
the Rio Grande that extends from the Taos Junction Bridge (State Route 
520) downstream to the Otowi Bridge (State Route 502). We are proposing 
as critical habitat an 11.9-km (7.4-mi) segment of the Rio Grande del 
Rancho from Sarco Canyon downstream to the Arroyo Miranda confluence. 
We are also proposing as critical habitat a 10.7-km (6.6-mi) segment of 
Coyote Creek from above Coyote Creek State Park downstream to the 
second bridge on State Route 518, upstream from Los Cocas. These 
segments are known to be occupied by flycatchers at the time of 
listing, and contain the physical or biological features essential for 
the conservation of the species which may require special management 
considerations or protection, as described above.
    We are also proposing as critical habitat a 0.4-km (0.2-mi) segment 
of the Rio Fernando that is about 3.2 km (2.0 mi) upstream from the Rio 
Lucero confluence. This segment was not known to be occupied at the 
time of listing; however, it is essential for flycatcher conservation 
because it will help meet recovery goals in this Management Unit.
    Rio Grande, Rio Grande del Rancho, and Coyote Creek were identified 
within this Management Unit as having substantial recovery value in the 
Recovery Plan (Service 2002, p. 92). These three segments, along with 
the essential Rio Fernando segment, are anticipated to provide 
flycatcher habitat for metapopulation stability, gene connectivity 
through this portion of the flycatcher's range, protection against 
catastrophic population loss, and population growth and colonization 
potential. As a result, these river segments and associated flycatcher 
habitat are anticipated to support the strategy, rationale, and science 
of flycatcher conservation in order to meet territory and habitat-
related recovery goals.
    Due to the our partnership with the Santa Clara, San Juan, and San 
Ildefonso Pueblos and their conservation and planning efforts on the 
Rio Grande, we will consider these Pueblos for exclusion under section 
4(b)(2) of the Act (see Exclusions).

Middle Rio Grande Management Unit, NM

    The Recovery Plan describes a goal of 100 flycatcher territories in 
the Middle Rio Grande Management Unit (Service 2002, p. 85).
    We identified a large flycatcher nesting population on the middle 
Rio Grande in Valencia, Soccorro, and Sierra Counties, New Mexico. 
Flycatcher territories were first detected in this Management Unit in 
1993. In 2007, a high of 230 territories were detected (Sogge and Durst 
2008), and since then the population has grown to about 350 territories 
(Moore and Ahlers 2010, p. 1).
    We are proposing as critical habitat a 211.8-km (131.6 mi) segment 
of the Rio Grande that extends from below the Bernalillo and Valencia 
County line downstream past Bosque del Apache and Sevilleta National 
Wildlife Refuges and through Elephant Butte Reservoir in Valencia, 
Soccorro, and Sierra Counties, New Mexico. The Rio Grande is known to 
be occupied by flycatchers at the time of listing, and contains the 
physical or biological features essential for the conservation of the 
species which may require special management considerations or 
protection, as described above.
    This Rio Grande segment was identified as having substantial 
recovery value in the Recovery Plan (Service 2002, p. 92). This segment 
of the Rio Grande is anticipated to provide flycatcher habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, this 
river segment and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals. The 
population of flycatchers in this segment is currently the largest 
population of flycatchers in their range, with a total of 221 pairs and 
291 nests documented within the Elephant Butte Reservoir conservation 
pool, according to a 2009 study (Moore and Ahlers 2010, p. 43).
    Based on an initial evaluation of potential impacts on water 
operations of the Elephant Butte Dam and Reservoir, we will consider 
excluding the portion of this segment that occurs within the reservoir 
pool of Elephant Butte Reservoir from the final designation of 
flycatcher critical habitat under section 4(b)(2) of the Act (see 
Exclusions).

[[Page 50577]]

Lower Rio Grande Management Unit, NM

    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Lower Rio Grande Management Unit (Service 2002, p. 84).
    There were no large flycatcher nesting populations in the lower Rio 
Grande Management Unit to help guide us toward a critical habitat area. 
Therefore, to identify the areas that would contribute to meeting 
recovery goals for this Management Unit, we used information based on 
known flycatcher territories and breeding sites, guidance from the 
Recovery Plan, and knowledge about stream habitat to determine critical 
habitat segments that may be essential for flycatcher conservation (see 
below). Three breeding sites have been detected along the Rio Grande, 
with the first territories found in 1993 (Sogge and Durst 2008). The 
number of flycatcher territories detected annually has fluctuated 
between zero and eight from 1993 to 2007 (Sogge and Durst 2008).
    We are proposing as critical habitat a 74.2-km (46.1-mi) segment of 
the Rio Grande in Sierra and Dona Ana Counties, New Mexico, from 
Caballo Dam to Leasburg Dam. The Rio Grande is known to be occupied by 
flycatchers at the time of listing, and contains the physical or 
biological features essential for the conservation of the species which 
may require special management considerations or protection, as 
described above.
    This Rio Grande segment was identified as having substantial 
recovery value in the Recovery Plan (Service 2002, p. 92). This Rio 
Grande segment is anticipated to provide flycatcher habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, this 
river segment and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    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. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, Tribal, local, or private lands that are not Federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying 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 in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the flycatcher. As discussed 
above, the role of critical habitat is to support life-history needs of 
the species and provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities

[[Page 50578]]

involving a Federal action that may destroy or adversely modify such 
habitat, or that may be affected by such designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the flycatcher. These activities include, but are not 
limited to:
    (1) Actions that would remove, thin, or destroy riparian flycatcher 
habitat, without implementation of an effective riparian restoration 
plan resulting in the development of riparian vegetation of equal or 
better flycatcher quality in abundance and extent. Such activities 
could include, but are not limited to removing, thinning, or destroying 
riparian vegetation by mechanical, chemical (herbicides or burning), or 
biological (grazing, biocontrol agents) means. These activities could 
reduce the amount or extent of riparian habitat needed by flycatchers 
for sheltering, feeding, breeding, and migrating.
    (2) Actions that would appreciably diminish habitat value or 
quality through direct or indirect effects. Such activities could 
include, but are not limited to, degradation of watershed and soil 
characteristics; diminishing river surface and subsurface flow; 
negatively altering river flow regimes; introduction of exotic plants, 
animals, or insects; or habitat fragmentation from recreation 
activities. These activities could reduce or fragment the amount or 
extent of riparian habitat needed by flycatchers for sheltering, 
feeding, breeding, and migrating.
    (3) Actions that would negatively alter the surface or subsurface 
river flow. Such activities could include, but are not limited to, 
water diversion or impoundment, groundwater pumping, dam construction 
and operation, or any other activity which negatively changes the 
frequency, magnitude, duration, timing, or abundance of surface flow 
(and also subsurface groundwater elevation). These activities could 
permanently eliminate available riparian habitat and food availability 
or degrade the general suitability, quality, structure, abundance, 
longevity, and vigor of riparian vegetation and microhabitat components 
necessary for nesting, migrating, food, cover, and shelter.
    (4) Actions that permanently destroy or alter flycatcher habitat. 
Such activities could include, but are not limited to, discharge of 
fill material, draining, ditching, tiling, pond construction, and 
stream channelization (due to roads, construction of bridges, 
impoundments, discharge pipes, stormwater detention basins, dikes, 
levees, and others). These activities could permanently eliminate 
available riparian habitat and food availability or degrade the general 
suitability, quality, structure, abundance, longevity, and vigor of 
riparian vegetation and microhabitat components necessary for nesting, 
migrating, food, cover, and shelter.
    (5) Actions that result in alteration of flycatcher habitat from 
improper livestock or ungulate management. Such activities could 
include, but are not limited to, unrestricted ungulate access and use 
of riparian vegetation; excessive ungulate use of riparian vegetation 
during the non-growing season (i.e., leaf drop to bud break); overuse 
of riparian habitat and upland vegetation due to insufficient 
herbaceous vegetation available to ungulates; and improper herding, 
water development, or other livestock management actions. These 
activities can reduce the volume and composition of riparian 
vegetation, prevent regeneration of riparian plant species, physically 
disturb nests, alter floodplain dynamics, facilitate brood parasitism 
by brown-headed cowbirds, alter watershed and soil characteristics, 
alter stream morphology, and facilitate the growth of flammable exotic 
plant species.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
requires each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an INRMP. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate 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 integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. We analyzed INRMPs 
developed by military installations located within the range of the 
proposed critical habitat designation for the flycatcher to determine 
if they are exempt under section 4(a)(3) of the Act. The following 
areas in southern California (Table 3) are Department of Defense lands 
with completed, Service-approved INRMPs within the proposed critical 
habitat designation.

     Table 3--Areas Exempted From Critical Habitat Under Section 4(b)(3) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                   Areas meeting the
           Management unit                 Specific area        definition of critical     Areas exempted in km
                                                                  habitat in km (mi)               (mi)
----------------------------------------------------------------------------------------------------------------
Santa Ynez..........................  Vandenberg AFB INRMP...  14.7 km (9.1 mi)          14.7 km (9.1 mi).
San Diego...........................  Camp Pendleton INRMP...  76.1 km (47.3 mi)         76.1 km (47.3 mi).
San Diego...........................  Camp Pendleton INRMP/    7.5 km (4.7 mi)           7.5 km (4.7 mi).
                                       Fallbrook Naval Base
                                       INRMP shared boundary.
San Diego...........................  Fallbrook Naval Base     3.2 km (2.0 mi)           3.2 km (2.0 mi).
                                       INRMP.
----------------------------------------------------------------------------------------------------------------


[[Page 50579]]

Approved INRMPs

Vandenberg Air Force Base (VAFB)--Santa Ynez Management Unit, CA
    Vandenberg Air Force Base has an approved INRMP. The U.S. Air Force 
is committed to working closely with the Service and California 
Department of Fish and Game to continually refine the existing INRMP as 
part of the Sikes Act's INRMP review process. Based on our review of 
the INRMP for this military installation, and in accordance with 
section 4(a)(3)(B)(i) of the Act, we have determined that the portion 
of the Santa Ynez River within this installation, identified as meeting 
the definition of critical habitat, is subject to the INRMP, and that 
conservation efforts identified in this INRMP will provide a benefit to 
the flycatcher. Therefore, lands within this installation are exempt 
from critical habitat designation under section 4(a)(3)(B) of the Act. 
We are not including approximately 14.7 km (9.1 mi) of riparian habitat 
on VAFB in this proposed revised critical habitat designation because 
of this exemption.
    VAFB completed an INRMP in 2011, which includes benefits for 
flycatchers through: (1) Avoidance of flycatchers and their habitat, 
whenever possible, in project planning; (2) scheduling of activities 
that may affect flycatchers outside of the peak breeding period; (3) 
measures for protection of riparian zones (see Wetlands and Riparian 
Habitats Management Plan Section in INRMP); (4) removal of exotic plant 
species; and (5) implementation of brown-headed cowbird management. 
Further, VAFB's environmental staff reviews projects and enforces 
existing regulations and orders that, through their implementation, 
avoid and minimize impacts to natural resources, including flycatchers 
and their habitat. In addition, VAFB's INRMP provides protection to 
riparian habitats for flycatchers by excluding cattle from wetlands and 
riparian areas through the installation and maintenance of fencing. 
VAFB's INRMP specifies periodic monitoring of the distribution and 
abundance of flycatcher populations on the base.
    Habitat features essential to the conservation of the flycatcher 
exist on VAFB; however, designating critical habitat on this military 
installation may impact its mission of launching and tracking of 
satellites and testing and evaluating missile systems, and therefore 
affect the nation's military readiness. Activities occurring on VAFB 
are currently being conducted in a manner that minimizes impacts to 
flycatchers. This military installation has an approved INRMP that 
provides a benefit to the flycatcher, and VAFB has committed to work 
closely with the Service and the State wildlife agency to continually 
refine their existing INRMP as part of the Sikes Act's INRMP review 
process.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the 2011 INRMP for VAFB provide a benefit to the 
flycatcher and its habitat. Therefore, lands subject to the INRMP for 
VAFB, which includes the lands leased from the Department of Defense by 
other parties, are exempt from critical habitat designation under 
section 4(a)(3) of the Act, and we are not including approximately 14.7 
km (9.1 mi) of the Santa Ynez River in this proposed revised critical 
habitat designation because of this exemption.
Marine Corps Base Camp Pendleton (MCB Camp Pendleton)--San Diego 
Management Unit, CA
    The primary mission of Marine Corps Base Camp Pendleton (MCB Camp 
Pendleton) is military training. It is the Marine Corps' premier 
amphibious training installation and its only west coast amphibious 
assault training center. The installation has been conducting air, sea, 
and ground assault training since World War II. MCB Camp Pendleton 
occupies over 50,586 ha (125,000 ac) of coastal southern California in 
the northwest corner of San Diego County. Aside from nearly 4,047 ha 
(10,000 ac) that is developed, most of the installation is largely 
undeveloped land that is used for training. MCB Camp Pendleton is 
situated between two major metropolitan areas: Los Angeles, 132 km (82 
mi) to the north; and San Diego, 61 km (38 mi) to the south. Nearby 
urban areas include the City of Oceanside to the south, the 
unincorporated community of Fallbrook to the east, and the City of San 
Clemente to the northwest. Aside from a portion of the MCB Camp 
Pendleton's border that is shared with the San Mateo Canyon Wilderness 
Area on the Cleveland National Forest and the Naval Weapons Station 
Seal Beach--Detachment Fallbrook (Fallbrook Naval Weapons Station), 
surrounding land use is urban development, rural residential 
development, and agricultural farming and ranching. In addition to 
military training and associated activities and infrastructure to 
support training, portions of MCB Camp Pendleton are leased to private 
and public entities and agencies. The largest single leaseholder on the 
installation is California State Parks, which includes a 50-year real 
estate lease granted on September 1, 1971, for 809 ha (2,000 ac) that 
encompasses San Onofre State Beach. Requirements to the lessees are to 
manage natural resources on leased lands in support of objectives and 
consistent with the philosophies of MCB Camp Pendleton's INRMP (USMC 
2007, pp. 2-29).
    The MCB Camp Pendleton INRMP was prepared to assist installation 
staff and users in their efforts to rehabilitate and conserve natural 
resources while maintaining consistency with the use of MCB Camp 
Pendleton to train Marines, and sets the agenda for managing natural 
resources on MCB Camp Pendleton (USMC 2007, p. ES-1). The INRMP also 
provides ecosystem-based management to preserve, improve, and enhance 
ecosystem integrity on the installation (USMC 2007, pp. 1-13). MCB Camp 
Pendleton completed its INRMP in 2001, followed by a revised and 
updated version in 2007 (USMC 2007), to address conservation and 
management recommendations within the scope of the installation's 
military mission, including conservation measures for flycatchers (USMC 
2007, Appendix F, Section F.1, pp. F1-F5). Additionally, Marine Corps 
Air Station Camp Pendleton (MCAS Camp Pendleton) is fully encompassed 
within MCB Camp Pendleton and recognizes itself as a separate 
installation with its own INRMP that also provides a benefit to the 
flycatcher and its habitat. MCAS Camp Pendleton and its INRMP is 
assumed part of this discussion within the remainder of this exemption 
discussion for flycatcher due to its overlapping and close association 
with MCB Camp Pendleton and its INRMP, and both reference and inclusion 
of conservation described in MCB Camp Pendleton's riparian biological 
opinion (1-6-95-F-02; see USMC 2006, pp. 2-4 and discussion below).
    The MCB Camp Pendleton INRMP incorporates measures outlined in a 
riparian biological opinion (Biological Opinion for Programmatic 
Activities and Conservation Plans in Riparian, Estuarine, and Beach 
Ecosystems on Marine Corps Base, Camp Pendleton (also known as 
``Riparian BO''; (1-6-95-F-02)), which includes addressing the 
installation's Riparian Ecosystem Conservation Plan (USMC 2007, 
Appendix C). The Riparian Ecosystem Conservation Plan was designed to 
maintain and enhance the biological diversity of the riparian ecosystem 
on MCB Camp Pendleton, including habitat areas used by flycatchers. The 
conceptual approach behind this conservation plan is to sustain and

[[Page 50580]]

restore riparian ecosystem dynamics so that natural plant and animal 
communities on MCB Camp Pendleton are sufficiently resilient to coexist 
with current and future military training activities (Service 1995, 
Appendix 1, p. 44). Under the reasonable and prudent measures of the 
Riparian BO, implementation of the Riparian Ecosystem Conservation Plan 
by the Marine Corps is nondiscretionary (Service 1995, p. 31; USMC 
2007, Appendix L; USMC 2006, Appendix E, pp. 63-64). Areas or habitat 
containing features essential to the conservation of flycatchers 
addressed by the conservation plan, the Riparian BO, or MCB Camp 
Pendleton's INRMP include the Santa Margarita River and portions of the 
following creeks: Cristianitos, San Mateo, San Onofre, Los Flores, Las 
Pulgas, Fallbrook, Pilgrim, and DeLuz (70 FR 60920; October 19, 2005).
    As described in Appendix F of the MCB Camp Pendleton INRMP (USMC 
2007, pp. F-58--F-67), the following management practices and 
conservation measures provide an indirect or direct benefit for the 
flycatcher:
    (1) Annual monitoring of population levels and distributions of the 
flycatcher;
    (2) Incorporating survey data into the GIS species distribution 
database to update the Environmental Operations Maps and utilize in 
conservation awareness and education programs;
    (3) Exotic vegetation control including Arundo donax and Tamarix 
spp. removal and control;
    (4) Exotic animal control (annual cowbird control activities);
    (5) Programmatic instructions that limit impacts to flycatcher and 
its habitat; and
    (6) Monitoring groundwater levels and basin withdrawals managed to 
avoid degradation and loss of habitat quality.
    These measures are established or ongoing aspects of existing 
programs, Base directives (such as the Riparian Ecosystem Conservation 
Plan), or measures that are being implemented as a result of previous 
consultations. MCB Camp Pendleton implements installation directives to 
avoid and minimize adverse effects to the flycatcher, such as:
    (1) Assuring that aircraft operations shall not be conducted lower 
than an altitude of 300 ft (91 m) over occupied riparian areas, to the 
maximum extent practical;
    (2) Limiting vehicle operations to existing roads in riparian 
areas;
    (3) Requiring helicopters to operate in excess of 200 ft (61 m) 
above ground level over riparian areas except during take-off or 
landing, from March 15 to August 31;
    (4) Restricting ground troops movement in riparian areas to 
existing crossings, trails, and roads; and
    (5) Prohibiting bivouacking in riparian areas.
    Current environmental regulations and restrictions apply to all 
endangered and threatened species on the installation (including 
flycatcher) and are provided to all users of ranges and training areas 
to guide activities and protect the species and its habitat. First, 
specific conservation measures are applied to flycatcher and its 
habitat (as outlined above). Second, MCB Camp Pendleton's environmental 
security staff reviews projects and enforces existing regulations and 
orders that, through their implementation, avoid and minimize impacts 
to natural resources, including the flycatcher and its habitat. Third, 
MCB Camp Pendleton provides training to personnel on environmental 
awareness for sensitive resources on the base, including the flycatcher 
and its habitat. As a result of these regulations and restrictions, 
activities occurring on MCB Camp Pendleton are currently conducted in a 
manner that minimizes impacts to flycatcher habitat.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the 2007 INRMP for MCB Camp Pendleton (and MCAS Camp 
Pendleton INRMP as outlined above) will provide a benefit to the 
flycatcher and riparian habitat on MCB Camp Pendleton. Therefore, lands 
within this installation are exempt from critical habitat designation 
under section 4(a)(3) of the Act. We are not including approximately 
76.1 km (47.3 mi) of habitat on MCB Camp Pendleton and an additional 
7.5 km (4.7 mi) area shared with the adjacent Naval Weapons Station 
Seal Beach--Detachment Fallbrook (Fallbrook Naval Weapons Station) in 
this proposed revised critical habitat designation because of this 
exemption.
Naval Weapons Station Seal Beach--Detachment Fallbrook (Fallbrook Naval 
Weapons Station)--San Diego Management Unit, CA
    Fallbrook Naval Weapons is the primary west coast supply point of 
ordnance for the U.S. Marine Corps and the large deck amphibious 
assault ships of the Pacific Fleet. Fallbrook Naval Weapons Station 
also has the only west coast maintenance facility for air-launched 
missiles for the Pacific Fleet. The installation encompasses 
approximately 3,582 ha (8,852 ac) and is located within the southern 
foothills of the Santa Ana Mountains of northern San Diego County, 
adjacent to the unincorporated community of Fallbrook, California. It 
is bounded to the north, west, and much of the south by MCB Camp 
Pendleton, with the Santa Margarita River forming the common border on 
the north between the two properties. Other than training lands on MCB 
Camp Pendleton, surrounding land use includes semi-rural agricultural 
lands that include plant nurseries, avocado and citrus groves, 
vineyards, and limited urban development.
    In the previous final critical habitat designation for flycatcher, 
we exempted Fallbrook Naval Weapons Station from the designation under 
section 4(a)(3)(B) of the Act because it was subject to an INRMP 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a) that we 
determined to provide a benefit to the flycatcher (70 FR 60927; October 
19, 2005). The INRMP was prepared to assist installation staff and 
users in their efforts to support mission operations and accommodate 
increased military mission requirements for national security and 
emergency homeland security, while meeting all environmental compliance 
responsibilities. The INRMP also provides ecosystem-based management to 
preserve, protect, and enhance natural resources on the installation, 
and provides the organizational support and communication links 
necessary for effective planning, implementation, and administration of 
the installation's natural resources. The Fallbrook Naval Weapons 
Station completed its INRMP in 2006 (which was updated from an INRMP 
developed by the Naval Ordnance Center Pacific Division in 1996) to 
address conservation and management of its natural resources, including 
conservation measures for the flycatcher (Navy 2006, Chapter 3, pp. 
110-112). Areas or habitat containing features essential to the 
conservation of flycatchers within the boundaries of Fallbrook Naval 
Weapons Station occur along portions of Pilgrim Creek and the Santa 
Margarita River.
    The flycatcher primarily receives protection from activities at 
Fallbrook Naval Weapons Station because no training occurs on the 
installation. The INRMP's management and conservation measures for the 
flycatcher consist of avoidance and minimization measures, applied to 
infrastructure development and maintenance to protect the flycatcher, 
that are part of the National Environmental Policy Act (42 U.S.C. 4321 
et seq.) approval process (Navy 2006, Chapter 3, pp. 110-112). The

[[Page 50581]]

flycatcher also receives indirect protection through management and 
conservation measures for the least Bell's vireo such as: (1) 
Protection of flycatcher habitat through protection of a subset of 
least Bell's vireo priority management areas; (2) fencing that protects 
priority areas from cattle grazing; (3) a Fire Management Plan that 
provides a higher priority protection for riparian habitat, due to the 
limited amount of riparian habitat on Fallbrook Naval Weapons Station, 
such as core areas of least Bell's vireo and flycatcher habitat; (4) 
consideration of prescribed burns and livestock grazing as tools for 
the establishment of a buffer area between riparian habitat and 
shrublands; (5) timing and location protections associated with 
prescribed burns; (6) assessment and mapping of riparian habitat to 
determine suitability for least Bell's vireo occupation; and (7) 
implementation of nonnative vegetation control measures, including 
removal of Arundo donax (giant reed) (Navy 2006, pp. 3-118).
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the 2006 INRMP for Fallbrook Naval Weapons Station 
provide a benefit to the flycatcher and riparian habitat on the 
installation. Therefore, lands subject to the INRMP for the Fallbrook 
Naval Weapons Station are exempt from critical habitat designation 
under section 4(a)(3) of the Act. We are not including approximately 
3.2 km (2.0 mi) of habitat on Pilgrim Creek and portions of the Santa 
Margarita River that lie within the boundaries of the Fallbrook Naval 
Weapons Station in this proposed revised critical habitat designation 
because of this exemption.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise his discretion to exclude the area only if such exclusion 
would not result in the extinction of the species.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
critical habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan that provides 
equal to or more conservation than a critical habitat designation would 
provide.
    In the case of the flycatcher, the benefits of critical habitat 
include public awareness of flycatcher presence and the importance of 
habitat protection, and in cases where a Federal nexus exists, 
increased habitat protection for the flycatcher due to the protection 
from adverse modification or destruction of critical habitat. In 
practice, a Federal nexus exists primarily on Federal lands or for 
projects undertaken by Federal agencies. Since the flycatcher was 
listed in 1995, we have had some projects on privately owned lands that 
had a Federal nexus to trigger consultation under section 7 of the Act. 
On Federal lands, we have been consulting with Federal agencies on 
their effects to the flycatcher since the subspecies was listed. These 
consultations have, in some instances, resulted in comprehensive 
conservation planning for specific areas across its range (i.e., 
Sprague Ranch in Kern Management Unit). These plans can provide 
sufficient flycatcher habitat protection for recovery of the species.
    When we evaluate the existence of a conservation plan when 
considering the benefits of exclusion, we consider a variety of 
factors, including but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical or 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction. If exclusion of an area from critical habitat will result 
in extinction, we will not exclude it from the designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments we receive, we will evaluate 
whether certain lands in the proposed critical habitat designation 
(Table 4) are appropriate for exclusion from the final designation 
under section 4(b)(2) of the Act. The mapped location of these lands we 
are considering for exclusion can be viewed in the supplementary 
documents associated with this proposed rule found at http://www.regulations.gov. If the analysis indicates that the benefits of 
excluding lands from the final designation outweigh the benefits of 
designating those lands as critical habitat, then the Secretary may 
exercise his discretion to exclude the lands from the final 
designation.

[[Page 50582]]



     Table 4--Plan Type, Stream Segments, and Approximate Stream Length Being Considered for Exclusion From
                 Flycatcher Critical Habitat Under Section 4(b)(2) of the Act by Management Unit
----------------------------------------------------------------------------------------------------------------
                                                       Streams segments
           Basis for possible exclusion                 considered for      Approximate stream length considered
                                                          exclusion               for exclusion in km (mi)
----------------------------------------------------------------------------------------------------------------
                                            Santa Ana Management Unit
----------------------------------------------------------------------------------------------------------------
Western Riverside County Multiple Species HCP....  Santa Ana River........  34.1 km (21.2 mi).
                                                   San Timoteo Creek......  21.4 km (13.3 mi).
                                                   Bautista Creek.........  22.6 km (14.0 mi).
                                                   Temecula Creek (see San
                                                    Diego Management Unit).
Ramona Band of Cahuilla..........................  Bautista Creek.........  0.44 km (0.27 mi).
----------------------------------------------------------------------------------------------------------------
                                            San Diego Management Unit
----------------------------------------------------------------------------------------------------------------
San Diego County Multiple Species HCP............  San Dieguito River.....  9.2 km (5.7 mi).
                                                   San Diego River........  9.5 km (5.9 mi).
                                                   Santa Ysabel Creek       2.4 km (1.5 mi).
                                                    (upper).
                                                   Santa Ysabel Creek       1.0 km (0.6 mi).
                                                    (lower).
                                                   Sweetwater River.......  6.6 km (4.1 mi).
Western Riverside County Multiple Species HCP....  Temecula Creek           18.7 km (11.6 mi).
                                                    (including Vail Lake).
Orange County Southern Subregional HCP...........  Canada Gobernadora       5.9 km (3.7 mi).
                                                    Creek.
City of Carlsbad Habitat Management Plan.........  Agua Hedionda Creek      3.4 km (2.1 mi).
                                                    (upper).
                                                   Agua Hedionda Creek      2.1 km (1.3 mi).
                                                    (lower).
La Jolla Band of Luiseno Indians Management Plan.  San Luis Rey River.....  11.5 km (7.2 mi).
Rincon Band of Luiseno Mission Indians Management  San Luis Rey River.....  2.4 km (1.5 mi).
 Plan.
Pala Band of Luiseno Mission Indians.............  San Luis Rey River.....  3.7 km (2.3 mi).
The Barona and Viejas Groups of Capitan Grande     San Diego River........  4.7 km (2.9 mi).
 Band of Diegueno Mission Indians.
----------------------------------------------------------------------------------------------------------------
                                              Owens Management Unit
----------------------------------------------------------------------------------------------------------------
Los Angeles Department of Water and Power          Owens River............  128.5 km (79.9 mi).
 Management Plan.
----------------------------------------------------------------------------------------------------------------
                                              Kern Management Unit
----------------------------------------------------------------------------------------------------------------
Sprague Ranch Management Plan....................  South Fork Kern River    4.0 km (2.5 mi).
                                                    (north side).
Haffenfeld Ranch Management Plan.................  South Fork Kern River    0.80 km (0.50 mi).
                                                    (south side).
South Fork Kern River Wildlife Area Management     South Fork Kern River..  2.5 km (1.5 mi).
 Plan.
                                                   South Fork Kern River    0.29 km (0.18 mi).
                                                    (Lake Isabella).
----------------------------------------------------------------------------------------------------------------
                                             Salton Management Unit
----------------------------------------------------------------------------------------------------------------
Iipay Nation of Santa Ysabel.....................  San Felipe Creek.......  1.6 km (0.98 mi).
----------------------------------------------------------------------------------------------------------------
                                         Little Colorado Management Unit
----------------------------------------------------------------------------------------------------------------
Zuni Pueblo......................................  Rio Nutria.............  35.8 km (22.2 mi).
                                                   Zuni River.............  39.9 km (24.8 mi).
Navajo Nation....................................  Zuni River.............  15.5 km (9.6 mi).
----------------------------------------------------------------------------------------------------------------
                                          Virgin River Management Unit
----------------------------------------------------------------------------------------------------------------
Clark County MSHCP...............................  Virgin River...........  42.0 km (26.1 mi).
Overton State Wildlife Area Management Plan......  Virgin River...........  6.5 km (4.0 mi).
----------------------------------------------------------------------------------------------------------------
                                         Middle Colorado Management Unit
----------------------------------------------------------------------------------------------------------------
Lower Colorado River MSCP........................  Colorado River (Lake     24.1 km (15.0 mi).
                                                    Mead).
Hualapai Tribe Management Plan...................  Colorado River.........  50.0 km (31.0 mi).
----------------------------------------------------------------------------------------------------------------

[[Page 50583]]

 
                                           Pahranagat Management Unit
----------------------------------------------------------------------------------------------------------------
Key Pittman State Wildlife Area Management Plan..  Pahranagat River.......  4.0 km (2.5 mi).
Overton State Wildlife Area Management Plan......  Muddy River............  3.1 km (1.9 mi).
----------------------------------------------------------------------------------------------------------------
                                          Bill Williams Management Unit
----------------------------------------------------------------------------------------------------------------
Alamo Lake State Wildlife Area Management Plan...  Bill Williams River      5.4 km (3.3 mi).
                                                    (Alamo Lake).
                                                   Santa Maria River        8.4 km (5.2 mi).
                                                    (Alamo Lake).
                                                   Big Sandy River (Alamo   9.6 km (6.0 mi).
                                                    Lake).
Lower Colorado River MSCP........................  Bill Williams River....  0.7 km (0.5 mi).
----------------------------------------------------------------------------------------------------------------
                                      Hoover to Parker Dam Management Unit
----------------------------------------------------------------------------------------------------------------
Lower Colorado River MSCP........................  Colorado River (two      24.7 km (15.3 mi).
                                                    segments).
Fort Mohave Tribe Management Plan................  Colorado River.........  17.0 km (10.6 mi).
Chemehuevi Tribe Management Plan.................  Colorado River.........  21.9 km (13.6 mi).
Lower Colorado River MSCP........................  Bill Williams River....  1.7 km (1.0 mi).
----------------------------------------------------------------------------------------------------------------
                          Parker Dam to Southerly International Border Management Unit
----------------------------------------------------------------------------------------------------------------
Lower Colorado River MSCP........................  Colorado River (two      70.5 km (43.8 mi).
                                                    segments).
Colorado River Indian Tribes Management Plan.....  Colorado River.........  47.7 km (29.7 mi).
Quechan (Fort Yuma) Indian Tribe Management Plan.  Colorado River.........  23.0 km (14.3 mi).
----------------------------------------------------------------------------------------------------------------
                                            San Juan Management Unit
----------------------------------------------------------------------------------------------------------------
Navajo Nation....................................  San Juan River (New      3.5 km (2.2 mi).
                                                    Mexico).
                                                   San Juan River (Utah)..  51.7 km (32.1 mi).
Southern Ute Tribe...............................  Los Pinos River........  25.9 km (16.1 mi).
----------------------------------------------------------------------------------------------------------------
                                              Verde Management Unit
----------------------------------------------------------------------------------------------------------------
Salt River Project Horseshoe and Bartlett Dams     Verde River (Horseshoe   9.6 km (6.0 mi).
 HCP.                                               Lake).
Yavapai Apache Tribal Management Plan............  Verde River............  2.7 km (1.7 mi).
----------------------------------------------------------------------------------------------------------------
                                            Roosevelt Management Unit
----------------------------------------------------------------------------------------------------------------
Salt River Project Roosevelt Lake HCP............  Tonto Creek (Roosevelt   12.8 km (7.9 mi).
                                                    Lake).
                                                   Salt River (Roosevelt    16.3 km (10.1 mi).
                                                    Lake).
----------------------------------------------------------------------------------------------------------------
                                           Upper Gila Management Unit
----------------------------------------------------------------------------------------------------------------
U-Bar Ranch Management Plan......................  Gila River.............  14.0 km (8.7 mi).
San Carlos Apache Tribal Management Plan.........  Gila River.............  31.3 km (19.5 mi).
                                                   Gila River (San Carlos   26.8 km (16.6 mi).
                                                    Lake).
----------------------------------------------------------------------------------------------------------------
                                    Hassayampa and Agua Fria Management Unit
----------------------------------------------------------------------------------------------------------------
Tres Rios Safe Harbor Agreement..................  Gila River.............  8.7 km (5.4 mi).
----------------------------------------------------------------------------------------------------------------
                                         San Luis Valley Management Unit
----------------------------------------------------------------------------------------------------------------
San Luis Valley Partnership......................  Rio Grande.............  159.4 km (99.0 mi).
                                                   Conejos River..........  69.8 km (43.4 mi).
----------------------------------------------------------------------------------------------------------------
                                        Upper Rio Grande Management Unit
----------------------------------------------------------------------------------------------------------------
San Ildefonso Pueblo Partnership.................  Rio Grande.............  7.7 km (4.8 mi).
Santa Clara Pueblo Partnership...................  Rio Grande.............  10.3 km (6.4 mi).
San Juan Pueblo (Ohkay Owingue) Partnership......  Rio Grande.............  9.3 km (5.8 mi).
----------------------------------------------------------------------------------------------------------------

[[Page 50584]]

 
                                        Middle Rio Grande Management Unit
                                                                           -------------------------------------
Elephant Butte Reservoir.........................  Rio Grande.............  45.7 km (28.4 mi).
                                                  --------------------------------------------------------------
    Total........................................  .......................  1,254.3 km (779.4 mi).
----------------------------------------------------------------------------------------------------------------

Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors.
    We will announce the availability of the draft economic analysis as 
soon as it is completed, at which time we will seek public review and 
comment. At that time, copies of the draft economic analysis will be 
available for downloading from the Internet at  http://www.regulations.gov, or by contacting the Arizona Ecological Services 
Office directly (see FOR FURTHER INFORMATION CONTACT section). During 
the development of a final designation, we will consider economic 
impacts, public comments, and other new information, and areas may be 
excluded from the final critical habitat designation under section 
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) where a 
national security impact might exist. In preparing this proposal, we 
have exempted from the designation of critical habitat those Department 
of Defense lands with completed INRMPs determined to provide a benefit 
to the southwestern willow flycatcher. We have also determined that the 
remaining lands within the proposed designation of critical habitat for 
the species are not owned or managed by the Department of Defense, and, 
therefore, we anticipate no impact on national security. Consequently, 
the Secretary does not propose to exert his discretion to exclude any 
areas from the final designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at Tribal management in recognition of their 
capability to appropriately manage their own resources, and consider 
the government-to-government relationship of the United States with 
Tribal entities. We also consider any social impacts that might occur 
because of the designation.
Land and Resource Management Plans, Conservation Plans, or Agreements 
Based on Conservation Partnerships
    We consider a current land management or conservation plan (HCPs as 
well as other types) to provide adequate management or protection if it 
meets the following criteria:
    (1) The plan is complete and provides the same or better level of 
protection from adverse modification or destruction than that provided 
through a consultation under section 7 of the Act;
    (2) There is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and
    (3) The plan provides conservation strategies and measures 
consistent with currently accepted principles of conservation biology.
    We believe that the following HCPs, Plans, Partnerships, and 
Agreements may fulfill the above criteria, and will consider the 
exclusion of these Federal and non-Federal lands covered by these plans 
that provide for the conservation of the flycatcher.
    We are requesting comments on the benefit to flycatcher from these 
following HCPs, Plans, Partnerships, and Agreements; however, at this 
time, we are not proposing the exclusion of any areas in this proposed 
revised critical habitat designation for the flycatcher. However, we 
specifically solicit comments on the inclusion or exclusion of such 
areas.
    In the paragraphs below, organized by Recovery Unit and Management 
Unit, we identify lands we are considering for exclusion under section 
4(b)(2) of the Act.

Coastal California Recovery Unit

Santa Ana Management Unit

Habitat Conservation Plans
Western Riverside County Multiple Species Habitat Conservation Plan 
(MSHCP)
    The Western Riverside County MSHCP is a regional, multi-
jurisdictional HCP encompassing approximately 1.26 million ac (510,000 
ha) of land in western Riverside County. The Western Riverside County 
MSHCP addresses 146 listed and unlisted ``covered species,'' including 
the southwestern willow flycatcher. The Western Riverside County MSHCP 
is a multispecies conservation program designed to minimize and 
mitigate the expected loss of habitat and associated incidental take of 
covered species resulting from covered development activities in the 
Plan area. On June 22, 2004, the Service issued a single incidental 
take permit under section 10(a)(1)(B) of the Act to 22 permittees under 
the Western Riverside County MSHCP to be in effect for a period of 75 
years (Service 2004). The Service anticipates the proposed actions will 
affect the southwestern willow flycatcher, including the loss of up to 
23 percent of the modeled habitat for this species in the plan area 
(Service 2004, p. 227). Within the Plan, and through implementation of 
the Riparian/Riverine Areas and Vernal Pools policy, we anticipate no 
loss of occupied southwest willow flycatcher habitats or areas 
otherwise determined to have long-term conservation value for the 
species (Service 2004, p. 227). We concluded in our biological opinion

[[Page 50585]]

(Service 2004b, p. 227) that implementation of the Plan, as proposed, 
was not likely to jeopardize the continued existence of the 
southwestern willow flycatcher. Our determination was based on our 
conclusion that based on the low level of impact anticipated to 
individuals of this species and because the impacts associated with 
loss of the southwestern willow flycatcher's modeled habitat, when 
viewed in conjunction with the protection and management of the MSHCP 
Conservation Area, are not anticipated to result in an appreciable 
reduction in the numbers, reproduction, or distribution of this 
subspecies throughout its range (Service 2004, p. 227).
    Species-specific conservation objectives are included in the 
Western Riverside County MSHCP for southwestern willow flycatcher. 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 
essential segments of the Santa Ana River, San Timoteo Creek, and 
Temecula Creek (including Vail Lake). The plan aims to conserve 100 
percent of breeding habitat for the flycatcher, including buffer areas 
100 m (328 ft) adjacent to breeding areas. In addition, the Western 
Riverside County MSHCP requires compliance with a Riparian and 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 flycatcher and its 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 will consider excluding portions of the Santa Ana River, San 
Timoteo Creek, Bautista Creek, and Temecula Creek (including Vail Lake) 
within the planning area boundary for the Western Riverside County 
MSHCP from the final designation of flycatcher critical habitat under 
section 4(b)(2) of the Act. We intend to exclude critical habitat from 
areas covered by the Western Riverside County MSHCP based on the 
protections outlined above and per the provisions laid out in the HCP's 
implementing agreement, to the extent consistent with the requirements 
of 4(b)(2) of the Act. We encourage any public comment in relation to 
this consideration.
Tribal Management Plans and Partnerships
Ramona Band of Cahuilla, California
    The Ramona Band of Cahuilla, California, occurs within the Santa 
Ana Management Unit, California. A proposed essential segment of 
Bautista Creek occurs on lands managed by the Ramona Band of Cahuilla. 
We will coordinate with the Ramona Band of Cahuilla and examine what 
flycatcher conservation actions, management plans, and commitments and 
assurances occur on these lands for potential exclusion from the final 
designation of flycatcher critical habitat under section 4(b)(2) of the 
Act.

San Diego Management Unit

Habitat Conservation Plans
San Diego County MSCP
    In southwestern San Diego County, the San Diego MSCP and HCP 
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, including the flycatcher, over the life of the permit (50 
years).
    Portions of lands within the boundaries of the San Diego MSCP and 
HCP contain essential areas for the conservation of the flycatcher, 
including stream segments along the San Dieguito, San Diego, and 
Sweetwater Rivers. These particular areas lie within the boundaries of 
the approved subarea plans.
    Conservation measures specific to the flycatcher within the San 
Diego MSCP and 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.
    We will consider excluding portions of the San Dieguito, San Diego, 
Santa Ysabel, and Sweetwater Rivers within the San Diego MSCP and HCP 
from the final designation of flycatcher critical habitat under section 
4(b)(2) of the Act. We intend to exclude critical habitat from areas 
covered by the San Diego MSCP and HCP based on the protections outlined 
above and per the provisions laid out in the HCP's implementing 
agreement, to the extent consistent with the requirements of 4(b)(2) of 
the Act. We encourage any public comment in relation to this 
consideration.
Orange County Southern Subregional HCP
    The Orange County Southern Subregional HCP was issued permits based 
on the plan by the Service on January 10, 2007, that covers a 75-year 
period. The Orange County Southern Subregion HCP encompasses 
approximately 34,811 ha (86,021 ac) in southern Orange County. The 
Southern Subregional HCP was developed in support of applications for 
incidental take permits for 32 covered species, including the 
flycatcher, by the Orange County, Rancho Mission Viejo, and the Santa 
Margarita Water District in connection with proposed residential 
development and related actions in southern Orange County.
    The Orange County Southern Subregional HCP provides for the 
conservation of covered species, including southwestern willow 
flycatcher, through the establishment of an approximately 12,313 ha 
(30,426 ac) habitat reserve and 1,803 ha (4,456 ac) of supplemental 
open space areas (Service 2007, pp 10, 19). The Southern Subregional 
HCP is expected to conserve the flycatcher through implementing the 
following conservation measures: (1) Conservation of 57 percent of 
nesting and foraging habitat within the Habitat Reserve and adaptively 
managed on Rancho Mission Viejo lands; (2) inclusion in the Habitat 
Reserve of 100 percent of flycatcher locations in the Lower Canada 
Gobernadora ``important'' population in a ``key'' location; (3) 
creation of 2 ha (6 ac) of willow riparian habitat within a 
Supplemental Open Space area on the Prima Deshecha Landfill; (4) 
management of nonnative invasive plant

[[Page 50586]]

species (Tamarisk ramosissima (tamarisk), Arundo donax (arundo), and 
Ricinus communis (castor bean)); (5) assessment of effects from and 
trapping of nonnative animal species (cowbird); (6) and managing 
livestock grazing (Service 2007, pp. 120-123).
    We will consider excluding a portion of Canada Gobernadora Creek 
within the Orange County Southern Subregional HCP from the final 
designation of flycatcher critical habitat under section 4(b)(2) of the 
Act. We intend to exclude critical habitat from areas covered by the 
Orange County Southern Subregional HCP based on the protections 
outlined above and per the provisions laid out in the HCP's 
implementing agreement, to the extent consistent with the requirements 
of 4(b)(2) of the Act. We encourage any public comment in relation to 
this consideration.
City of Carlsbad Habitat Management Plan (HMP)
    The City of Carlsbad's 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 Natural 
Community Conservation Planning program 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 
flycatcher, including portions 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 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, specific 
measures to protect against detrimental edge effects, and removal of 
invasive, exotic species (Arundo donax). Human access to flycatcher-
occupied breeding habitat will be restricted during the breeding season 
(May 1 to 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 exotic vegetation habitat (Arundo donax) is 
removed prior to the initiation of the breeding season.
    Projects having direct or indirect impacts to the 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 flycatchers, 
recognizing 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 or 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 that impact 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 protected areas 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.
    We will consider excluding portions of Agua Hedionda Creek within 
the Carlsbad HMP from the final designation of flycatcher critical 
habitat under section 4(b)(2) of the Act. We intend to exclude critical 
habitat from areas covered by the Carlsbad HMP based on the protections 
outlined above and per the provisions laid out in the HCP's 
implementing agreement, to the extent consistent with the requirements 
of 4(b)(2) of the Act. We encourage any public comment in relation to 
this consideration.
Tribal Management Plans and Partnerships
La Jolla Band of Luiseno Indians
    The La Jolla Band of Luiseno Indians have a segment of proposed 
flycatcher critical habitat along the San Luis Rey River within the San 
Diego Management Unit, in northern San Diego County, California. The La 
Jolla Tribe has developed a Southwestern Willow Flycatcher Management 
Plan (SWFMP).
    The La Jolla Band of Luiseno Indian's SWFMP described a collection 
of measures, protections, and efforts they are and will be undertaking 
to protect flycatchers and their riparian habitat. To address 
environmental issues, the La Jolla Band of Luiseno Indians maintains 
permanent staff, which includes a professional biologist. 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 the San Luis Rey 
River. The La Jolla Band of Luiseno Indians are working to establish 
this piece of river as a reserve for environmental and cultural 
purposes. Management of native riparian vegetation and removal of 
exotic vegetation is occurring that could improve the quality and 
abundance of native plants, and decrease the risk of wildfire. They 
will actively reduce the impact of recreation in riparian areas by 
continuing to educate Tribal Members through outreach programs and

[[Page 50587]]

newsletters. Additionally, they are working to discourage use of off-
road vehicles in riparian areas through education, movement of roads, 
closures, and development of ordinances. The La Jolla Band of Luiseno 
Indians will explore future opportunities for research to determine how 
to best manage for flycatchers.
    We will consider excluding The La Jolla Band of Luiseno Indian's 
land from the final designation of flycatcher critical habitat under 
section 4(b)(2) of the Act.
Rincon Band of Luiseno Mission Indians of the Rincon Reservation
    The Rincon Band of Luiseno Mission Indians land contains a proposed 
segment of flycatcher critical habitat along the San Luis Rey River 
within the San Diego Management Unit, in northern San Diego County, 
California. The Rincon Band of Luiseno Mission Indians have developed a 
SWFMP.
    The Rincon Band of Luiseno Mission Indian's SWFMP addresses 
implementation of a variety of protective flycatcher habitat measures. 
The Rincon Band of Luiseno Mission Indians will monitor and remove 
introduced exotic plants that could reduce the quality and abundance of 
native species, and increase the risk of wildfire. They will exclude 
activities in the floodplain that could remove or reduce riparian 
habitat quality such as mining and livestock grazing. The Rincon Band 
of Luiseno Mission Indians will exclude unauthorized recreational uses 
and off-road vehicle use. Signs, boundaries, and other measures will be 
taken to educate the public and prevent unauthorized recreational use. 
The Rincon Band of Luiseno Mission Indians will dedicate funding to 
this effort, report progress, and coordinate with the Service on SWMP 
updates.
    We will consider excluding The Rincon Band of Luiseno Mission 
Indian's land from the final designation of flycatcher critical habitat 
under section 4(b)(2) of the Act.

Pala Band of Luiseno Mission Indians and the Capitan Grande Band of 
Diegueno Mission Indians of California

    The Pala Band of Luiseno Mission Indians and the Capitan Grande 
Band of Diegueno Mission Indians of California occur within the San 
Diego Management Unit, San Diego County, California. The Pala Band of 
Luiseno Mission Indian's Tribal Land occurs along a segment of proposed 
flycatcher critical habitat on the San Luis Rey River. A proposed 
essential segment of the San Diego River occurs on the land of the 
Capitan Grande Band of Diegueno Mission Indians of California (jointly 
managed by the Barona Group of Capitan Grande Band of Mission Indians 
and the Viejas [Baron Long] Group of Capitan Grande Band of Mission 
Indians).
    We will coordinate with these Tribes and examine what flycatcher 
conservation actions, management plans, and commitments and assurances 
occur on these lands for potential exclusion from the final designation 
of flycatcher critical habitat under section 4(b)(2) of the Act.

Basin and Mohave Recovery Unit, CA and NV

Owens Management Unit

Partnerships, Conservation Plans, or Conservation Easements on Private 
Lands
Los Angeles Department of Water and Power (LADWP) Conservation Strategy
    The LADWP owns and manages a proposed segment of flycatcher 
critical habitat along the Owens River within the Owens Management 
Unit, in Inyo County, California. It is believed that LADWP owns and 
manages the entire extent of flycatcher habitat within this Management 
Unit needed to reach recovery goals.
    The Service and the LADWP signed a memorandum of understanding in 
2005 to implement a flycatcher conservation strategy designed to 
proactively manage flycatchers in the Owens Management Unit. The 
conservation strategy addresses three elements, livestock grazing, 
recreational activities, and wildfires that have the potential to 
adversely affect flycatcher habitat. The conservation strategy provides 
specific measures that: (1) Are designed to create suitable breeding 
habitat for the 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 LADWP will implement the 
aforementioned measures with the goal of promoting the establishment of 
50 flycatcher territories, which is the number of territories needed to 
reach recovery goals identified in the Recovery Plan.
    We will consider excluding LADWP lands from the final designation 
of flycatcher critical habitat under section 4(b)(2) of the Act.

Kern Management Unit

Partnerships, Conservation Plans, or Conservation Easements on Private 
Lands
Haffenfeld Ranch Conservation Easement
    The Haffenfeld Ranch owns and manages a segment of proposed 
flycatcher critical habitat along the South Fork Kern River within the 
Kern River Management Unit, in Kern County, California.
    The Haffenfeld Ranch has developed a Conservation Easement and Plan 
with the Natural Resources Conservation Service that provides 
management and protections for flycatcher habitat. The Haffenfeld 
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. The 
Conservation Easement and Plan establishes that these lands are managed 
for the benefit of the flycatcher by restoring, improving, and 
protecting its habitat. 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 to promote the moisture 
regime and wetland and riparian vegetation for the conservation of the 
flycatcher. Other prohibitions of the easement that would benefit the 
conservation of the 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.
    We will consider excluding Haffenfeld Ranch lands from the final 
designation of flycatcher critical habitat under section 4(b)(2) of the 
Act.
Federal Wildlife Conservation Areas
Sprague Ranch
    The Sprague Ranch is an approximately 1,003-ha (2,479-ac) parcel, 
which includes approximately 395 ha (975 ac) of flycatcher floodplain 
habitat located along the South Fork of

[[Page 50588]]

the Kern River in Kern County, California. 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 
flycatcher. During the periods of time flycatcher habitat is not 
available as a result of short-term inundation from Isabella Dam 
operations, the Sprague Ranch is expected to provide habitat for the 
flycatcher.
    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 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 
important flycatcher habitat and 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 Sprague Ranch contains existing riparian forest that can 
support and maintain nesting territories and migrating and dispersing 
flycatchers. 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. Sprague Ranch is currently being managed in accordance with the 
terms and conditions of the biological opinions specifically for the 
flycatcher.
    We will consider excluding the South Fork Kern River on the Sprague 
Ranch from the final designation of flycatcher critical habitat under 
section 4(b)(2) of the Act.
South Fork Kern River Wildlife Area (SFWA)
    The SFWA is an approximately 514-ha (1,270-ac) parcel of mature 
willow-cottonwood, riparian flycatcher habitat located along the South 
Fork of the Kern River, Kern County, California, west of historic 
Patterson Lane, including a portion of upper Lake Isabella. The SFWA is 
jointly managed by the Corps and the Forest Service. Isabella Dam and 
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 flycatchers.
    Lake Isabella Dam operations that periodically inundate and create 
conditions for flycatcher habitat establishment are managed by the 
Corps in accordance with the terms and conditions of the biological 
opinions. These terms and conditions require conservation actions for 
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 watercraft 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. 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 consultation with the Forest Service, measures for 
the conservation of flycatchers have been implemented, including: 
restricting the speed of watercraft to 8 km per hour (5 mi per hour) 
within 30.5 m (100 ft) of the SFWA; and 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, including cattle grazing.
    We will consider excluding the South Fork Kern River and upper end 
of Lake Isabella within the SFWA from the final designation of 
flycatcher critical habitat under section 4(b)(2) of the Act.

Salton Management Unit

Tribal Management Plans and Partnerships
Iipay Nation of Santa Ysabel
    The Iipay Nation of Santa Ysabel, California (formerly the Santa 
Ysabel Band of Diegueno Mission Indians of the Santa Ysabel 
Reservation), occurs along an essential segment of proposed flycatcher 
critical habitat on San Felipe Creek in the Salton Management Unit, San 
Diego County, California.
    We will coordinate with The Iipay Nation and examine what 
flycatcher conservation actions, management plans, and commitments and 
assurances occur on these lands for potential exclusion from the final 
designation of flycatcher critical habitat under section 4(b)(2) of the 
Act.

Lower Colorado Recovery Unit, NV, AZ, CA, UT, and NM

Little Colorado River Management Unit

Tribal Management Plans and Partnerships
Navajo Nation and Zuni Pueblo
    The Navajo Nation and Zuni Pueblo contain segments of the Rio 
Nutria and Zuni River proposed as flycatcher critical habitat in 
McKinley County, New Mexico. Both river segments occur within the 
Little Colorado River Management Unit.
    We will coordinate with these Tribes and examine what flycatcher 
conservation actions, management plans, and commitments and assurances 
occur on these lands for potential exclusion from the final designation 
of flycatcher critical habitat under section 4(b)(2) of the Act.

Virgin Management Unit

Habitat Conservation Plans
Clark County Multiple Species Habitat Conservation Plan
    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 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.
    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

[[Page 50589]]

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.
    In 2005, these two conditions were not yet fulfilled during our 
previous designation of flycatcher critical habitat; therefore, the 
permittees were not authorized for incidental take of the flycatcher, 
and were subsequently short of meeting the criteria for exclusion under 
section 4(b)(2) of the Act. Clark County is currently in the process of 
amending their MSHCP, but the plan is under development and decisions 
regarding the conservation strategy for riparian birds will not be made 
until the amendment to the plan and the permit are approved. Habitat 
conservation planning has been initiated for the Virgin River as part 
of the development of the Virgin River Habitat Conservation and 
Recovery Program, but, similar to the Clark County MSHCP amendment, the 
Program has not yet been approved and permitted. We will re-evaluate 
flycatcher conservation planning and implementation progress along the 
Virgin River within these two planning efforts during this critical 
habitat designation process.

State Wildlife Areas

Overton State Wildlife Area

    The Overton State Wildlife Area contains segments of both the 
Virgin River (Virgin Management Unit) and Muddy River (Pahranagat 
Management Unit). Please see our description of this area in the 
Pahranagat Management Unit.

Middle Colorado Management Unit

Tribal Management Plans and Partnerships
Hualapai Tribe
    Hualapai Tribal land contains a proposed flycatcher critical 
habitat segment of the Colorado River on the south side of the channel 
in the Middle Colorado Management Unit above Lake Mead in Mohave 
County, Arizona. The Hualapai Tribe has finalized a SWFMP that was 
adopted by the Hualapai Tribal Council.
    The Hualapai Tribe's SWFMP's objectives are to manage riparian 
vegetation to maximize continued presence of native plant species 
suitable for use by flycatchers, ensure that existing land uses (which 
presently include recreational activities) will not result in net loss 
or reduction in quality of flycatcher habitat, and continue their 
Department of Natural Resources partnership in the management of the 
lower Colorado River, including those associated with the LCR MSCP (see 
Hoover to Parker Dam Management Unit section describing potential 
Habitat Conservation Plan exclusions).
    We will consider excluding the Colorado River alongside Hualapai 
Tribal land from the final designation of flycatcher critical habitat 
under section 4(b)(2) of the Act.

Pahranagat Management Unit

State Wildlife Areas
Key Pittman State Wildlife Area
    The Key Pittman State Wildlife Area is located in Lincoln County, 
Nevada, and contains a wide diversity of habitats within its 539 ha 
(1,332 ac). Essential flycatcher habitat occurs along the Pahranagat 
River as it travels through a portion of the Key Pittman State 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 provided the framework for the 
next 10 years. The plan went through stakeholder meetings and public 
review.
    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. The area has 
been under management for wildlife since the 1960s, with conservation 
efforts targeted toward waterfowl, wetland species, and specifically 
the flycatcher.
    Within the Key Pittman Wildlife Area, we will consider excluding 
the Pahranagat River from the final designation of flycatcher critical 
habitat under section 4(b)(2) of the Act.
Overton State Wildlife Area
    The Overton State Wildlife Area is located in Clark County, Nevada, 
and contains a wide diversity of habitats within its 7,146 ha (17,657 
ac). The Muddy River and Virgin River (in the Virgin Management Unit) 
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 essential segments of the Muddy and Virgin 
Rivers (located within both the Pahranagat and Virgin Management Units) 
for the conservation of the flycatcher occur through the boundaries of 
the Overton State Wildlife Area. 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 
primarily for wetland habitat and waterfowl activities (including 
hunting).
    Within the Overton Wildlife Area, we will consider excluding the 
Virgin and Muddy Rivers from the final designation of flycatcher 
critical habitat under section 4(b)(2) of the Act.

Bill Williams Management Unit

State Wildlife Areas
Alamo Lake State Wildlife Area (AWA)
    The Alamo Lake State Wildlife Area (AWA) in La Paz and Mohave 
Counties, Arizona, was created under provisions of the Fish and 
Wildlife Coordination Act (16 U.S.C. 661 et seq.), Public Land Order 
492 (PLO 492), and the General Plan agreement between the Secretary of 
the Army, Secretary of the Interior, and Director of Arizona 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). Proposed 
flycatcher critical habitat occurs along the Big Sandy, Santa Maria, 
and Bill Williams Rivers, which make up the upper portion of Alamo 
Lake.
    The AWA Management Plan describes the unique riparian, wetland, and 
aquatic aspects of the area for a variety of species, specifically 
identifying the flycatcher. As a result, two of the specific resources 
that management

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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, management of 
recreation (i.e., off-road vehicles) is identified as an important 
management objective.
    We will consider excluding the Bill Williams, Santa Maria, and Big 
Sandy Rivers within the Alamo Lake State Wildlife Area from the final 
designation of flycatcher critical habitat under section 4(b)(2) of the 
Act.

Habitat Conservation Plans

Lower Colorado River MSCP

    A portion of the Bill Williams River at the Colorado River 
confluence occur within the planning area of the Lower Colorado River 
MSCP. Please see the Hoover to Parker Dam Management Unit below for a 
description of the LCR MSCP.

Hoover to Parker Dam Management Unit

Habitat Conservation Plans
Lower Colorado River MSCP
    The LCR MSCP was developed for areas along the lower Colorado River 
along the borders of Arizona, California, and Nevada from the 
conservation space of Lake Mead to Mexico, in the Counties of La Paz, 
Mohave, and Yuma in Arizona; Imperial, Riverside, and San Bernardino 
Counties in California; and Clark County in Nevada. 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 the 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 flycatcher issued to the 
Bureau of Reclamation for lower Colorado River operations.
    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 Arizona 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 California 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 Nevada are: The Colorado River 
Commission of Nevada, the Nevada Department of Wildlife, Basic Water 
Company, and the Southern Nevada Water Authority.
    The LCR MSCP primarily surrounds proposed flycatcher critical 
habitat along the Colorado River within the Hoover to Parker Dam and 
Parker Dam to Southerly International Border Management Units. Streams 
in the Middle Colorado (Colorado River and Lake Mead), Virgin (Virgin 
River), and Pahranagat (Muddy River) Management Units in Arizona, Utah, 
and Nevada, are briefly represented where they surround Lake Mead 
(including the conservation space of Lake Mead which extends up the 
Colorado River to Separation Canyon). Also, a portion of the Bill 
Williams River at the Colorado River confluence at Lake Havasu (Bill 
Williams Management Unit) occurs within the LCR MSCP planning area.
    The 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 from fire, nest predators, and brood parasites will 
occur. The development of flycatcher habitat will occur specifically 
throughout the Hoover to Parker Dam and Parker Dam 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. 
Portions of tributaries to the Colorado River, such as the Virgin and 
Muddy Rivers, may occur within the LCR MSCP planning area. Management 
and tasks associated with the HCP will result in improving and 
maintaining important migration stopover habitat, improving 
metapopulation stability, and reducing the risk of catastrophic losses 
due to fire. In addition to creation and subsequent management of 
flycatcher habitats, provision is made in the LCR MSCP to provide funds 
to ensure the maintenance of existing flycatcher habitats within the 
Management Units. Flycatcher management associated with the LCR MSCP 
works in conjunction with management occurring on the National Wildlife 
Refuges (Bill Williams, Havasu, Cibola, and Imperial) and Tribal lands 
(Hualapai, Fort Mohave, Chemehuevi, Colorado River, and Quechan Tribes) 
along the LCR.
    We will consider excluding portions of the Colorado River from the 
uppermost storage space of Lake Mead (in the Middle Colorado River 
Management Unit) downstream through the Hoover to Parker Dam Management 
Unit to the Southerly International Border and portions of tributaries 
(Virgin, Muddy, and Bill Williams Rivers) to the Colorado River that 
may occur within the LCR MSCP planning area that are located in other 
Management Units (Virgin, Pahranagat, and Bill Williams) from the final 
designation of flycatcher critical habitat under section 4(b)(2) of the 
Act.
Tribal Management Plans and Partnerships
Fort Mojave Tribe
    Fort Mojave Tribal land contains a proposed Colorado River segment 
of flycatcher critical habitat in the Hoover to Parker Dam Management 
Unit above Lake Havasu in Mohave County, Arizona. The Fort Mojave Tribe 
has finalized a SWFMP.
    The Fort Mojave Tribe's SWFMP describes that within the Tribe's 
budgetary constraints, they commit management to sustain the current 
value of saltcedar, willow, and cottonwood vegetation that meets moist 
soil conditions necessary to maintain flycatcher habitat; to carry out 
monitoring to determine flycatcher presence and vegetation status in 
cooperation with the Service; and to

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continue to provide wildfire response and law enforcement to protect 
flycatcher habitats. In addition, flycatcher management on Tribal Land 
may work in conjunction with additional flycatcher management 
associated with the LCR MSCP (see the Hoover to Parker Dam Management 
Unit above for a description).
    We will consider excluding the Colorado River within Fort Mojave 
Tribal land from the final designation of flycatcher critical habitat 
under section 4(b)(2) of the Act.

Chemehuevi Tribe

    Chemehuevi Tribal land contains a proposed Colorado River segment 
of flycatcher critical habitat along the on the west side of the 
channel in the Hoover to Parker Dam Management Unit adjacent to the 
Colorado River and Lake Havasu in Mohave County, Arizona. The 
Chemehuevi Tribe has finalized a SWFMP.
    The Chemehuevi Tribe's SWFMP describes that within funding limits, 
they will commit to conduct a variety of flycatcher and flycatcher 
habitat management actions. The management actions include wildfire 
control, improvement of native riparian plants through vegetation 
improvement projects, minimization of impacts associated with 
recreational or other use along the river and lake shorelines, and 
collaboration 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 
wildfires that would result in no net loss or permanent modification 
detrimental to the flycatcher or its habitat as specified by the 
Recovery Plan. Any river or lakeshore land use changes, such as 
recreational or other developments, will take flycatcher habitat needs 
into account and will be done in mutual consultation with the Service 
to minimize detrimental impacts to flycatcher habitat. The SWFMP 
identifies continued cooperation between the Tribe and Service to 
ensure continued management of or improvement to flycatcher habitat. In 
addition, flycatcher management on Tribal Land may work in conjunction 
with additional flycatcher management associated with the LCR MSCP (see 
the Hoover to Parker Dam Management Unit above for a description).
    We will consider excluding the Colorado River within Chemehuevi 
Tribal land from the final designation of flycatcher critical habitat 
under section 4(b)(2) of the Act.

Parker Dam to Southerly International Border Management Unit

Tribal Management Plans and Partnerships
Colorado River Indian Tribes (CRIT)
    The CRIT contains a proposed Colorado River segment of flycatcher 
habitat in the Parker Dam to Southerly International Border Management 
Unit in La Paz County, Arizona. The Colorado River Indian Tribes have 
finalized a SWFMP.
    The CRIT's SWFMP describes a commitment to conduct a variety of 
flycatcher and flycatcher habitat management actions. 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 flycatcher 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. In addition, flycatcher 
management on Tribal Land may work in conjunction with additional 
flycatcher management associated with the LCR MSCP (see the Hoover to 
Parker Dam Management Unit above for a description).
    We will consider excluding the Colorado River within CRIT land from 
the final designation of flycatcher critical habitat under section 
4(b)(2) of the Act.
Quechan (Fort Yuma) Indian Tribe
    Quechan Tribal land contains a proposed Colorado River segment of 
flycatcher critical habitat in the Parker Dam to Southerly 
International Border Management Unit near the City of Yuma in Yuma 
County, Arizona. The Quechan Tribe has completed a SWFMP.
    The Quechan Tribe's SWFMP describes a commitment to conduct a 
variety of flycatcher and flycatcher habitat management actions. The 
Tribe will manage riparian saltcedar that is intermixed with 
cottonwood, willow, mesquite, and arrowweed to maximize potential value 
for nesting flycatchers. Any permanent land use changes for recreation 
or other reasons will consider and support flycatcher needs, as long as 
consistent with Tribal cultural and economic needs. The Tribe will 
consult with the Service to develop and design plans that minimize 
impacts to flycatcher habitat. The Tribe will establish collaborative 
relationships with the Service to benefit the flycatcher, including 
monitoring for flycatcher presence and habitat condition, all within 
the constraints of available funds to the Tribe. In addition, 
flycatcher management on Tribal Land may work in conjunction with 
additional flycatcher management associated with the LCR MSCP (see the 
Hoover to Parker Dam Management Unit above for a description).
    We will consider excluding the Colorado River within Quechan Tribal 
land from the final designation of flycatcher critical habitat under 
section 4(b)(2) of the Act.

Upper Colorado Recovery Unit, AZ, UT, CO, and NM

San Juan Management Unit

Tribal Management Plans and Partnerships
Navajo Nation and Southern Ute Tribe
    The Navajo Nation contains two different essential segments of the 
San Juan River in San Juan County, Utah, and San Juan County, New 
Mexico. Additionally, the Southern Ute Tribe contains an essential 
segment of the Los Pinos River in La Plata County, Colorado. All three 
of these river segments occur within the San Juan Management Unit.
    We will coordinate with these Tribes and examine what flycatcher 
conservation actions, management plans, and commitments and assurances 
occur on these lands for potential exclusion from the final designation 
of flycatcher critical habitat under section 4(b)(2) of the Act.

Gila Recovery Unit, AZ and NM

Verde Management Unit

Habitat Conservation Plans
Horseshoe and Bartlett Dam HCP
    Salt River Project (SRP) developed the 50-year Horseshoe and 
Bartlett Dam HCP to provide habitat conservation for Federally listed, 
candidate, and other species of concern that inhabit Horseshoe and 
Bartlett lakes and the Verde River above and below the two dams in Gila 
and Maricopa Counties, while allowing the continued operation of the 
two reservoirs. The Record of Decision was signed by the Service's

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Region 2 Director on June 13, 2008. SRP provides water from Horseshoe 
and Bartlett directly to various beneficiaries of these storage 
facilities for irrigation and other uses. Water from Horseshoe, 
Bartlett, and SRP's other reservoirs is provided directly by SRP to 
shareholder lands for irrigation and other uses, and is delivered to 
the cities of Avondale, Chandler, Gilbert, Glendale, Mesa, Peoria, 
Phoenix, Scottsdale, Tempe, and Tolleson for municipal use on 
shareholder lands. Water deliveries are also made under specific water 
rights in Horseshoe and Bartlett held by the City of Phoenix, Salt 
River Pima Maricopa Indian Community, and Fort McDowell Yavapai Nation. 
In addition, water is delivered from the SRP reservoir system to the 
cities, Gila River Indian Community, Buckeye Irrigation Company, RWCD, 
and others in satisfaction of their independent water rights. Finally, 
exchange agreements between a number of entities and SRP pursuant to 
State and Federal law are facilitated by stored water from Horseshoe 
and Bartlett.
    The Verde Management Unit, and specifically the water storage space 
within Horseshoe Reservoir, is the primary area where impacts to the 
flycatcher are anticipated to occur through periodic inundation and 
drying of flycatcher habitat. Water storage and periodic inundation of 
an annual average of up to 200 acres of flycatcher habitat would likely 
result in delayed or lost breeding attempts, decreased productivity and 
survivorship of dispersing adults in search of suitable breeding 
habitat, and decreased productivity of adults that attempt to breed at 
Horseshoe Lake.
    The conservation goals of the HCP for the flycatcher would be 
accomplished by a number of minimization and mitigation measures, 
including maintaining and managing riparian habitat within Horseshoe 
Lake, minimizing water storage impacts, and mitigating water storage 
impacts by acquiring and managing flycatcher habitat along the Verde 
River, Gila River, or elsewhere in central Arizona to provide a 
diversity of geographic locations. Impacts within the lake's water 
storage space will be minimized by modifying reservoir operations to 
make riparian habitat available earlier in the nesting season and also 
to maintain riparian vegetation at higher elevations in the reservoir, 
which are farther away from inundation impacts.
    We will consider excluding the water storage area of Horseshoe Lake 
from the final designation of flycatcher critical habitat under section 
4(b)(2) of the Act.
Tribal Management Plans and Partnerships
Yavapai Apache Nation
    The Yavapai Apache Nation contains Verde River segments of proposed 
flycatcher critical habitat in the Verde Management Unit in Yavapai 
County, Arizona. The Yavapai Apache Nation has completed a SWFMP.
    The Yavapai Apache Nation's SWFMP addresses and presents assurances 
for flycatcher habitat conservation. The Nation will, through zoning, 
Tribal ordinances and code requirements, and measures identified in the 
Recovery Plan, take all practicable steps to protect known flycatcher 
habitat 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.
    We will consider excluding the Verde River segments within Yavapai 
Apache Nation from the final designation of flycatcher critical habitat 
under section 4(b)(2) of the Act.

Roosevelt Management Unit

Habitat Conservation Plans
Roosevelt Lake HCP
    An HCP for Salt River Project (SRP) was completed for the operation 
of Roosevelt Dam in Gila and Maricopa Counties, Arizona, 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 Forest 
Service.
    The flycatcher population at Roosevelt Lake, depending on the year, 
can be the largest population of nesting flycatchers across the 
subspecies' range (approximately 150 territories, plus an unknown 
number of unmated, nonbreeding flycatchers and fledglings). The 
confluence of Tonto Creek and the Salt River, which comprise the 
Roosevelt Lake water storage area, is proposed as flycatcher critical 
habitat. 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.
    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. However, even in the expected high-water years, we 
determined that some flycatcher habitat would persist at Roosevelt 
Lake.
    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 Gila Rivers, and possibly other streams in Arizona, 
and implementation of conservation measures to protect up to an 
additional 304 ha (750 ac) of flycatcher habitat. Measures in the HCP 
to protect habitat at Roosevelt Lake include having the Forest Service 
hire a Forest Service employee 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 off-site Rock House Farm Site.
    We will consider excluding the water storage area of Roosevelt Lake 
from the final designation of flycatcher critical habitat under section 
4(b)(2) of the Act.

Upper Gila Management Unit

Partnerships, Conservation Plans, or Conservation Easements on Private 
Lands
U-Bar Ranch
    Pacific Western Land Company (PWLC), a Freeport McMorran (formerly 
Phelps Dodge) subsidiary, owns and manages the U-Bar Ranch (Ranch) near 
Cliff, in Grant County, New Mexico, where a proposed segment of 
flycatcher critical habitat occurs along the Gila River within the 
Upper Gila Management Area.
    The U-Bar Ranch has developed a plan that provides measures to 
conserve, protect, and manage one of the largest known nesting 
flycatcher populations. Many of the flycatcher territories on the Ranch 
are found outside of the flood-prone area, off-channel in a unique 
situation, where

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flycatchers nest in the canopy of mature box elder trees along 
irrigation ditches. Through the efforts of PWLC and its long-time 
lessee, Mr. David Ogilvie, Freeport McMorran has demonstrated a 
commitment to management practices on the Ranch that have conserved and 
benefited flycatcher populations in that area for over a decade. In 
addition, privately funded scientific research at and in the vicinity 
of the Ranch has developed data that have contributed to the 
understanding of flycatcher habitat selection, distribution, prey base, 
and threats. Some specific management practices, varying in different 
grazing 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 flycatcher habitat; (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.
    We will consider excluding U-Bar Ranch lands from the final 
designation of flycatcher critical habitat under section 4(b)(2) of the 
Act.
Tribal Management Plans and Partnerships
San Carlos Apache Tribe
    San Carlos Apache Tribe land contain proposed flycatcher critical 
habitat within the conservation space of San Carlos Lake and the Gila 
River upstream from San Carlos Lake, all within the Upper Gila 
Management Unit in Gila County, Arizona. The San Carlos Apache Tribe 
has finalized a Southwestern Willow Flycatcher Management Plan (SWFMP).
    Implementation of the San Carlos Apache Tribe's SWFMP will protect 
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 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. 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.
    We will consider excluding San Carlos Apache Tribal land from the 
final designation of flycatcher critical habitat under section 4(b)(2) 
of the Act.

Hassayampa and Agua Fria Management Unit

Partnerships, Conservation Plans, or Conservation Easements on Private 
Lands
Tres Rios Safe Harbor Agreement
    The City of Phoenix is in the process of developing a programmatic 
Safe Harbor Agreement with the Service for a continuous section (about 
11 km, 7 mi) of the Gila River immediately downstream from its 
confluence with the Salt River (Tres Rios). This area would encompass a 
segment of proposed flycatcher critical habitat along the Gila River in 
the Hassayampa and Agua Fria Management Unit in Maricopa County, 
Arizona.
    The draft Tres Rios Safe Harbor Agreement currently describes that 
the City of Phoenix will enhance or maintain (or both) approximately 
927 acres of City of Phoenix-owned land, and seek to enroll another 150 
acres owned by the State of Arizona through a certificate of inclusion 
for a period of 50 years. The Permittee would agree to enhance and 
maintain Sonoran Desert and riparian biotic communities, which would 
include, but are not necessarily limited to, planting and maintaining 
native riparian vegetation. The flycatcher would be one of the primary 
targets of this agreement.
    The enrolled lands are owned by the Permittee and are being managed 
for the purposes of riparian habitat recovery, flood protection, and 
passive recreation. Improvements include installing several types of 
wetland and riparian biotic communities, including mesquite bosque, 
cottonwood and willow forest, freshwater marsh, floodplain terrace, 
open water, and aquatic strand. Prior to the Permittee's conservation 
efforts, most areas of the enrolled lands were agricultural or 
contained mostly nonnative species with minimal wildlife habitat value. 
After the conservation measures are implemented, the lands will be 
managed with the primary goal of habitat conservation.
    We will consider excluding Tres Rios lands along the Gila River 
from the final designation of flycatcher critical habitat under section 
4(b)(2) of the Act.

Rio Grande Recovery Unit, CO and NM

San Luis Valley Management Unit

Partnerships, Conservation Plans, and Conservation Easements on Private 
Lands
San Luis Valley Partnership
    The San Luis Valley in south-central Colorado surrounds all 
proposed flycatcher critical habitat along the Rio Grande and Conejos 
Rivers within the San Luis Valley Management Unit.
    A partnership within the San Luis Valley has been formed between a 
collection of south-central Colorado cities, counties, communities, and 
the State of Colorado toward conservation. This partnership is 
developing an HCP in the San Luis Valley. The State of Colorado 
received a $384,000 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 and April 2009, the State received 
Section 6 grants of $120,000 each to draft NEPA documents and finalize 
the HCP. Preliminary drafts of the San Luis Valley Regional HCP have 
been developed and submitted to the Service for review. The HCP as 
proposed would cover nearly 809,000 ha (2 million ac) and 241 km (150 
mi) of habitat for the flycatcher 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 Recovery Plan, and 
extends well beyond the two stream segments along the Rio Grande and 
Conejos Rivers that we have proposed as flycatcher critical habitat.
    We will consider excluding San Luis Valley lands from the final 
designation of flycatcher critical habitat under section 4(b)(2) of the 
Act.

Upper Rio Grande Management Unit

Tribal Management Plans and Partnerships
San Ildefonso Pueblo
    The San Ildefonso Pueblo contains proposed flycatcher habitat along 
the Rio Grande within the Upper Rio Grande Management Unit in Santa Fe 
County, New Mexico.
    The San Ildefonso Pueblo has conducted a variety of voluntary 
measures, restoration projects, and management actions to conserve the 
flycatcher and its habitat on their lands. Multiple-use practices of 
the river and riparian habitat resources are an

[[Page 50594]]

important component of Tribal activities and culture, and as a result, 
the Pueblo has taken steps to manage all the components of the riparian 
habitat. The Pueblo has implemented vegetation management actions to 
reduce flammable exotic vegetation within the floodplain and replace it 
with native riparian trees and shrubs. 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 flycatcher.
    We will consider excluding San Ildefonso Pueblo land from the final 
designation of flycatcher critical habitat under section 4(b)(2) of the 
Act.
Santa Clara Pueblo
    The Santa Clara Pueblo contains proposed flycatcher critical 
habitat along the Rio Grande within the Upper Rio Grande Management 
Unit in Rio Arriba County, New Mexico.
    The Santa Clara Pueblo has conducted a variety of voluntary 
measures, restoration projects, and management actions to conserve the 
flycatcher and its habitat on their lands. Santa Clara Pueblo made a 
commitment to develop an integrated resources management plan to 
address multi-use, enhancement, and management of their natural 
resources. The Pueblo has implemented fuel reduction of flammable 
exotic riparian vegetation and native tree restoration projects in the 
riparian area since 2001, carefully progressing in incremental stages 
to reduce the overall effects to wildlife.
    We will consider excluding Santa Clara Pueblo lands from the final 
designation of flycatcher critical habitat under section 4(b)(2) of the 
Act.
San Juan Pueblo (Ohkay Owingue)
    The San Juan Pueblo contains proposed flycatcher critical habitat 
along the Rio Grande within the Upper Rio Grande Management Unit in Rio 
Arriba County, New Mexico.
    The San Juan Pueblo has conducted a variety of voluntary measures, 
restoration projects, and management actions to conserve the flycatcher 
and its habitat on their lands. The Pueblo has engaged in riparian 
vegetation and wetland improvement projects, while managing to reduce 
the occurrence of wildfire due to the abundance of exotic flammable 
riparian vegetation. Project implementation included conservation, 
monitoring, and management for the flycatcher. The long-term goal of 
the Pueblo's riparian management is to increase habitat 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.
    We will consider excluding San Juan Pueblo (Ohkay Owingue) lands 
from the final designation of flycatcher critical habitat under section 
4(b)(2) of the Act.

Middle Rio Grande Management Unit

Federal Land Management
Elephant Butte Reservoir
    The Middle Rio Grande Management Unit includes Elephant Butte 
Reservoir, a reservoir on the Rio Grande in New Mexico, 5 miles (8.0 
km) north of Truth or Consequences. It is impounded by Elephant Butte 
Dam, owned and operated by the U.S. Bureau of Reclamation, and is the 
largest reservoir in New Mexico. The reservoir is part of the Rio 
Grande Project, a project to provide power and water for irrigation to 
south-central New Mexico and west Texas. It can hold 2,065,010 acre-
feet (2,547,152,330 m\3\) of water from a drainage of 28,900 square 
miles (74,850 km\2\), and provides irrigation to 178,000 acres (720 
km\2\) of land.
    The gradual recession of Elephant Butte Reservoir during the late 
1990s exposed an additional 32 km of lake bottom in this unit. Riparian 
habitat developed alongside the Rio Grande within the exposed 
conservation space. Since 1999, this riparian vegetation has developed 
into flycatcher nesting habitat and the number of flycatcher 
territories dramatically increased. The area within the conservation 
space of Elephant Butte Reservoir is currently the largest known 
flycatcher population in their range; in 2009, a total of 221 pairs and 
291 nests were documented (Moore and Ahlers 2010, p. 43). The Bureau of 
Reclamation develops plans for the operation of the reservoir, the most 
recent being Elephant Butte Reservoir Five-Year Operational Plan: 
Biological Assessment (Reclamation 2009), which includes an assessment 
of the recent flycatcher population numbers within Elephant Butte 
Reservoir and the near reach of the Rio Grande.
    Based on an initial evaluation of potential impacts on water 
operations of the Elephant Butte Dam and Reservoir, we will consider 
excluding the water storage area of Elephant Butte Reservoir from the 
final designation of flycatcher critical habitat under section 4(b)(2) 
of the Act.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will invite these peer reviewers to 
comment during this public comment period on our specific assumptions 
and conclusions in this proposed designation of critical habitat.
    We will consider all comments and information we receive during 
this comment period on this proposed rule during our preparation of a 
final determination. Accordingly, the final decision may differ from 
this proposal.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this proposed rule under 
Executive Order 12866 (Regulatory Planning and Review). OMB bases its 
determination upon the following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the 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

[[Page 50595]]

substantial number of small entities. SBREFA amended RFA to require 
Federal agencies to provide a statement of the factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities.
    At this time, we lack the available economic information necessary 
to provide an adequate factual basis for the required RFA finding. 
Therefore, we defer the RFA finding until completion of the revised 
draft economic analysis prepared under section 4(b)(2) of the Act and 
Executive Order 12866. We previously conducted an economic analysis in 
2005 for the 2004 proposed critical habitat for flycatchers, which 
included an analysis of the effects on small entities. We will revise 
the draft economic analysis for this proposed rule to provide the 
required factual basis for the RFA finding for this revised critical 
habitat proposal. Upon completion of the revised draft economic 
analysis, we will announce availability of the draft economic analysis 
of the proposed designation in the Federal Register and reopen the 
public comment period for the proposed designation. We will include 
with this announcement, as appropriate, an initial regulatory 
flexibility analysis or a certification that the rule will not have a 
significant economic impact on a substantial number of small entities 
accompanied by the factual basis for that determination.

Energy Supply, Distribution, or Use--Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed rule to designate revised critical habitat for the 
flycatcher is not expected to significantly affect energy supplies, 
distribution, or use because there are no pipelines, distribution 
facilities, power grid stations, etc., within the boundaries of 
proposed revised critical habitat. Therefore, this action is not a 
significant energy action and no Statement of Energy Effects is 
required. We will, however, further evaluate this issue as we conduct 
our economic analysis and, as appropriate, review and revise this 
assessment as warranted.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule would 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; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) Based in part on an analysis conducted for the previous 
designation of flycatcher critical habitat (70 FR 60886, October 19, 
2005) and extrapolated to this designation, we do not expect this rule 
to significantly or uniquely affect small governments. Small 
governments will be affected only to the extent that any programs 
having Federal funds, permits, or other authorized activities must 
ensure that their actions will not adversely affect the critical 
habitat. Therefore, a Small Government Agency Plan is not required. 
However, we will further evaluate these issues as we conduct our 
economic analysis, and review and revise this assessment as warranted.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), this rule is not anticipated to have significant takings 
implications. As discussed above, the designation of critical habitat 
affects only Federal actions. Although private parties that receive 
Federal funding, assistance, or require approval or authorization from 
a Federal agency for an action may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency. Due to current public knowledge of the species 
protections and the prohibition against take of the species both within 
and outside of the proposed areas, we do not anticipate that property 
values would be affected by this revised critical habitat designation. 
However, we have not yet completed the economic analysis for this 
proposed rule. Once the revised economic analysis is available, we will 
review and revise this preliminary assessment as warranted, and prepare 
a Takings Implication Assessment.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism assessment is not required. In keeping with Department of 
the Interior and Department of Commerce policy, we requested 
information from, and coordinated development of, this proposed 
critical habitat designation with appropriate State resource agencies 
in Arizona,

[[Page 50596]]

Utah, Nevada, California, New Mexico, and Colorado. The designation of 
critical habitat in areas currently occupied by the flycatcher may 
impose nominal additional regulatory restrictions to those currently in 
place and, therefore, may have little incremental impact on State and 
local governments and their activities. The designation may have some 
benefit to these governments because the areas that contain the 
physical or biological features essential to the conservation of the 
species are more clearly defined, and the elements of the features of 
the habitat necessary to the conservation of the species are 
specifically identified. This information does not alter where and what 
Federally sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. This 
proposed rule uses standard property descriptions and identifies the 
elements of physical or biological features essential to the 
conservation of the flycatcher within the designated areas to assist 
the public in understanding the habitat needs of the species.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). 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 (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) 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 position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the 
range of the species includes States within the Tenth Circuit, such as 
that of flycatcher, under the Tenth Circuit ruling in Catron County 
Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 
(10th Cir. 1996), we will undertake a NEPA analysis for critical 
habitat designation and notify the public of the availability of the 
draft environmental assessment for this proposal when it is finished.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

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 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes.
    There are Tribal lands in California, Utah, Arizona, Colorado, and 
New Mexico included in this proposed designation of critical habitat. 
At the end of the 2007 flycatcher breeding season, 5 percent of all 
known breeding sites were administered by Native American Tribes (Durst 
et al. 2007, p. 17). Using the criteria found in the Criteria Used To 
Identify Critical Habitat section, we have determined that all of the 
areas proposed for designation on Tribal lands are essential to the 
conservation of the species. We will seek government-to-government 
consultation with these Tribes throughout the proposal and development 
of the final designation of flycatcher critical habitat. We will 
consider these areas for exclusion from final critical habitat 
designation to the extent consistent with the requirements of 4(b)(2) 
of the Act. We recently informed Tribes of how we are evaluating 
section 4(b)(2) of the Act and of our interest in consulting with them 
on a government-to-government basis.

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at http://www.regulations.gov and upon request from the 
Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this package are the staff members of the 
Arizona Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

[[Page 50597]]

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec.  17.11(h), revise the entry for ``Flycatcher, 
southwestern willow'' under ``BIRDS'' in the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Birds
 
                                                                      * * * * * * *
Flycatcher, southwestern willow..  Empidonax traillii    U.S.A. (AZ, CA, CO,  Entire.............  E                       577     17.95(b)           NA
                                    extimus.              NM, NV, TX, UT),
                                                          Mexico.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.95, amend paragraph (b) by revising the entry for 
``Southwestern Willow Flycatcher (Empidonax traillii extimus),'' in the 
same alphabetical order that the species appears in the table at Sec.  
17.11(h), 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 Imperial, Inyo, Kern, 
Los Angeles, Mono, Orange, Riverside, Santa Barbara, San Bernardino, 
San Diego, and Ventura Counties in California; Clark, Lincoln, and Nye 
Counties in Nevada; Kane, San Juan, and Washington Counties in Utah; 
Alamosa, Conejos, Costilla, La Plata, and Rio Grande Counties in 
Colorado; Apache, Cochise, Gila, Graham, Greenlee, La Paz, Maricopa, 
Mohave, Pima, Pinal, Santa Cruz, Yavapai, and Yuma Counties in Arizona; 
and Catron, Cibola, Dona Ana, Grant, Hidalgo, McKinley, Mora, Rio 
Arriba, Santa Fe, San Juan, Sierra, Soccoro, Taos, and Valencia 
Counties in New Mexico on the maps and as described below.
    (2) Within these areas, the primary constituent elements of the 
physical and biological features essential to the conservation of the 
southwestern willow flycatcher consist of two components:
    (i) Primary Constituent Element 1--Riparian vegetation. Riparian 
habitat in a dynamic river or lakeside, natural or manmade successional 
environment (for nesting, foraging, migration, dispersal, and shelter) 
that is comprised of trees and shrubs (that can include Gooddings 
willow, coyote willow, Geyers willow, arroyo willow, red willow, 
yewleaf willow, pacific willow, boxelder, tamarisk, Russian olive, 
buttonbush, cottonwood, stinging nettle, alder, velvet ash, poison 
hemlock, blackberry, seep willow, oak, rose, sycamore, false indigo, 
Pacific poison ivy, grape, Virginia creeper, Siberian elm, and walnut) 
and some combination of:
    (A) Dense riparian vegetation with thickets of trees and shrubs 
that can range in height from about 2 m to 30 m (about 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; and/or
    (B) 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 or tree level as a low, dense canopy; and/or
    (C) Sites for nesting that contain a dense (about 50 percent to 100 
percent) tree or shrub (or both) canopy (the amount of cover provided 
by tree and shrub branches measured from the ground); and/or
    (D) Dense patches of riparian forests that are interspersed with 
small openings of open water or marsh or areas with shorter and sparser 
vegetation that creates a variety of habitat 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) Primary Constituent Element 2--Insect prey populations. A 
variety of insect prey populations found within or adjacent to riparian 
floodplains or moist environments, which can include: flying ants, 
wasps, and bees (Hymenoptera); dragonflies (Odonata); flies (Diptera); 
true bugs (Hemiptera); beetles (Coleoptera); butterflies, moths, and 
caterpillars (Lepidoptera); and spittlebugs (Homoptera).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created in two steps. First, the linear segments were mapped from the 
National Hydrologic Dataset using USA Contiguous Equidistant Conic 
(North American Datum 1983) coordinates. Next, the lateral extents were 
digitized over the most recent available aerial photography using 
Albers Equal Area Conic (North American Datum 1983) coordinates. The 
textual description for each critical habitat unit below includes the 
Universal Transverse Mercator (UTM) zone and UTM easting (E) and 
northing (N) coordinate pairs for the starting and ending points.

    Note: (5) Index map of southwestern willow flycatcher critical 
habitat units follows:


[[Page 50598]]


[GRAPHIC] [TIFF OMITTED] TP15AU11.000

    (6) Santa Ynez Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Santa Ynez River (upper)......................................      11, 259890, 3821926      11, 255550, 3823716
Santa Ynez River (middle).....................................      11, 253343, 3823606      11, 249967, 3824847
Santa Ynez River (lower)......................................      10, 759116, 3832075      10, 732972, 3839168

[[Page 50599]]

 
Mono Creek....................................................      11, 258529, 3824766      11, 258310, 3822974
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Santa Ynez Management Unit follows:

[GRAPHIC] [TIFF OMITTED] TP15AU11.001

    (7) Santa Clara Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Ventura River.................................................      11, 287996, 3818329      11, 287559, 3794961
Santa Clara River.............................................      11, 358481, 3810219      11, 291354, 3790556

[[Page 50600]]

 
Piru Creek....................................................      11, 339998, 3831805      11, 335776, 3807951
Castaic Creek.................................................      11, 351629, 3813373      11, 350055, 3809756
Big Tujunga Canyon Creek......................................      11, 376326, 3792941      11, 372432, 3792049
Little Tujunga Canyon Creek...................................      11, 375223, 3795681      11, 373846, 3794336
San Gabriel River.............................................      11, 418737, 3781999      11, 410558, 3775011
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Santa Clara Management Unit follows:

[GRAPHIC] [TIFF OMITTED] TP15AU11.002

    (8) Santa Ana Management Unit.
    (i)



[[Page 50601]]



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Santa Ana River (upper).......................................      11, 524293, 3778965      11, 491603, 3775416
Santa Ana River (lower).......................................      11, 476054, 3771257      11, 440482, 3750310
Waterman Creek................................................      11, 474905, 3782822      11, 473755, 3785448
Waterman Creek (left fork)....................................      11, 473453, 3785826      11, 473755, 3785448
Waterman Creek (right fork)...................................      11, 474240, 3786803      11, 473755, 3785448
Bear Creek....................................................      11, 502121, 3788996      11, 498606, 3779948
Mill Creek....................................................      11, 514496, 3770619      11, 496356, 3772092
Oak Glen Creek................................................      11, 505534, 3767595      11, 501351, 3768018
San Timoteo Creek.............................................      11, 501075, 3753255      11, 481625, 3764986
Bautista Creek................................................      11, 528791, 3720143      11, 514049, 3727872
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Santa Ana Management Unit follows:

[GRAPHIC] [TIFF OMITTED] TP15AU11.003


[[Page 50602]]

    (9) San Diego Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Canada Gobernadora Creek......................................      11, 443758, 3709886      11, 445478, 3713561
DeLuz Creek...................................................      11, 469888, 3700258      11, 470085, 3697512
Santa Margarita River.........................................      11, 481662, 3699235      11, 476206, 3695949
Temecula Creek................................................      11, 517749, 3695379      11, 502050, 3704986
Pilgrim Creek.................................................      11, 471495, 3681452      11, 468703, 3677979
San Luis Rey (upper)..........................................      11, 522199, 3678133      11, 502102, 3684334
San Luis Rey (lower)..........................................      11, 500948, 3684975      11, 464169, 3674286
Agua Hedionda Creek (upper)...................................      11, 473644, 3667656      11, 478368, 3668540
Agua Hedionda Creek (lower)...................................      11, 470613, 3666848      11, 472211, 3667859
Agua Hedionda Creek (right fork)..............................      11, 478544, 3668255      11, 478368, 3668540
Agua Hedionda Creek (left fork)...............................      11, 479102, 3668675      11, 478368, 3668540
Temescal Creek................................................      11, 514095, 3671020      11, 513763, 3664632
Santa Ysabel River (upper)....................................      11, 508395, 3661105      11, 513763, 3664632
San Dieguito River/Santa Ysabel River (lower).................      11, 500998, 3660643      11, 493522, 3657877
San Diego River (upper).......................................      11, 524742, 3650609      11, 521804, 3645772
San Diego River (lower).......................................      11, 495073, 3632262      11, 502847, 3634390
Sweetwater River..............................................      11, 506745, 3622685      11, 502808, 3618825
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of San Diego Management Unit follows:


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    (10) Owens Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Owens River...................................................      11, 350379, 4161519      11, 765571, 4009492
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Owens Management Unit follows:


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    (11) Kern Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
South Fork Kern River.........................................      11, 393579, 3955510      11, 375779, 3947268
Canebrake Creek...............................................      11, 395263, 3954472      11, 393671, 3954409
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Kern Management Unit follows:


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    (12) Mojave Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Mojave River..................................................      11, 469646, 3844680      11, 476583, 3814381
West Fork Mojave River........................................      11, 469339, 3796375      11, 478190, 3800025
Deep Creek....................................................      11, 478190, 3800025      11, 488326, 3794046
Holcomb Creek.................................................      11, 503127, 3796007      11, 488326, 3794046
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Mojave Management Unit follows:


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    (13) Salton Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
San Felipe Creek..............................................      11, 535067, 3671838      11, 549258, 3662280
Mill Creek....................................................      11, 514496, 3770619      11, 496356, 3772092
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Salton Management Unit follows:


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    (14) Amargosa Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Amargosa River................................................      11, 569473, 3967513      11, 570730, 3958035
Willow Creek..................................................      11, 574000, 3962736      11, 572077, 3960419
----------------------------------------------------------------------------------------------------------------

     (ii) Ash Meadows Riparian Areas and Carson Slough (UTM zone 11, E, 
N): 559058.51, 4038462.72; 559169.18, 4038088.61; 559257.50, 
4037821.45; 559388.34, 4037661.69; 559778.65, 4037503.73; 560038.12, 
4037505.53;

[[Page 50608]]

559928.15, 4037772.53; 560533.55, 4037776.76; 560493.50, 4037321.28; 
560571.70, 4035420.70; 560182.40, 4035417.98; 559813.81, 4035549.30; 
559773.33, 4035147.38; 558519.07, 4035112.01; 558573.22, 4033505.81; 
559395.43, 4033484.65; 559465.49, 4032735.40; 560244.32, 032740.79; 
560271.74, 4031910.92; 560986.12, 4031862.37; 561078.15, 4031086.51; 
561424.94, 4031008.64; 561397.41, 4031838.51; 561873.41, 4031841.90; 
561890.65, 4029432.17; 562691.62, 4029411.15; 562704.34, 4030642.95; 
564305.88, 4030627.93; 564333.69, 4029798.07; 564658.52, 4029773.72; 
564738.26, 4027792.87; 561469.58, 4027769.05; 561442.43, 4028545.36; 
561052.25, 4028622.93; 560229.19, 4028697.49; 560263.14, 4026930.51; 
559895.10, 4026927.96; 559857.36, 4026124.42; 559055.73, 4026199.25; 
558941.05, 4030321.96; 558616.44, 4030319.75; 558621.57, 4032756.41; 
558232.15, 4032753.78; 558180.93, 4030718.45; 557791.43, 4030715.84; 
557767.10, 4031117.32; 556641.56, 4031163.43; 556566.66, 4032689.17; 
555701.11, 4032710.32; 555755.65, 4034317.23; 556166.45, 4034346.67; 
556120.93, 4034694.46; 556964.48, 4034699.98; 556891.48, 4035931.20; 
557323.83, 4035960.84; 557319.38, 4036630.21; 557687.18, 4036605.88; 
557638.92, 4037355.30; 558417.16, 4037387.30; 558393.18, 4037735.23; 
558760.75, 4037737.73; 558755.83, 4038460.66; 559058.51, 4038462.72.
    (iii) Note: Map of Amargosa Management Unit follows:

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    (15) Little Colorado Management Unit.
    (i)







----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Little Colorado River.........................................      12, 647842, 3773009      12, 642537, 3763668
West Fork Little Colorado River...............................      12, 636971, 3758442      12, 642537, 3763668
Zuni River....................................................      12, 678602, 3860436      12, 708162, 3887682
Rio Nutria....................................................      12, 721505, 3906369      12, 708162, 3887682
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Little Colorado Management Unit follows:


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    (16) Virgin Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Virgin River..................................................      12, 288341, 4116050      11, 738928, 4046898
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Virgin Management Unit follows:


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    (17) Middle Colorado Management Unit.
    (i)







----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Colorado River................................................      12, 263719, 3969968      11, 765571, 4009492
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Middle Colorado Management Unit follows:


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    (18) Pahranagat Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Pahranagat River (upper)......................................      11, 657017, 4161188      11, 656269, 4155884
Pahranagat River (lower)......................................      11, 673597, 4118506      11, 665370, 4131144
Muddy River...................................................      11, 730143, 4046415      11, 731860, 4044267
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Pahranagat Management Unit follows:


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    (19) Bill Williams Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Big Sandy River...............................................      12, 261621, 3843406      12, 259631, 3818574
Big Sandy River (Alamo Lake)..................................      12, 266124, 3806764      12, 267166, 3799203
Santa Maria River (Alamo Lake)................................      12, 274410, 3798130      12, 267166, 3799203
Bill Williams River (Alamo Lake)..............................      12, 263610, 3795533      12, 267166, 3799203
Bill Williams River (middle)..................................      12, 254565, 3788878      12, 240599, 3791815
Bill Williams River (lower)...................................      12, 229050, 3794316      11, 769317, 3798440
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Bill Williams Management Unit follows:


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    (20) Hoover to Parker Dam Management Unit.
    (i)







----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Colorado River................................................      11, 715649, 3876762      11, 727771, 3757030
Bill Williams River...........................................      11, 769317, 3798440      11, 769317, 3798440
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Hoover to Parker Dam Management Unit, follows:


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    (21) Parker Dam to Southerly International Border Management Unit.
    (i)






----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Colorado River (upper)........................................      11, 727771, 3757030      11, 724019, 3709582
Colorado River (lower)........................................      11, 724019, 3709582      11, 713921, 3622846
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Parker Dam to Southerly International Border Management Unit follows:


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    (22) San Juan Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Los Pinos River...............................................      13, 267242, 4134582      13, 268541, 4098153
San Juan River (New Mexico)...................................      12, 699204, 4081392      12, 696480, 4082859
San Juan River (Utah).........................................      12, 654810, 4123395      12, 613885, 4117721
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of San Juan Management Unit follows:


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    (23) Powell Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Paria River...................................................      12, 417429, 4120619      12, 419459, 4107235
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Powell Management Unit follows:


[[Page 50618]]

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    (24) Verde Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Verde River (upper)...........................................      12, 402583, 3854022      12, 428120, 3814335
Verde River (lower)...........................................      12, 438102, 3793821      12, 436961, 3756352
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Verde Management Unit follows:


[[Page 50619]]

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    (25) Roosevelt Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Tonto Creek...................................................      12, 474349, 3773074      12, 477856, 3734906
Roosevelt Lake................................................      12, 477856, 3734906      12, 500594, 3724174
Salt River....................................................      12, 518565, 3725825      12, 500594, 3724174
Pinal Creek...................................................      12, 511992, 3710574      12, 509313, 3714692
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Roosevelt Management Unit follows:


[[Page 50620]]

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    (26) Middle Gila and San Pedro Management Unit.
    (i)






----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Gila River....................................................      12, 527193, 3660545      12, 476979, 3662407
San Pedro River...............................................      12, 566945, 3554766      12, 520287, 3649594
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Middle Gila San Pedro Management Unit follows:


[[Page 50621]]

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    (27) Upper Gila Management Unit.
    (i)



----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Gila River (upper)............................................      12, 734274, 3662473      12, 724979, 3631107
Gila River (middle)...........................................      12, 639563, 3639230      12, 544025, 3670779
Gila River (lower)............................................      12, 717951, 3623479      12, 677635, 3622749
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Upper Gila Management Unit follows:


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    (28) Santa Cruz Management Unit.
    (i)





----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Santa Cruz River..............................................      12, 502742, 3480432      12, 502742, 3480432
Cienega Creek.................................................      12, 538826, 3519337      12, 540238, 3524746
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Santa Cruz Management Unit follows:


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    (29) San Francisco Management Unit.
    (i)





----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM Zone, E, N
----------------------------------------------------------------------------------------------------------------
San Francisco River (upper)...................................      12, 681827, 3679571      12, 661571, 3670502
San Francisco River (middle)..................................      12, 693857, 3703486      12, 697331, 3680357
San Francisco River (lower)...................................      12, 666982, 3748335      12, 699562, 3745269
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of San Francisco Management Unit follows:


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    (30) Hassayamapa and Agua Fria Management Unit.
    (i)






----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Hassayampa River..............................................      12, 342308, 3757092      12, 345848, 3751261
Gila River....................................................      12, 379985, 3694255      12, 372194, 3695509
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Hassayamapa and Agua Fria Management Unit follows:


[[Page 50625]]

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    (31) San Luis Valley Management Unit.
    (i)







----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Conejos River.................................................      13, 394419, 4101506      13, 434790, 4128834
Rio Grande....................................................      13, 371291, 4172297      13, 432747, 4103848
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of San Luis Valley Management Unit follows:


[[Page 50626]]

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






----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Rio Grande....................................................      13, 434154, 4021496      13, 396993, 3970707
Coyote Creek..................................................      13, 479246, 4005468      13, 480419, 3997620
Rio Grande del Rancho.........................................      13, 447971, 4012369      13, 446044, 4021640
Rio Fernando..................................................      13, 447152, 4028423      13, 446856, 4028320
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Upper Rio Grande Management Unit follows:


[[Page 50627]]

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






----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Rio Grande....................................................      13, 343067, 3856213      13, 298922, 3683834
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Middle Rio Grande Management Unit follows:


[[Page 50628]]

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    (34) Lower Rio Grande Management Unit.
    (i)






----------------------------------------------------------------------------------------------------------------
                        Stream segment                           Start: UTM zone, E, N     End: UTM zone, E, N
----------------------------------------------------------------------------------------------------------------
Rio Grande....................................................      13, 285590, 3642144      13, 319325, 3597154
----------------------------------------------------------------------------------------------------------------
(ii) Note: Map of Lower Rio Grande Management Unit follows:


[[Page 50629]]

[GRAPHIC] [TIFF OMITTED] TP15AU11.029

* * * * *

    Dated: July 22, 2011.
Rachel Jacobsen,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-19713 Filed 8-12-11; 8:45 am]
BILLING CODE 4310-55-P