[Federal Register Volume 77, Number 134 (Thursday, July 12, 2012)]
[Proposed Rules]
[Pages 41147-41162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16990]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2011-0053: 4500030114]
RIN 1018-AX43


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the August 15, 2011, proposed 
designation of revised critical habitat for the southwestern willow 
flycatcher (Empidonax traillii extimus) (flycatcher) under the 
Endangered Species Act of 1973, as amended (Act). We are reopening the 
comment period to allow all interested parties an opportunity to 
comment on our amended required determinations and revisions to the 
proposed revised designation, which include additional areas as 
proposed critical habitat on two streams within the Santa Cruz 
Management Unit, Arizona, and revisions to areas being considered for 
exclusion under section 4(b)(2) of the Act. We are accepting comments 
on the draft environmental assessment prepared in compliance with the 
National Environmental Policy Act (NEPA) and the draft economic 
analysis associated with the proposed rule. We are also providing 
notice of a public informational session and hearing (see DATES and 
ADDRESSES). Comments previously submitted need not be resubmitted, as 
they will be fully considered in preparation of the final rule.

DATES: Written comments: We will consider comments received on or 
before September 10, 2012. Comments submitted electronically using the 
Federal eRulemaking Portal (see ADDRESSES section, below) must be 
received by 11:59 p.m. Eastern Time on the closing date.
    Public informational session and public hearing: We will hold a 
public hearing on August 16, 2012, in San Carlos, AZ (see ADDRESSES). 
The hearing is open to all who wish to provide formal, oral comments 
regarding the proposed rule, and will be held from 6:30 p.m. to 8:00 
p.m., with an informational session before the hearing from 3:00 p.m. 
to 4:30 p.m. During the informational session, Service employees will 
be available to provide information and answer questions.

ADDRESSES: Document availability: You may obtain copies of the proposed 
rule, draft economic analysis, and draft environmental assessment on 
the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-
2011-0053 or by mail from the Arizona Ecological Services Office (see 
FOR FURTHER INFORMATION CONTACT).
    Written comments: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for 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-2011-0053; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. 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).
    Public informational session and public hearing: The public 
informational session and hearing will be held at Apache Gold 
Convention Center, Highway 70, 5 miles East of Globe, in San Carlos, AZ 
85550. People needing reasonable accommodations in order to attend and 
participate in the public hearing should contact Steve

[[Page 41148]]

Spangle, Field Supervisor, Arizona Ecological Services Office, as soon 
as possible (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Office, 2321 West Royal Palm Road, Suite 
103, Phoenix, AZ, 85021; telephone 602-242-0201; facsimile 602-242-
0513. Persons who use a telecommunications device for the deaf (TDD) 
may call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed designation of revised 
flycatcher critical habitat that was published in the Federal Register 
on August 15, 2011 (76 FR 50542). We are accepting comments regarding 
additional areas we are proposing as critical habitat in this document 
and other areas that we are considering for exclusion under section 
4(b)(2) of the Act (16 U.S.C. 1531 et seq.), as discussed in this 
document. We are also accepting comments on the amended required 
determinations section, the draft economic analysis, and the draft 
environmental assessment prepared in compliance with NEPA (42 U.S.C. 
4321 et seq.). We will consider information and recommendations from 
all interested parties. We are particularly interested in comments 
concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act, 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 is not prudent.
    (2) Specific information on:
    (a) The distribution of the flycatcher;
    (b) The amount and distribution of flycatcher habitat;
    (c) 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;
    (d) What areas not occupied at the time of listing that meet our 
criteria as being essential for the conservation of the species should 
be included in the designation and why;
    (e) 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;
    (f) 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;
    (g) Flycatcher habitat suitability for recovery in areas within the 
Santa Ana and San Diego Management Units in southern California, 
specifically in 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 revised 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, we seek information 
concerning 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:
    (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 (HCPs), 
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 in our 2005 flycatcher critical habitat 
designation (70 FR 60886, October 19, 2005) and lands to be newly 
considered for exclusion in this revision to designated critical 
habitat, 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; and
    (c) Information concerning the benefits of excluding or retaining 
lands we identify in the proposed critical habitat rule and revisions 
herein 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.
    (8) Information on the extent to which the description of economic 
impacts in the draft environmental analysis is complete and accurate.
    (9) The likelihood of adverse social reactions to the designation 
of critical

[[Page 41149]]

habitat, as discussed in the draft environmental assessment, and how 
the consequences of such reactions, if likely to occur, would relate to 
the conservation and regulatory benefits of the proposed revised 
critical habitat designation.
    (10) Information on the extent to which the description and 
evaluation of the proposal included in the draft environmental 
assessment is complete and accurate.
    If you submitted comments or information on the proposed revised 
rule (76 FR 50542) from August 15, 2011, to October 14, 2011, or since 
the initial comment period ended, please do not resubmit them. We will 
incorporate them into the public record as part of this comment period, 
and we will fully consider them in the preparation of our final 
determination. Our final determination concerning revised critical 
habitat will take into consideration all written comments, oral 
comments received during the public hearing, and any additional 
information we receive during both comment periods and the time between 
each comment period.
    You may submit your comments and materials concerning the proposed 
revised rule, draft economic analysis, or draft environmental 
assessment by one of the methods listed in the ADDRESSES section. We 
request that you send comments only by the methods described in the 
ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information 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 the proposed rule, draft economic 
analysis, and draft environmental assessment, will be available for 
public inspection on http://www.regulations.gov at Docket No. FWS-R2-
ES-2011-0053, or by appointment, during normal business hours, at the 
Arizona Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT). You may obtain copies of the proposed rule, draft economic 
analysis, and draft environmental assessment on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2011-0053, or by mail from 
the Arizona Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT section).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of revised critical habitat for the flycatcher in this 
document. For more information on previous Federal actions concerning 
the flycatcher, refer to the proposed designation of revised critical 
habitat published in the Federal Register on August 15, 2011 (76 FR 
50542). Background information on the flycatcher can be found in the 
2005 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 Recovery Plan; our 
first flycatcher critical habitat designation, published July 22, 1997 
(62 FR 39129), and corrected on August 20, 1997 (62 FR 44228); the 
final flycatcher listing rule (60 FR 10694, February 27, 1995); and 
other documents described and cited in the August 15, 2011, flycatcher 
critical habitat proposal (76 FR 50542). 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. No new literature is 
being cited within this document. The current 2005 critical habitat 
rule remains in effect while this rulemaking process proceeds. For more 
information on this revised flycatcher critical habitat proposal, 
please go online to http://www.regulations.gov (at Docket No. FWS-R2-
ES-2011-0053) or http://www.fws.gov/southwest/es/arizona/. All 
references cited in the August 15, 2011, flycatcher critical habitat 
revision proposal (76 FR 50542) can be retrieved from these Web sites. 
You can also contact the Arizona Ecological Services Office (see FOR 
FURTHER INFORMATION CONTACT).

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 stream kilometers (km) (599 
stream miles (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 designation for portions of Arizona, California, New Mexico, 
Nevada, and Utah, totaling approximately 1,186 km (737 mi). River 
segments were designated as critical habitat in 15 of the 32 Management 
Units described in the Recovery Plan. We were sued by the Center for 
Biological Diversity over our 2005 critical habitat rule, and on July 
13, 2010, we agreed to revise critical habitat. The resulting 
settlement left the existing critical habitat designation from 2005 in 
effect, and required that we deliver a proposed rule for a revised 
critical habitat to the Federal Register by July 31, 2011, and a final 
rule by July 31, 2012. On March 22, 2012, the settlement agreement was 
modified to make the final rule due to the Federal Register by December 
14, 2012.
    On August 15, 2011, we published a proposed rule to revise critical 
habitat for the flycatcher (76 FR 50542). We proposed to designate 
approximately 3,364 stream km (2,090 stream mi) of critical habitat, 
which includes various stream segments and their associated riparian 
areas, not exceeding the 100-year floodplain, on a combination of 
Federal, State, tribal, and private lands in California, Arizona, New 
Mexico, southern Nevada, Utah, and Colorado. We identified 
approximately 1,254 km (779 miles) of river habitat that we were 
considering for exclusion under section 4(b)(2) of the Act. That 
proposal had a 60-day comment period ending October 14, 2011.

Critical Habitat

    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting critical habitat must consult with us on the effects of their 
proposed actions, under section 7(a)(2) of the Act.

Changes From Previously Proposed Critical Habitat

    In this document, we are notifying the public of: (1) two changes 
to the proposed revision of flycatcher critical habitat, and (2) 
additional and revised areas that we are considering for exclusion from 
the final designation of

[[Page 41150]]

critical habitat. We describe below the two newly proposed changes to 
the critical habitat designation, and we describe the additional areas 
being considered for exclusion in the Consideration of Impacts under 
Section 4(b)(2) of the Act section of this document. All other areas 
proposed on August 15, 2011, remain proposed for designation as 
critical habitat.
    After assessing the overall habitat at the Ash Meadows National 
Wildlife Refuge in Nevada, we are proposing a reduced area there that 
would be designated as critical habitat. On August 15, 2011, we 
proposed approximately 5.7 km (3.5 miles) of Carson Slough and 100.1 km 
(62.2 miles) of associated unnamed riparian areas as critical habitat 
within the Ash Meadows National Wildlife Refuge in the Amargosa 
Management Unit (76 FR 50542, p. 50568). Following the proposal, we 
collected new information on the available habitat at Ash Meadows and 
reevaluated the potential for flycatcher habitat occurrence on the 
Refuge. We found five separate locations that are essential for 
flycatcher conservation. These proposed locations total about 2.4 km 
(1.5 miles) of stream-side riparian habitat, a reduction of about 103.4 
km (64.2 mi) from the August 15, 2011, proposed revised critical 
habitat in the refuge. Management at these locations will be included 
in the overall management and restoration efforts ongoing at Ash 
Meadows to recover numerous endemic and listed species. Management of 
flycatcher critical habitat will be consistent with and complementary 
to management and recovery needs of the endemic species. Landscape-
level improvements at Ash Meadows will continue to restore the natural 
hydrology, topography, and vegetation communities and provide suitable 
flycatcher habitat, most likely in the form of Goodding's willow (Salix 
gooddingii) and leather-leaf ash (Fraxinus velutina). Both tree species 
are known to be used by flycatchers during migration and sometimes for 
nesting. The current areas proposed for critical habitat are expected 
to provide long-term native plant species communities that will support 
flycatcher habitat.
    We also propose to designate one additional area that occurs in the 
Santa Cruz Management Unit, Pima County, Arizona, within the Gila 
Recovery Unit. This change would lengthen, both upstream and 
downstream, the segment of Cienega Creek that is proposed for 
designation as revised critical habitat. We are also proposing to 
designate as critical habitat two short segments of Empire Gulch, a 
tributary to the headwaters of Cienega Creek. The new segments of 
Cienega Creek and Empire Gulch identified in this document constitute 
an addition of 10.9 km to the areas we proposed for flycatcher critical 
habitat and the description below supplements the description of the 
Santa Cruz Management Unit in the August 15, 2011, proposal (76 FR 
50542, p. 50574). No change is being identified for the proposed 
segment of the Santa Cruz River, also included within this Management 
Unit.

Proposed Critical Habitat Designation

    Based on the changes to the proposed critical habitat area 
discussed below, Table 1 provides an updated accounting of the total 
areas we are proposing as revised critical habitat. This information 
revises Table 2 of the August 15, 2011 proposal (76 FR 50542, pp. 
50561-50562). These data also reflect minor corrections in the 
accounting and mapping of some proposed segments, and present total 
areas (in hectares and acres) in addition to stream lengths reported in 
the proposed rule. We are currently proposing a total of 3,400 stream 
km (2,113 stream mi) encompassing 215,551 hectares (ha) (532,636 acres 
(ac)). This is a net increase of approximately 36 stream km (23 stream 
mi) from our August 15, 2011, proposal (76 FR 50542).

     Table 1--Revision to Table 2 in the August 15, 2011, Proposed Rule (76 FR 50542, pp. 50561-50562). Land
      Ownership, by State, of Proposed Critical Habitat Areas for Southwestern Willow Flycatcher, Listed as
                     Approximate Stream Lengths in km (mi); and Approximate Area in ha (ac)
----------------------------------------------------------------------------------------------------------------
                                                                                                     Other/
       State             Federal             State              Tribal            Private         unclassified
----------------------------------------------------------------------------------------------------------------
AZ................  465 (289); 42,126  52 (33); 4,530     87 (54); 14,257    378 (235); 21,549  0 (0); 417
                     (104,096).         (11,195).          (35,231).          (53,249).          (1,031).
CA................  288 (179); 13,070  14 (9); 428        24 (15); 7,062     0.3 (0.2); 361     656 (408);
                     (32,296).          (1,058).           (17,449).          (893).             27,818
                                                                                                 (68,740).
CA/AZ.............  165 (103); 0 (0).  12 (8); 0 (0)....  79 (49); 0 (0)...  43 (27); 0 (0)...  20 (12); 0 (0).
CO................  33 (21); 3,546     0.2 (0.1); 26      26 (16); 1,064     207 (128); 29,221  9 (6); 575
                     (8,762).           (64).              (2,629).           (72,206).          (1,421).
NV................  42 (26); 2,330     14 (8); 1,061      0 (0); 2 (6).....  21 (13); 1,496     0 (0); 1 (2).
                     (5,757).           (2,622).                              (3,696).
NM................  127 (79); 6,457    64 (40); 10,512    122 (76); 5,036    330 (205); 17,719  0 (0); 0 (0).
                     (15,957).          (25,975).          (12,445).          (43,785).
UT................  41 (26); 1,564     0 (0); 32 (80)...  41 (26); 2,063     36 (22); 1,226     0 (0); 0 (0).
                     (3,864).                              (5,098).           (3,030).
                   ---------------------------------------------------------------------------------------------
    Total.........  1,161 (722);       157 (98); 16,590   380 (236); 29,484  1,015 (631);       685 (426);
                     69,093 (170,731).  (40,995).          (72,857).          71,572 (176,859).  28,811
                                                                                                 (71,573).
----------------------------------------------------------------------------------------------------------------


    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).

Basin and Mohave Recovery Unit

Amargosa Management Unit, CA and NV
    Updated information and further evaluation led us to modify the 
areas we are proposing as critical habitat on the Ash Meadows National 
Wildlife Refuge (see Changes from Previously Proposed Critical 
Habitat). These new areas replace the areas (Carson Slough and the 
unnamed riparian areas) that were identified in the proposed rule (76 
FR 50542, p. 50568). We are proposing as critical habitat five areas on 
the Ash Meadows National Wildlife Refuge in Nye County, Nevada: Soda 
Spring segment (0.5 km, 0.3 miles; 1.2 ha, 3.0 ac); Lower Fairbanks 
segment (0.8 km, 0.5 mi; 2.3 ha, 5.8 ac); Crystal Reservoir segment 
(0.5 km, 0.3 mi; 11.7 ha, 28.9

[[Page 41151]]

ac); North Tubbs segment (0.2 km, 0.1 mi; 0.3 ha, 0.7 ac); and South 
Tubbs segment (0.4 km, 0.2 mi; 0.8 ha, 1.9 ac). These areas were not 
known to be occupied at the time of listing. These segments, together 
with the other segments in the Amargosa Management Unit (stream 
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), are 
essential for 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.

Gila Recovery Unit

Santa Cruz Management Unit, AZ
    We received clarifying information that the proposed critical 
habitat segment on Cienega Creek did not include the location of a 
previously known flycatcher breeding territory as well as other recent 
flycatcher detections and habitat information. We also received new 
information about a breeding flycatcher and quality habitat along 
Empire Gulch (a tributary to the headwaters of Cienega Creek) from 2011 
flycatcher surveys. Because of the limited information we have for 
flycatchers in the Santa Cruz Management Unit, these were important 
observations. As a result, this revision to proposed critical habitat 
extends the length of proposed flycatcher critical habitat on Cienega 
Creek, both upstream and downstream of the segment we identified on 
August 15, 2011 (76 FR 50542, p. 50574), and adds two short segments of 
Empire Gulch to the proposed revised critical habitat designation.
    The new proposed Cienega Creek segment occurs within the boundary 
of the Bureau of Land Management's Las Cienegas National Conservation 
Area. We are extending the flycatcher critical habitat that we are 
proposing for Cienega Creek upstream and downstream from the original 
7.0-km (4.4-mi) segment we proposed on August 15, 2011 (76 FR 50542, p. 
50574), to a new 17.9-km (11.1-mi) segment. This new area includes the 
location of a previously detected flycatcher territory area, locations 
used by migratory flycatchers, and areas that may develop into future 
breeding habitat.
    We were also provided new information during the comment period 
about a breeding flycatcher detected on Empire Gulch (a tributary to 
the headwaters of Cienega Creek) and habitat that may support breeding 
and migrating flycatchers. As a result, we are proposing to designate 
as critical habitat one isolated 0.4-km (0.3-mi) upper segment of 
Empire Gulch and a second 1.3-km (0.8-mi) lower segment of Empire Gulch 
that connects to Cienega Creek. Both of these segments are within the 
Las Cienegas National Conservation Area.
    Neither of these newly proposed segments on Cienega Creek nor those 
on Empire Gulch were known to be occupied at the time of listing; 
however, they are believed to be essential for flycatcher conservation 
because of their ability to develop and sustain flycatcher habitat and 
territories to help meet recovery goals in this Management Unit. As 
noted earlier in this document (see Public Comments), we are 
specifically seeking information about flycatchers and stream segments 
within the Santa Cruz Management Unit. Both the Santa Cruz River and 
Cienega Creek segments were identified in the Recovery Plan as areas 
with substantial recovery value. The addition of the short segments of 
Empire Gulch is based upon flycatcher detections in 2011, and the fact 
that they are immediately adjacent to areas identified in the Recovery 
Plan. These 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 
stream 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.

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

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering 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 (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from 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 or more conservation than a critical habitat designation would 
provide; avoid disproportionate economic impacts resulting from the 
designation of critical habitat; or avoid potential conflicts with 
national security issues or other environmental issues. In the case of 
the flycatcher, the benefits of critical habitat include public 
awareness of the presence of flycatchers and the importance of habitat 
protection, and, where a Federal nexus exists, increased habitat 
protection for flycatchers due to protection from adverse modification 
or destruction of critical habitat. In practice, situations with a 
Federal nexus exist primarily on Federal lands or for projects carried 
out, authorized, or funded by Federal agencies.

Additional Sites Considered for Exclusion From Final Designation of 
Critical Habitat

    We have not proposed to exclude any areas from critical habitat 
under section 4(b)(2) of the Act, but we did identify a number of areas 
we are considering for exclusion from the final revised critical 
habitat designation. We are now considering excluding an additional 
211.0 km (131.1 mi) of proposed critical habitat, bringing the overall 
total of areas considered for exclusions, after revisions to one other 
unit, to 1,451.5 km (901.9 mi) encompassing approximately 135,587 ha 
(335,043 ac). We have included a list in Table 2 and descriptions of 
the additional areas we are considering for exclusion beyond those 
already identified in the August 15, 2011, proposed rule (76 FR 50542, 
pp. 50581-50594). The additional areas are being considered for 
exclusion based on other relevant impacts, and the list below is 
organized by Recovery Unit and Management Unit. The final

[[Page 41152]]

decision on whether to exclude any areas will be based on the best 
commercial and scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a draft economic analysis and draft environmental 
assessment concerning the proposed critical habitat designation, which 
is available for review and comment (see ADDRESSES).
    The following areas, listed in Table 2 and described below, are 
being considered for exclusion from our final critical habitat 
designation, amending those areas described in the August 15, 2011, 
proposed rule (76 FR 50542, pp. 50581-50594).

       Table 2--Amendment to Table 4 in the August 15, 2011, Proposed Rule (76 FR 50542, pp. 50582-50584).
    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
 [Total represent all exclusions from August 15, 2011, proposed rule and the additional and revised areas listed
                                                     here.]
----------------------------------------------------------------------------------------------------------------
                                              Streams segments         Approximate stream length considered for
      Basis for possible exclusion        considered for exclusion               exclusion in km (mi)
----------------------------------------------------------------------------------------------------------------
                                 Santa Clara Management Unit (additional areas)
----------------------------------------------------------------------------------------------------------------
Newhall Land and Farm Conservation       Santa Clara River.........  18.5 km (11.5 mi).
 Easement and Management Plan.
                                         Castaic Creek.............  4.8 km (3.0 mi).
----------------------------------------------------------------------------------------------------------------
                                Bill Williams Management Unit (additional areas)
----------------------------------------------------------------------------------------------------------------
Lower Colorado River Multi-Species       Bill Williams River NWR*--  16.6 km (10.3 mi).
 Conservation Plan (LCR MSCP).            Bill Williams River.
----------------------------------------------------------------------------------------------------------------
                             Hoover to Parker Dam Management Unit (additional areas)
----------------------------------------------------------------------------------------------------------------
LCR MSCP...............................  Havasu NWR--Colorado River  35.2 km (21.9 mi).
----------------------------------------------------------------------------------------------------------------
                 Parker Dam to Southerly International Border Management Unit (additional areas)
----------------------------------------------------------------------------------------------------------------
LCR MSCP...............................  Colorado River (Cibola      17.9 km (11.1 mi).
                                          NWR).
                                         Colorado River (Imperial    38.1 km (23.7 mi).
                                          NWR).
----------------------------------------------------------------------------------------------------------------
                                  Roosevelt Management Unit (additional areas)
----------------------------------------------------------------------------------------------------------------
Pinal Creek Group/Freeport McMoRan       Pinal Creek...............  5.7 km (3.5 mi).
 Management Plan.
----------------------------------------------------------------------------------------------------------------
                               Lower Rio Grande Management Unit (additional areas)
----------------------------------------------------------------------------------------------------------------
Rio Grande Canalization Project........  Rio Grande................  74.2 km (46.1 mi).
----------------------------------------------------------------------------------------------------------------
Subtotal of additional stream length being considered for exclusion  211.0 km (131.1 mi).
                            (this table)
----------------------------------------------------------------------------------------------------------------
                                 San Luis Valley Management Unit (revised areas)
----------------------------------------------------------------------------------------------------------------
San Luis Valley Partnership and          Rio Grande................  141.0 km (87.6 mi).
 Regional Habitat Conservation Plan.
                                         Conejos River.............  69.8 km (43.4 mi).
----------------------------------------------------------------------------------------------------------------
   Total stream length being considered for exclusion (including     1,451.5 km (901.9 mi).
       stream lengths from all areas identified in proposal)
----------------------------------------------------------------------------------------------------------------
* NWR--National Wildlife Refuge.

Coastal California Recovery Unit: Santa Clara Management Unit, 
California
Conservation Easement and Management Plan: Newhall Land and Farming 
Company
    Newhall Land and Farming Company (Newhall) controls land holdings 
and interests along a portion of the Santa Clara River (18.5 km, 11.5 
mi) and Castaic Creek (4.8 km, 3.0 mi) confluence proposed as 
flycatcher critical habitat in Ventura County, California. Newhall has 
existing and proposed conservation easements for these lands. Some of 
the effects of nearby commercial and industrial development have been 
reduced and minimized by implementing conservation measures established 
through planning documents and section 7 biological opinions issued by 
the Service. Of the 655 ha (1,619 ac) of Newhall land within the 
proposed flycatcher critical habitat designation, 119 ha (293 ac) are 
currently within an existing or pending conservation easement, while 
the remaining acreage occurs within future or pending conservation 
easements. We will evaluate the conservation easements, management 
actions, commitments, and assurances associated with these lands for 
potential exclusion from the final revised designation of flycatcher 
critical habitat under section 4(b)(2) of the Act.
Lower Colorado Recovery Unit: Bill Williams, Hoover to Parker Dam, and 
Parker Dam to Southerly International Border Management Units, Arizona 
and California
    Lower Colorado River Multi-Species Conservation Plan (LCR MSCP), 
National Wildlife Refuges

[[Page 41153]]

    In the August 15, 2011, proposed rule (76 FR 50542, p. 50590), we 
described the reasons for considering excluding the areas within the 
LCR MSCP. 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 and habitat conservation 
plan (2005 to 2055). Additional research, management, monitoring, and 
protection of flycatchers and flycatcher habitat from fire, nest 
predators, and brood parasites will occur. In our description of this 
plan, we explained how the LCR MSCP works in conjunction with the four 
National Wildlife Refuges (Bill Williams, Havasu, Cibola, and Imperial) 
along this stretch of the Colorado River for management of flycatcher 
habitat. We intended to include these National Wildlife Refuges as part 
of the areas being considered for exclusion from the final critical 
habitat designation because of the management and protections provided 
by the LCR MSCP. However, we inadvertently omitted these areas from the 
areas calculated in Table 4 of the proposed rule (76 FR 50542, August 
15, 2011, p. 50583). We are now providing notice that the areas being 
considered for exclusion within the LCR MSCP do include the National 
Wildlife Refuges as listed above in Table 2. The refuges occur within 
the Bill Williams Management Unit, Arizona; the Hoover to Parker Dam 
Management Unit, Arizona and California; and the Parker Dam to 
Southerly International Border Management Unit, Arizona and California.
Gila Recovery Unit: Roosevelt Management Unit, Arizona

Management Plan and Partnership: Pinal Creek Group and Freeport-McMoRan 
Remedial Action Program and Flycatcher Management Plan

    The Pinal Creek Group, represented by Freeport McMoRan, is actively 
implementing the Water Quality Assurance Revolving Fund Remedial Action 
Program required by the Arizona Department of Environmental Quality 
Consent Order issued in April 1998 along lower Pinal Creek in Gila 
County, Arizona. These actions occur throughout the proposed 5.7 km 
(3.5 mi) of proposed flycatcher critical habitat. The primary purpose 
of this Remedial Action Program is the monitoring, extraction, and 
treatment of contaminated Pinal Creek groundwater. Implementation of 
these remedial projects has resulted in improved abundance, 
distribution, and quality of riparian habitat for flycatchers.
    The extraction, treatment, and discharge of Pinal Creek groundwater 
onto the surface of the Pinal Creek bed and associated land management 
actions have been the primary actions that have helped establish and 
maintain increased abundance of riparian vegetation. The goal of the 
habitat mitigation and monitoring plan associated with the Remedial 
Action Program is the maintenance and long-term restoration of riparian 
habitat, dominated by native tree species. In addition to a more 
constant surface water and elevated groundwater table available to grow 
riparian plants, cattle grazing pressure on vegetation has been limited 
within the Pinal Creek area through fencing and modification of 
previous grazing strategies. Cattle grazing is now eliminated during 
the growing season (April through October). Also, nonnative plant 
management has reduced the occurrence of flammable plants and the 
potential impacts of wildfire. Much of these lands are also fenced 
properties that limit both public access and actions that could impact 
vegetation. From 1999 to 2007, these actions resulted in a 130 percent 
increase in total riparian vegetation volume within the 117-ha (290-ac) 
mitigation area. We will coordinate with the Pinal Creek Group and 
Freeport-McMoRan and examine what flycatcher conservation actions, 
management plans, and commitments and assurances occur on these lands 
to consider Pinal Creek for exclusion from the final revised 
designation of flycatcher critical habitat under section 4(b)(2) of the 
Act.
Rio Grande Recovery Unit: San Luis Valley Management Unit, Colorado

San Luis Valley Partnership and San Luis Valley Regional Habitat 
Conservation Plan

    In the August 15, 2011, proposed rule (76 FR 50542, p. 50593), we 
described the reasons for considering excluding non-federal lands 
within the San Luis Valley Partnership. However, the total stream miles 
(159.4 km (99.0 mi)) listed in the proposed rule as being considered 
for exclusion in the San Luis Valley mistakenly included Federal lands 
along the Rio Grande. We are not considering excluding those Federal 
lands (18.4 km (11.4 mi)) on the Alamosa National Wildlife Refuge along 
the Rio Grande. So only non-Federal lands totaling 141.0 km (87.6 mi) 
along the Rio Grande and 69.8 km (43.4 mi) along the Conejos River are 
being considered for exclusion in the San Luis Valley Management Unit.
    As one element of the private land conservation efforts, a 
collection of San Luis Valley, Colorado, towns, cities, counties, 
Federal agencies, and the State of Colorado are developing an HCP for 
the San Luis Valley. Public review and completion of the HCP is 
anticipated to overlap the rulemaking timeframe for this flycatcher 
critical habitat revision. The HCP as proposed would cover nearly 1.2 
million ha (3 million ac) and 400 km (250 mi) of riparian habitat that 
could be used by the flycatcher and other riparian and aquatic-based 
species. The acreage covered by the regional 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 proposed as flycatcher critical 
habitat.
    The San Luis Valley Regional HCP, if finalized before the 
completion of the final rule, could be the support for an exclusion 
under section 4(b)(2) of the Act. We are considering excluding the 
proposed segments of the Rio Grande and Conejos River in the San Luis 
Valley Management Unit (excluding the Alamosa NWR) from the final 
designation of revised flycatcher critical habitat.
Lower Rio Grande Management Unit, New Mexico

Management Plan and Partnership: Rio Grande Canalization Project

    The Elephant Butte Irrigation District (EBID), El Paso County Water 
Improvement District No. 1 (EP1), and United States Section of 
the International Boundary and Water Commission (IBWC) are planning 
restoration of riparian habitat along the Rio Grande in New Mexico from 
Percha Dam to American Dam, a portion of which, from Caballo Dam to Ft. 
Selden, has been proposed as critical habitat. The EBID and 
EP1 manage the water from the Rio Grande in Elephant Butte 
Reservoir for beneficial use (including use for agricultural and 
municipal needs), and the IBWC is responsible for maintaining levees 
and channel and floodway management along this section of the lower Rio 
Grande (termed the Rio Grande Canalization Project). EBID, 
EP1, the Audubon Society, and IBWC are establishing an 
agreement for a water transaction program that would provide water in 
the Rio Grande to a number of riparian sites for which IBWC has 
committed restoration plans. Through restoration plan and other 
commitments documented in a 2011 biological assessment, this 
partnership will conduct a variety of flycatcher and flycatcher habitat 
management actions in this area.

[[Page 41154]]

    The restoration plan includes up to 30 riparian restoration sites, 
of which about 8 are specifically designed to create flycatcher habitat 
on at least 21 ha (53 ac) and as many as 42 ha (105 ac), and to include 
management of saltcedar that is intermixed with cottonwood, willow, 
mesquite, and arrowweed to maximize potential value for nesting or 
migratory flycatchers. These sites are to be restored by 2019. The 
restoration plan also calls for discontinuing mowing willows along the 
river for the benefit of flycatchers and planting willows in other 
areas where hydrological conditions are favorable. Restoration efforts 
will also physically reconnect old river channels and lower incised 
banks to the main river channel where appropriate. These efforts should 
result in additional flycatcher habitat beyond the minimum restoration 
sites. The restoration plan has established collaborative relationships 
between the EBID, EP1, IBWC, Audubon Society, and Service to 
benefit the flycatcher, including monitoring for flycatcher presence 
and habitat condition throughout the reach. Because of the commitment 
to a comprehensive flycatcher management plan, development and 
agreements on the water transaction program and overall restoration 
plan, we will consider excluding the Lower Rio Grande segment from the 
final designation of revised flycatcher critical habitat under section 
4(b)(2) of the Act.

Effects of Critical Habitat Designation

Draft Economic Analysis

    The purpose of the draft economic analysis is to identify and 
analyze the potential economic impacts associated with the proposed 
flycatcher critical habitat revision. The draft economic analysis 
describes the economic impacts of all potential conservation efforts 
for the flycatcher; some of these costs will likely be incurred 
regardless of whether we designate critical habitat. The economic 
impact of the proposed critical habitat designation is analyzed by 
comparing scenarios both ``with critical habitat'' and ``without 
critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, considering protections 
already in place for the species (e.g., under the Federal listing and 
other Federal, State, and local regulations). The baseline, therefore, 
represents the costs incurred regardless of whether critical habitat is 
designated. The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts are those not expected to occur absent the 
designation of critical habitat for the species. In other words, the 
incremental costs are those attributable solely to the designation of 
critical habitat, above and beyond the baseline costs; these are the 
costs we may consider in the final designation of critical habitat when 
evaluating the benefits of excluding particular areas under section 
4(b)(2) of the Act. The analysis looks retrospectively at baseline 
impacts incurred since the species was listed, and forecasts both 
baseline and incremental impacts likely to occur if we finalize the 
proposed revised critical habitat designation. For a further 
description of the methodology of the analysis, see Chapter 2, 
``Framework for the Analysis,'' of the draft economic analysis.
    The draft economic analysis provides estimated costs of the 
foreseeable potential economic impacts of the proposed critical habitat 
designation for the flycatcher over the next 20 years (2012-2031) 
which, for most parts of the analysis, was determined to be the 
appropriate period for analysis. This is because limited planning 
information is available for most activities to forecast activity 
levels for projects beyond a 20-year timeframe. The draft economic 
analysis estimates impacts to water management activities, however, 
over a 30-year period (2012-2041).
    The draft economic analysis estimates economic impacts of 
flycatcher conservation efforts associated with the following 
categories of economic activity: (1) Water management activities; (2) 
livestock grazing; (3) residential and related development; (4) tribal 
activities; (5) transportation; (6) mining and oil and gas development; 
and (7) recreation activities. The total potential incremental economic 
impacts for all of the categories in areas proposed as revised critical 
habitat over the next 20 years range from $11 million to $19 million 
($940,000 to $1.7 million annualized), assuming a 7 percent discount 
rate. A very brief summary of the estimated impacts within each 
category is provided below. Please refer to the draft economic analysis 
for a comprehensive discussion of the potential impacts.
Transportation
    Our analysis suggests that transportation activities, such as road 
and bridge construction and maintenance, may experience the largest 
impacts. Transportation projects were more difficult to forecast, 
resulting in potential overstatement of the impacts. Our impact 
estimates were based on an increased level of consultation activity 
(and resulting project modifications for flycatcher conservation 
efforts) that is higher than the historical record of past activities. 
Transportation agencies at the Federal, State, and local level could 
incur costs associated with monitoring and education activities, 
fencing, habitat restoration and creation, timing restrictions, and 
administrative activities. Incremental impacts may reach $5.8 million 
over 20 years.
Water Management
    Impacts to water management activities may be the next largest of 
any of the affected economic activities; however, the majority of the 
impact of conservation efforts to protect flycatcher will occur even if 
critical habitat is not designated (they are baseline impacts). All but 
two of the major dams and reservoirs within flycatcher proposed revised 
critical habitat, the Hansen Dam and the Mohave Dam, are located along 
river segments where the species' presence is either currently 
addressed, or otherwise well known to project proponents and managing 
agencies. Associated impacts in these areas are therefore assumed to be 
baseline, where most conservation activities and associated costs will 
occur regardless of whether critical habitat is designated. An 
exception is Luna Lake in the San Francisco Management Unit; although 
flycatcher territories have been detected in the area, Luna Lake does 
not have existing management plans for the flycatcher, and species 
occupancy may not be well known. Therefore, we assume that forecasted 
water management activity costs there are incremental.
    Incremental impacts over the next 30 years (assuming a 7 percent 
discount rate) range from $1.4 million to $9.6 million. These 
incremental impacts include the costs of conservation efforts 
associated with section 7 consultations or the development of HCPs, as 
well as administrative efforts to consider potential adverse 
modification of habitat as part of future section 7 consultations.
Livestock Grazing
    Impacts to grazing activities are likely to be smaller relative to 
water and transportation activities, but are anticipated to affect a 
broader geographic area. Grazing currently occurs in 27 of the 29 
Management Units that include proposed revised critical habitat. As a 
result, some impacts may be experienced in most units. On Federal 
lands, reductions in grazing allotments are possible depending on the 
specific conditions

[[Page 41155]]

within the unit. The estimated potential, present value incremental 
costs range from $2.2 million to $3.5 million over the 20-year time 
period of the analysis. Impacts include the administrative costs of 
consultation with the Service, the lost value of grazing permits 
associated with reductions in authorized Animal Unit-Months, costs of 
constructing and maintaining fencing, and costs of cowbird trapping.
Residential and Commercial Development
    Residential and related development activities are likely to be 
smaller in magnitude than grazing impacts; however estimated impacts 
are concentrated over a smaller geographic area. Nearly all impacts to 
development activities are estimated to occur in the California 
Management Units. Areas likely to see the greatest development pressure 
include Santa Barbara, Ventura, Los Angeles, Riverside, San Bernardino, 
and San Diego Counties, California, and Mohave County, Arizona.
    Because the proposed revised critical habitat is located within the 
100-year floodplain, the Federal Emergency Management Agency will 
regulate real estate development in any critical habitat we eventually 
designate. As a result, additional restrictions may be imposed by 
individual or local jurisdictions. The restrictions or regulations may 
require flood control facilities or other special engineering, often 
making development in floodways impractical and prohibitively 
expensive. Due to existing development restrictions, lands within 
proposed critical habitat that can be feasibly developed would be 
limited to areas where real estate demand is high enough to justify the 
costs associated with developing the floodplain.
    Incremental impacts to residential development are estimated at 
$810,000 over 20 years. These are related to reduced land value 
associated with the need to set aside land on-site for the flycatcher; 
the need to implement additional project modifications, such as cowbird 
trapping, fencing, monitoring, and habitat management; time delays; and 
administrative costs. Because of the availability of alternative lands 
that would not be designated as critical habitat in these regions, 
these costs are likely to be borne by existing landowners in the form 
of reduced value for their existing properties. The estimated impacts 
would be felt immediately, in 2012, upon promulgation of the final 
rule, and reflect the change in the future, productive use of the 
properties.
Tribal Activities
    Incremental impacts to tribal activities of approximately $660,000 
are estimated to be associated with administrative impacts over the 20-
year time frame of the analysis. However, tribal concerns focus on the 
potential impact that the designation could have on their ability to 
make use of natural resources, including water rights, on their 
sovereign lands. The absence of some cost information related to 
potential impacts of flycatcher critical habitat on tribal lands 
results in a probable underestimate of future costs to tribal entities. 
Lands belonging to 20 Tribes included within the boundaries of proposed 
revised critical habitat are under consideration for exclusion from the 
final designation.
Mining, and Oil and Gas Development
    In 2005, potential impacts to oil and gas development were not 
identified as a significant issue and thus were not considered in the 
previous economic analysis. However, proposed revised critical habitat 
in the San Juan Management Unit in San Juan County, Utah, and La Plata 
County, Colorado, generated concern, because this area serves as a 
highly-developed source of oil and natural gas, with hundreds of 
existing wells. Due to the level of existing protections in riparian 
areas required by, or agreed to by, oil and gas developers and land and 
resource managers, no project modification costs are expected as a 
result of the designation of revised flycatcher critical habitat. 
However, baseline administrative costs of $33,000 for one formal and 
six informal consultations are expected due to limited oil and gas 
activities, including seismic studies and pipeline construction and 
maintenance. In addition to baseline costs, the analysis forecasts 
$11,000 in incremental administrative costs to consider adverse 
modification as part of these consultations.
    While few active mineral mining activities occur within the 
proposed revised critical habitat, the mining industry has expressed 
concern that water use by existing or potential mining operations could 
be affected by flycatcher conservation activities, particularly the 
designation of critical habitat. There are currently no data that 
indicate whether existing or future diversions of water for mining 
activities (including groundwater pumping) reduce stream flow or modify 
hydrologic conditions to the degree that adversely impacts the 
flycatcher and its riparian habitat. As such, the analysis does not 
quantify the probability or extent to which water use for mining 
purposes would need to be curtailed or modified to remedy impacts to 
flycatcher. Additionally, impacts to extractive mining operations, such 
as sand and gravel pits, that cause direct habitat loss may occur as 
the result of critical habitat designation. However, project 
modification costs associated with these operations are uncertain due 
to the limited consultation history, and, as a result, our analysis is 
unable to forecast economic impacts for mining activities.
Recreation
    Incremental impacts to recreational activities are unlikely to 
result from the designation. In the baseline, activities may be 
affected at Lake Isabella and Lake Roosevelt; however, baseline 
economic impacts in these areas are likely to be limited to $1.9 
million over 20 years. In addition, management activities at a picnic 
site in the San Bernardino National Forest results in present value 
baseline costs of $40,100.

Draft Environmental Assessment

    The purpose of the draft environmental assessment, prepared 
pursuant to the NEPA, is to identify and disclose the environmental 
consequences resulting from the proposed action of designating revised 
critical habitat for the flycatcher (please see further NEPA discussion 
below). In the draft environmental assessment, three alternatives are 
evaluated: Alternative A, the proposed rule with exclusion areas; 
Alternative B, proposed rule without exclusion areas; and the no action 
alternative that would leave the 2005 designated critical habitat in 
place. Under Alternative A, stream segments identified as being 
considered for exclusion could potentially be excluded in the final 
rule based on economic impact, national security, or other relevant 
impacts. The no action alternative is required by NEPA for comparison 
to the other alternatives analyzed in the draft environmental 
assessment. See ADDRESSES for information on how to obtain a copy of 
the draft environmental assessment.
    As we stated earlier, we are soliciting data and comments from the 
public on the draft economic analysis and draft environmental 
assessment, as well as all aspects of the proposed rule and our amended 
required determinations. We may revise the proposed rule or supporting 
documents to incorporate or address information we receive during the 
public comment period. In particular, we may exclude an area from 
critical habitat if we determine that the benefits of excluding the 
area outweigh

[[Page 41156]]

the benefits of including the area, provided the exclusion will not 
result in the extinction of this species.

Required Determinations--Amended

    In our August 15, 2011, proposed rule (76 FR 50542, pp. 50594-
50596), we indicated that we would defer our determination of 
compliance with several statutes and executive orders until the 
information concerning potential economic impacts of the designation 
and potential effects on landowners and stakeholders became available 
in the draft economic analysis. We have now made use of the draft 
economic analysis data to make these determinations. In this document, 
we affirm the information in our August 15, 2011, proposed rule 
concerning E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), 
the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and the President's 
memorandum of April 29, 1994, ``Government-to-Government Relations with 
Native American Tribal Governments'' (59 FR 22951). However, based on 
the draft economic analysis data, we are amending our required 
determination concerning the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). We are also updating our determinations concerning E.O. 12630 
(Takings), E.O. 13211 (Energy, Supply, Distribution, and Use), and the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.).

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Based on our draft economic analysis of the 
proposed designation, we provide our analysis for determining whether 
the proposed rule would result in a significant economic impact on a 
substantial number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
the flycatcher would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities, such as (1) transportation; (2) water 
management; (3) livestock grazing; and (4) residential and commercial 
development. Other activities analyzed in the economic analysis, in 
particular, impacts to mining and recreation, found no incremental 
impacts and so were not further analyzed for effects on small entities. 
In order to determine whether it is appropriate for our agency to 
certify that this proposed rule would not have a significant economic 
impact on a substantial number of small entities, we considered each 
industry or category individually. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement. Critical habitat designation 
will not directly affect activities that do not have any Federal 
involvement; designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies. In 
areas where the flycatcher is present, Federal agencies already are 
required to consult with us under section 7 of the Act on activities 
they fund, permit, or implement that may affect the species. If we 
finalize the proposed revised critical habitat designation, 
consultations to avoid the destruction or adverse modification of 
critical habitat would be incorporated into the existing consultation 
process.
    In the draft economic analysis, we evaluated the potential economic 
effects on small entities resulting from implementation of conservation 
actions related to the proposed revised designation of critical habitat 
for the flycatcher. Please refer to Appendix A in the draft economic 
analysis of the proposed critical habitat designation for a more 
detailed discussion of potential economic impacts. Our analysis of the 
five industries with possible incremental impacts on small business was 
based on the proportion of small entities affected within each industry 
and the annualized costs per entity as a percent of annual revenues. 
The following summary highlights the results of our analysis:
    (1) For water management, we estimated that 1 small entity could be 
affected, representing 0.07 percent of the 1,350 small entities in the 
study area. The annualized effects represent 0.01 to 0.08 percent of 
the annual revenues of that one entity.
    (2) For livestock grazing and residential and commercial 
development, the analysis distinguishes between entities expected to 
bear project modification costs with administrative costs and those 
expected to bear only administrative costs because the expected 
magnitude of impacts differs significantly across the two groups. We 
estimated three small grazing entities could be affected by both 
project modification and administrative costs, representing 0.49 
percent of the 517 small entities in the study area. The annualized 
impacts per small entity in this group are expected to range from 0.24 
percent to 0.43 percent of annual revenues. A further 29 small grazing 
entities may incur some minor administrative costs associated with 
informal consultations and technical assistance efforts, representing 
approximately 5.6 percent of small grazing entities across the study 
area. Annualized impacts per small entity for this group of 29 are 
estimated at 0.12 percent of annual revenues.
    (3) We estimated 1 small entity in the residential and commercial 
development industry could be affected by land value loss and 
administrative costs, representing less than 0.01 percent of the 76,516 
small entities in the study area. The annualized effects represent 5.72 
percent of the annual revenues of that entity. We estimated 6

[[Page 41157]]

small residential and commercial development entities could experience 
administrative costs only, representing less than 0.01 percent of the 
small entities in the study area. The annualized effects per small 
entity for this group represent 0.05 percent of annual revenues.
    (4) For transportation, we forecast some administrative costs 
associated with roads that may be managed by county or city 
governments. Using GIS data to identify where roads cross the proposed 
revised critical habitat designation, the analysis forecasts informal 
and technical assistance efforts in 4 counties out of the 49 counties 
in the study area. Of these counties, 3 counties, or 75 percent, have 
populations falling below 50,000 and therefore are considered small. 
Third-party administrative costs for these three counties represent 
between 0 and 0.06 percent of the respective county's annual revenues.
    (5) For oil and gas development, we estimated 7 small entities 
could be affected, representing 2.3 percent of the 300 small entities 
in the study area. The annualized effects per small entity represent 
less than 0.01 percent of annual revenues.
    None of the impacts rises to a level of a significant economic 
impact on a substantial number of small entities. We did estimate a 
substantial number of small livestock grazing entities (5.6 percent) 
could be impacted due to potential additional administrative costs. 
However, the impacts are not significant because they represent only 
0.12 percent of the estimated annual revenues of those small entities. 
Alternately, we estimated an economic impact of 5.72 percent of annual 
revenues for one small entity in the residential development industry 
based on forecasted land value loss and administrative costs. However, 
this entity represents a very small percentage of small entities (less 
than 0.01 percent) in the development industry that will be affected. 
So although there is one industry (livestock grazing) with a 
substantial number of entities affected, and one industry (residential 
development) that has a small entity with potentially substantial 
impacts, there are no industries with significant economic impacts on a 
substantial number of small entities.
    In summary, we have considered whether the proposed designation of 
revised critical habitat for the flycatcher would result in a 
significant economic impact on a substantial number of small entities. 
Information for this analysis was gathered from the Small Business 
Administration, stakeholders, and the Service. We have estimated the 
number of small entities that may be impacted in each industry affected 
by the proposed critical habitat designation. For the above reasons and 
based on currently available information, we certify that, if 
promulgated, the proposed critical habitat designation will not have a 
significant economic impact on a substantial number of small business 
entities. Therefore, an initial regulatory flexibility analysis is not 
required.

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) will review all significant 
rules. The OIRA has determined that this rule is not significant. E.O. 
13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Takings--Executive Order 12630

    In this document, we affirm the information in our proposed rule 
concerning E.O. 12630 (Takings), having reviewed the preliminary 
assessment and the draft economic assessment, and prepared a Takings 
Implication Assessment. Although there may be some costs likely to be 
borne by existing landowners in the form of reduced value for their 
existing properties, these impacts are not expected to be significant, 
and therefore will not result in a significant takings implication.

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

    We stated in our August 15, 2011, proposed rule that the proposed 
revised designation is not expected to significantly affect energy 
supplies, distribution, or use because there are no pipelines, 
distribution facilities, power grid stations, etc. within the 
boundaries of proposed revised critical habitat. However, the San Juan 
Management Unit in San Juan County, Utah, and La Plata County, Colorado 
is expected to sustain limited oil and gas activities, including 
seismic studies and pipeline construction and maintenance. Our draft 
economic analysis reflects that we do not expect these activities to 
incur any project modification costs, but the analysis does estimate 
that over the next 20 years, there will be about $11,000 in incremental 
administrative costs to consider adverse modification as part of 
consultations on these activities. We do not consider these costs to be 
significant. Therefore, we affirm that this action is not a significant 
energy action and no Statement of Energy Effects is required.

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 NEPA in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This 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, because 
the range of the flycatcher includes States within the Tenth Circuit 
and 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 have undertaken a NEPA analysis and drafted an 
environmental assessment for the proposed critical habitat designation.
    We have completed a draft environmental assessment, and it is now 
available for public review and comment (see ADDRESSES). The draft 
environmental assessment found that the designation of critical habitat 
for the southwestern willow flycatcher would not have direct impacts on 
the environment; designation is not expected to impose land use 
restrictions or prohibit land use activities. However, the designation 
of critical habitat could: (1) Increase the number of additional 
section 7 consultations for proposed projects within designated 
critical habitat; (2) increase the number of reinitiated section 7 
consultations for ongoing projects within designated critical habitat; 
(3) maintain the southwestern willow flycatcher's primary constituent 
elements; (4) increase the likelihood of greater expenditures of time 
and Federal funds

[[Page 41158]]

to develop measures to prevent both adverse effects to the species and 
adverse modification to critical habitat; and (5) indirectly increase 
the likelihood of greater expenditure of non-Federal funds by project 
proponents to complete section 7 consultations and to develop 
reasonable and prudent alternatives (to avoid adverse modification of 
critical habitat by Federal agencies) that maintain critical habitat. 
Such an increase might occur where there is a Federal nexus to actions 
within areas with no known flycatcher territories, or from the addition 
of adverse modification analyses to jeopardy consultations in known 
flycatcher habitat.
    Based on comments we received in preparing the previous critical 
habitat designation in 2005, internal scoping within the Service, a 
review of the previous consultation history of the species, and a 
review of public comments we received on the August 15, 2011, proposed 
rule, the Service analyzed the potential impacts of critical habitat 
designation on the following resources and resource management types: 
land use and management; fish, wildlife, and plants (including 
endangered and threatened species); fire management; water resources 
(including water management projects and groundwater pumping); 
livestock grazing; construction and development; tribal trust 
resources; soils and mineral resources; recreation; socioeconomics; and 
environmental justice.
    The primary purpose of preparing an environmental assessment under 
NEPA is to determine whether a proposed action would have significant 
impacts on the human environment. If significant impacts may result 
from a proposed action, then an environmental impact statement is 
required (40 CFR 1502.3). Whether a proposed action exceeds a threshold 
of significance is determined by analyzing the context and the 
intensity of the proposed action (40 CFR 1508.27). The draft 
environmental assessment found that the impacts of the proposed 
critical habitat designation would be minor and not rise to a 
significant level, so preparation of an environmental impact statement 
is not required.

Authors

    The primary authors of this notice are the staff members of the 
Arizona Ecological Services Office and the Southwest Regional Office, 
U.S. Fish and Wildlife Service.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 76 FR 50542, August 15, 2011, as follows:

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; Public Law 99-625, 100 Stat. 3500; unless otherwise 
noted.

    2. Amend Sec.  17.95(b) by revising paragraphs (b)(4), (b)(5), 
(b)(14), and (b)(28) of the entry for ``Southwestern Willow Flycatcher 
(Empidonax traillii extimus)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *
    Southwestern Willow Flycatcher (Empidonax traillii extimus)
* * * * *
    (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. The 
maps in this entry, as modified by any accompanying regulatory text, 
establish the boundaries of the critical habitat designation. The 
coordinates or plot points or both on which each map is based are 
available to the public at the Service's internet site, http://www.regulations.gov at Docket No. FWS-R2-ES-2011-0053 and at the field 
office responsible for the designation. You may obtain field office 
location information by contacting one of the Service regional offices, 
the addresses of which are listed at 50 CFR 2.2.
    (5) The index map of southwestern willow flycatcher critical 
habitat units follows:
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[[Page 41159]]

[GRAPHIC] [TIFF OMITTED] TP12JY12.000

* * * * *
    (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
Soda Spring-Ash Meadow NWR.................  11, 559403, 4038347..............  11, 559129, 4038029
Lower Fairbanks-Ash Meadow NWR.............  11, 557830, 4036090..............  11, 557906, 4035290
Crystal Reservoir-Ash Meadows NWR..........  11, 561025, 4028706..............  11, 561307, 4028269
North Tubbs-Ash Meadows NWR................  11, 562782, 4025402..............  11, 562970, 4025330
South Tubbs-Ash Meadows NWR................  11, 563505, 4025681..............  11, 563483, 4025650
----------------------------------------------------------------------------------------------------------------

     (ii) Ash Meadows Riparian Areas and Carson Slough (UTM zone 11, E, 
N): [Reserved]
    (iii) Map of Amargosa Management Unit follows:

[[Page 41160]]

[GRAPHIC] [TIFF OMITTED] TP12JY12.001

* * * * *

[[Page 41161]]

    (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, 543034, 3528728..............  12, 538757, 3515860
Empire Gulch (upper).......................  12, 534569, 3516911..............  12, 534222, 3516970
Empire Gulch (lower).......................  12, 538826, 3519337..............  12, 538662, 3518116
----------------------------------------------------------------------------------------------------------------

     (ii) Map of Santa Cruz Management Unit follows:
    [GRAPHIC] [TIFF OMITTED] TP12JY12.002
    

[[Page 41162]]


* * * * *

    Dated: June 28, 2012.
Michael J. Bean,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-16990 Filed 7-11-12; 8:45 am]
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